HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved
Case :- CRIMINAL APPEAL No. – 1105 of 2000
Appellant :- Ram Pal
Respondent :- State Of U.P.
Counsel for Appellant :- S.B.Singh,Arjun Kumar Kaushal
Counsel for Respondent :- Govt.Advocate
Hon’ble Virendra Kumar-II,J.
1. Heard Mr. Arjun Kumar ‘Kaushal’, learned counsel for appellant and Mr. Izhar Hussain, learned A.G.A. for the State.
2. Appellant Ram Pal has preferred this appeal assailing impugned judgment and order dated 2.12.2000 passed by Special Judge, Sitapur in Sessions Trial No. 374 of 1996, under Sections 363, 366, 342, 376 and 506 I.P.C. The appeal has been convicted for offences punishable under Section 376 I.P.C. and sentenced to undergo ten years rigorous imprisonment and fine of Rs. 2,000/- has also been imposed on him. Vide impugned judgment co-accused Suresh has been acquitted by trial court finding that evidence against him was deficient and charges framed against him could not be proved by prosecution.
3. It is pleaded in grounds of appeal that impugned judgment and order dated 2.12.2000 has been passed on assumption and presumption. The trial court has not scrutinized the evidence available on record. On the basis of same evidence, co-accused Suresh has been acquitted and appellant has been convicted. the defence version taken by the appellant has not been considered by the trial court and it believed very doubtful story of prosecution. The evidence available on record has not been properly appreciated by the trial court.
4. On the above-mentioned grounds, impugned judgment and order dated 2.12.2000 has been assailed.
5. I have perused record of Sessions Trial No. 374 of 1996 (State Versus Ram Pal).
6. As per prosecution version, complainant PW-1 Shri Mahesh submitted a written/typed report on 12.6.1993 at 18:05 hours at Police Station Biswan District Sitapur and crime no. 182 of 1993 was registered against appellant Ram Pal and co-accused Raja Ram and Suresh for offence punishable under Sections 342, 363 and 506 I.P.C.
7. It is informed to the concerned police station that co-accused Raja Ram was his ‘Samdhi’ and Suresh was his son in law. His younger daughter (Majhli) was married with Suresh. Co-accused Raja Ram came at house of complainant 20-25 days prior to lodging of F.I.R. and stated that your ‘Majhli’ daughter was ill and his house was being constructed. He requested the complainant to send his younger daughter/victim aged about 13 years to assist his family affairs. Raja Ram assured him to send back victim after sometime at the earliest. The complainant went at house of Raja Ram after ten days and Raja Ram told him that victim will be sent back after 2-4 days. The complainant again approached accused persons then they declined to send back victim and threatened the complainant to eliminate him. Accused persons told to the complainant that they will not send the victim with him. The complainant anticipated the accused persons would commit rape with his minor daughter or eliminate her. He requested that his daughter be got released from the custody of accused persons.
8. After lodging of F.I.R. on the basis of typed/written report(Ex. Ka-1), PW-5 Investigating Officer raided the house of accused Raja Ram and the victim was recovered from the custody of appellant Ram Pal. The victim was given in custody of complainant on 15.6.1993 after execution of recovery memo (Ex. Ka-6) and Supurdaginama (Ex. Ka-7). The victim was medically examined by PW-4 Dr. Pramila Tiwari and examination report (Ex. Ka-3) and supplementary report (Ex. Ka-4) were prepared by her. PW-3 Dr. R.K. Srivastava got x-ray conducted in his supervision on 14.6.1993 and X-ray report (Ex. Ka-12) and x-ray plate material (Ex. Ka-13) were prepared.
9. PW-5 prepared site plan (Ex. Ka-5) and statements of witnesses were recorded by him during course of investigation. After his transfer another Investigating Officer Sri S.K. Gangwar after concluding investigation, submitted charge sheet (Ex. Ka-8) against appellant Ram Pal.
10. Learned Additional Civil Judge (Senior Division) Ist/ACJM, Sitapur committed the case on 20.2.1996 against appellant to the court of Sessions Judge, Sitapur. Special Judge, Sitapur framed charges against appellant Ram Pal on 19.11.1996 for offence punishable under Sections 363, 342, 376 and 506 I.P.C. On the basis of evidence adduced on behalf of prosecution co-accused Suresh was summoned under Section 319 Cr.P.C. on 30.5.1997. Co-accused Raja Ram had expired during course of trial, which is mentioned in order dated 30.5.1997.
11. Special Judge, Sitapur framed charges against co-accused Suresh on 16.9.1997 for offences punishable under Sections 363, 342, 366, 376 and 506 I.P.C. Both the accused persons, Ram Pal and Suresh pleaded not guilty and claimed to be tried.
12. PW-1 complainant Shri Mahesh, PW-2 victim, PW-3 Dr. R.K. Srivastava, Radiologist, PW-4 Dr. Pramila Tiwari, who conducted medical examination on victim, PW-5 S.I. Ram Swaroop Singh, PW-6 Constable Ram Chandra were examined on behalf of prosecution and these witnesses proved the above-mentioned documents.
13. Statements of appellant Ram Pal and co-accused Suresh were recorded under Section 313 Cr.P.C. on 11.9.2000. They denied their involvement in this crime. It was stated by these accused persons that complainant Mahesh was residing in the house constructed on the land of owned by co-accused Suresh and he cultivated the agricultural land on ‘Batai’. When this land was not given to him for cultivation, then accused persons were falsely implicated in this crime. Appellant Ram Pal has also stated that he assisted co-accused Suresh, therefore, he was implicated in this crime. Accused persons produced DW-1 Lal Mohammd to support their defence version.
14. The trial court, after appreciation of evidence, convicted and punished the appellant Ram Pal as mentioned-above.
15. Learned counsel for appellant has argued that there is delay of 25 days for lodging F.I.R. by PW-1 complainant Mahesh. The trial court has appreciated the evidence of PW-1 and PW-2. For appreciating this argument put-forth by learned appellant counsel, I have also perused the statements of these witnesses on the basis of facts narrated in written report Ex. Ka-1, on the basis of which, Check report Ex. Ka-9 was recorded at police station Biswan.
16. It is mentioned in the F.I.R. that Shri Raja Ram (since dead), who was ‘Samdhi’ of PW-1 complainant Mahesh, brought victim for 5-10 days on the pretext that her elder sister, who was wife of his son, was ill and his house was being constructed. The victim was brought by him to assist his family affairs.
17. PW-1 complainant Mahesh has stated that after ten days, he went at the house of co-accused Raja Ram and Suresh to bring the victim with him. But both the accused told him that after 2-4 days, they will send back the victim. He again approached co-accused persons to send the victim with him but they finally denied and threatened him to eliminate him.
18. PW-1 has proved this fact that the victim was aged about 13 and a half years on the date of incident and she was minor. PW-1 complainant Mahesh soleminized marriage of his elder daughter Rekha with co-accused Suresh son of Raja Ram. During his cross examination, PW-1 complainant Mahesh has also stated that his daughter (victim) was aged about 13-14 years and she was minor. He has refuted this suggestion that he solemnized marriage of victim with a boy aged about 32-35 years after receiving amount of Rs. 25,000/-.
19. PW-1 complainant Mahesh has proved Ex. Ka-1 a typed report and during his cross-examination, he has stated that he lodged F.I.R. of this incident after 20-25 days. He has reiterated in cross examination also that he went to bring the victim after 10-15 days. PW-1 complainant Mahesh during his cross-examination has stated that when he visited house of co-accused persons , Raja Ram and Suresh, he was not allowed to talk with the victim and they refused to send back the victim with him.
20. PW-2, the victim, in her examination in chief has stated that her father came at house of co-accused Raja Ram and Suresh twice after sending her at their house. She has stated that co-accused Raja Ram and Suresh did not send her with her father and she was detained by them. They obtained her thumb impression on plain paper and compelled her to live with Ram Pal as his wife forcibly. During her cross-examination, she has disclosed that co-accused Raja Ram brought her from house of her father in conducive atmosphere. She has further stated that when police raided at the house of co-accused Raja Ram she and appellant Ram Pal were alone. Nobody was present there. She remained in house of Raja Ram for 20-25 days. She has further stated that villagers might have not seen her. She has disclosed this fact that appellant Ram Pal was residing on the date of occurrence in house of co-accused Suresh and Raja Ram. In his cross-examination, PW-1 complainant Mahesh has stated that accused Ram Pal never visited his house and when he visited house of Raja Ram, he saw that Ram Pal was residing there. He has also stated in his cross-examination that appellant Ram Pal is nephew of co-accused Raja Ram. PW-2 Victim has also stated that she never visited house of Raja Ram prior to the date of incident.
21. Therefore, PW-1 and PW-2 have proved this fact that complainant Mahesh sent her daughter along with co-accused Raja Ram (since dead) on his assurance that victim will be sent back after 5-10 days. Raja Ram brought her on the pretext to look after her elder sister Smt. Rekha, his daughter in law and to assist in family affairs, because house of Raja Ram was also being constructed at this point of time.
22. PW-1 and PW-2 have also proved this fact that complainant Mahesh tried twice to bring back her daughter victim at his house and visited house of co-accused Raja Ram and Suresh where appellant Ram Pal was also residing permanently, but the appellant and other co-accused persons did not permit the victim to go with her father.
23. Therefore, delay of 20-25 days in lodging F.I.R. of this crime at Police Station Biswan was explained by PW-1 and PW-2 on behalf of prosecution and delay in lodging F.I.R. is not fatal in the facts and circumstances of the case.
24. Regarding delay in lodging F.I.R. following exposition of law propounded by Hon’ble Supreme Court is relevant:-
25. In this regard, in the case of State of Punjab vs. Gurmit Singh others reported in 1996 SCC (2) 384 the Hon’ble Supreme Court has held as under:-
“The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the Bus Adda is traverisity of justice. The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alram.
Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account.
In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.
The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the center and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court over-looked that a girl, in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination center under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one else at the examination center prior thereto is an accord with the natural human conduct of a female.
The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.
The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.
The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.
It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
The Hon’ble Supreme Court in case of Ponu Samy Vs. State of Tamilnadu reported at (2008) 5 SCC 587 (c), has held that police Apathey and village women’s endeavour, social condition of complainant can be taken into account while considering delay in lodging F.I.R.
In case of Vishwanathan Vs. State reported at (2008) 5 SCC 354, Hon’ble Supreme Court held that prosecution case should not be thrown out on ground of delay other factors like trauma suffered by victim, sociological factors alongwith other evidence should be taken into consideration.
In case of Animireddy Venkatramana Vs. Public Prosecutor High Court A.P. reported (2008) 5 SCC 368 (f d), the Hon’ble Supreme Court held that discrepancies in F.I.R. merely because case against some accused named in it could not be established or some inquiries were made to ascertain truth of incident prosecution case cannot be discarded. F.I.R. need not be encyclopedic, each and every detail need not to be stated in it. Court has to ascertain about possibility of false implication of accused. It is also observed that probable, physical and mental condition of informant is relevant.
In case of Darshan Singh and others Vs. State of Punjab reported at AIR 1983 SC 554, the Hon’ble Supreme Court held that the fact that the names of some accused are not mentioned in the FIR is a circumstance which the prosecution has to explain, though, no rule of law stipulates that an accused whose name is not mentioned in the FIR is entitled to acquittal.
Eqbal Baig Vs. State of A.P. reported at AIR 1987 SC 923, the Supreme Court held that non-mention of name of accused in FIR and inquest report by witness not a ground for rejecting his evidence.
In case of Betal Singh Vs. State of M.P. reported at 1996 Crl.J. page 4006 (SC), Babu Singh Vs. State of Punjab 1996 (33) ACC 474 SC Baldev Singh Vs. State of Punjab 1995 ACC 752 (SC) Bijay Singh Vs. State of Bihar 2003 SCC (Crl.) 1093, Hon’ble Supreme Court in these cases has held that mention of few facts or vague facts or if detailed particulars of occurrence are not mentioned in the FIR, then minute details of occurrence is not required as FIR is not encyclopedia of occurrence. In case of Bijay Singh (supra), it is also held that FIR is not substantive piece of evidence of occurrence.
In case of Raghbir Singh Vs. State of Haryana reported at 2000 CRLJ 2463 (SC), the Hon’ble Supreme court has held that if injured was sent to hospital for treatment first, then FIR was lodged then delay is very well explained and it will not affect prosecution adversely.
In case of Bhaskaran Vs. State of Kerala reported at 1998 (9) SCC 12/AIR 1998 SC 476, the Hon’ble Supreme court has held that distance of police station from place of occurrence was 15 km in this case. No conveyance was available. FIR was lodged after 24 hrs. In these circumstances, it was held that evidence of eye witness cannot be disbelieved on the ground that they made no attempt to save the deceased from attack. Investigating Officer had not seized the torch source of light. The evidence of eye witness was not discarded.
Hon’ble Supreme Court in case of Ravinder Kumar and Anr. vs. State of Punjab reported at AIR 2001 SC 3570 observed as under :-
……The attack on the prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. OF course a prompt and immediate lodging of the FIR is the ideal as that would given the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
….. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among urban people also. They might not immediately think of going as the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or seductiveness of temper of moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
…… We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; Jamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”
….. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; Jamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”
Hon’ble Supreme Court regarding proof of motive of a crime by the prosecution :
It is further observed that :-
…… The third contention is that the motive alleged by the prosecution was not established and hence the area remains gray as to what would have impelled them to liquidate the broker. No doubt it is the allegation of the prosecution that appellants owed a sum of Rs. one lakh to the deceased and it might not have been possible for the prosecution to prove that aspect to the hilt. Nonetheless some materials were produced for showing that three were transactions between the appellants and the deceased and that they had some account to be settled. Only thus far could be established but not further. It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have ben the cause for the murder. In this connection we deem it useful to refer to the observation of this Court in State of Himachal Pradesh vs. Jeet Singh MANU/SC/0165/1999 : 1999CriLJ2025 : “No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such as degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.”
Hon’ble the Supreme Court in the case of Mukesh and others Vs. State of NCT of Delhi and others reported in (2017) 6 SCC 1 has observed as under:
According to Hon’ble Mr. Justice Dipak Mishra for himself (presently Hon’ble C.J.I.) and Hon’ble Mr. Justice Ashok Bhushan held in paragraph nos. 49, 53, 55, 56 and 57 regarding delay in lodging F.I.R. in cases of offence committed against women and other victims as follows :-
49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.
53. In State of Himachal Pradesh v. Rakesh Kumar (2009) 6 SCC 308, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.
Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no delay in lodging of the FIR.
55. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful.
56. In Rattan Singh v. State of H.P. (1997) 4 SCC 161, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in Pedda Narayana v. State of A.P. (1975) 4 SCC 153; Sone Lal v. State of U.P. (1978) 4 SCC 302; Gurnam Kaur v. Bakshish Singh 1980 Supp SCC 567.
57. In State of Uttar Pradesh v. Naresh and Ors (2011) 4 SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan (2006) 12 SCC 64 and Ranjit Singh v. State of M.P. (2011) 4 SCC 336.
26. On the basis of exposition of law, propounded by Hon’ble Surpeme Court, the contention putforth on behalf of appellant regarding delay in lodging F.I.R. is immaterial and not fatal for the prosecution.
27. Learned counsel for appellant has further argued that PW-2 victim was aged in between 16-17 years on the date of occurrence. According to medical evidence adduced by PW-3 Dr. R.K. Srivastava, Radiologist and PW-4 Dr. Pramila Tiwari, no mark of injuries were found on 14.6.1993 on the private part of victim. It is mentioned that no spermatozoa was found in pathological slide of smear of vagina of the victim prepared by PW-4. Her hymen was torn and healed. She was accustomed to sexual intercourse. She was consenting party to the alleged act committed by the appellant. Learned counsel for appellant has further argued that the victim did not attempt to escape from house of appellant and co-accused, nor apprised villagers about the incident committed by appellant.
28. It is further argued that the prosecution has not produced any independent witness regarding the fact that the appellant and co-accused persons detained the victim at house of Raja Ram for 20-25 days where the appellant committed rape with the victim.
29. Mr. Izhar Hussain, learned A.G.A. has argued and relied upon a decision of Hon’ble Supreme Court in the case of Aslam Vs. State of U.P. connected with Galli Vs. State of Uttar Pradesh reported in 2014 Cri L J 1576 wherein it has been held in paragraph nos. 8, 9 and 10 as under:-
8. With the able assistance of both the learned counsel, we have carefully perused and analyzed the evidence of the Prosecution Witnesses and, in particular, the evidence of PW-1. In our opinion, the evidence of the said witnesses is not only reliable but also trustworthy.
9. This Court has held that if, upon consideration of the prosecution case in its entirety, the testimony of the prosecutrix inspires confidence in the mind of the Court, the necessity of corroboration of her evidence may be excluded. This Court in Rajinder v. State of Himachal Pradesh, (2009) 16 SCC 69 has observed as under:
“18. This Court, in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 made the following weighty observations in respect of evidence of a victim of sexual assault: (SCC pp. 395-96, para 8)
“8. … The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
(emphasis in original)
19. In the context of Indian culture, a woman–victim of sexual aggression–would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self- respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.”
10. The Trial Court, keeping in view the evidence of PW-1, has come to the conclusion that the accused persons have committed the offence falling within the parameters of Section 376 read with 34 of the IPC. This view of the Trial Court is affirmed by the High Court once again after re-appreciating the entire evidence on record. In our considered view, neither the Trial Court nor the High Court has committed any error, whatsoever, which would call for our interference in these appeals. Accordingly, the appeals stand dismissed.
30. Learned A.G.A. has further argued that corroboration by the evidence of doctor, who conducted, medical examination, was not required, because the evidence of PW-2 victim is reliable and trustworthy and is inspiring confidence. He has further argued that absence of injury on private part of prosecutrix would not render her testimony doubtful. PW-2 victim was in custody of accused persons on the date of incident. Therefore, it is immaterial that the victim did not apprise any villager about her ordeal or she did not attempt to escape from the house of appellant and co-accused persons, where she was kept by them.
31. The age determination by medical evidence of the victim depends upon various factors, which are enumerated in Modi A Textbook of Medical Jurisprudence and Toxicology 24th Edition Reprint 2012, which reads as follows:-
Ossification of Bones.-This sign is helpful for determining age until ossification is completed, for skiagraphy has now made it possible to determine even in living persons, the extent of ossification, and the union of epiphysis in bones. Owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different states of India, it cannot be reasonably expected to formulate a uniform standard for the determination of the age of the union of epiphysis for the whole of India. However, from investigations carried out in certain provinces, it has been concluded that the age at which the union of epiphysis takes place in Indians, particularly of persons belonging to Bengal, Punjab and South India, is about two to three years in advance of the age incidence in Europeans, and that the epiphyseal union occurs in females somewhat earlier than in males. SM Das Gupta et a 1, has also reported that in the State of Uttar Pradesh this fusion occurs somewhat earlier in girls than in boys, usually by one to two years. SD Loomba has shown that in the people ofUttar Pradesh, epiphyseal union occurs at a slightly later period than in other states of India. However, it is earlier than in English subjects, but slightly later than that occurring in America, Australia, Egypt and Burma. DR Kothari, working in the Marwar region of Rajasthan, also reported that the fusion occurs earlier in girls than in boys, although his actual figures vary a little from other states.
In ascertaining the age of young persons, radiograms of several main joints of the upper or the lower extremity of one or both sides of the body should be taken, and an opinion should be given according to the following table. However, it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province, owing to the eccentricities of development. According to Dr HS Mehta, ‘from puberty to the consolidation of skeleton (about 18 years in girls and about 20-21 years in boys), a fairly close estimate within a margin of two years may years may be made, mainly on the progress of the epiphyseal union (ossification test)’. This agrees with Flecker’s observation. The method of estimating age is to calculate th approximate age after considering the (a) physical characteristics, (b) secondary sex characteristics, and (c) ossification tests and after allowing a margin of error of six months on either side. Thus, if the sum total of all these rests seems to indicate that the age is between fifteen and sixteen, a margin of error of six months on either side would make, according to the recommended method, an estimated age of between age of between 14 1/2 to 16 1/2 years.
When requested to give an opinion about age of medico-legal cases, the medical officer should mention the date, time and place of examination, and marks of identification as well in the medical certificate, besides details (a), (b) and (c) years.
J.S. Saxena and SK Vyas X-rayed 50 boys and 25 girls of Rewa Medical College at Madhya Pradesh, in the age group of 16-21 years, and found the epiphyseal union at the wrist of females at the age of 17-18 and in males at19-20 years; at the knee in females at 16-17 years and in males at 20-21 years.
The four middle pieces of sternum, which constitute its body, fuse with one another from below upwards, between 14 and 25 years of age. The xiphoid unites with the body at about the 40th years of age, while manubrium rarely unites with the body, except in old age.
SS Yadav and PR Suri, in a study based on 200 skulls of Uttar Pradesh, reported that commencement of union at the junction of basisphenoid and basiocciput, occurs at the age of 18 in males and 17-18 years in females, complete obliteration of cartilaginous disc occurs at the age of 23 in males and 22-23 years in females.”
32. On the point of age determination of the victim/concerned person, following case law is relevant:-
A fives Judges constitutional Bench of Hon’ble Supreme Court in the case of Brij Mohan Singh Vs. Priay Brat Narain Sinha and others reported in (1965) 3 SCR 861 has held in paragraph nos. 20 as under:-
“20. An objection was faintly raised by Mr. Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant’s date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school. The request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant’s case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant’s explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellant’s age on the entries in these three documents, viz., Ex. 2, Ex. 8 and Ex. 18.”
In the case of Ram Deo Chauhan alias Raj Nath Chauhan Vs. State of Assam reported in 2001 Cri. L.J. 2902 Hon’ble Supreme Court in paragraph nos. 22, 23 and 43 held as under:-
“22. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr. B.C. Roy are in consonance with the guidelines provided in the text-books on medical jurisprudence. (SIC) vide Modi’s Medical Jurisprudence and Jhala Raju’s Medical Jurisprudence). Ossification test is (SIC) for multiple joints, for which the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala Raju’s Medical Jurisprudence (6th Edn., page 198):
“If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side.”
23. Of course the doctors’ estimates of age is not a study substitute for proof as it is only his opinion. But such opinion of tan expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered. When the possibility of the petitioner having been a juvenile on the relevant date cannot be excluded from the conclusion by adopting such reasonable standards, the interdict contained in Section 22(1) of the Juvenile Act cannot be bypassed for awarding death penalty to the petitioner so long as the death penalty is permitted to survive Article 21 only if the lesser alternative can be foreclosed unquestionably. In other words, if the age of the petitioner cannot be held to be unquestionably above 16 on the relevant date its corollary is that the lesser sentence also cannot unquestionably be foreclosed. We have to abide by the declaration of law made by the majority of Judges of the Constitution Bench in Bachan Singh’s case (supra).
43. Relying upon a judgment of this Court in Jaya Mala V. Home Secretary, Government of Jammu Kashmir Ors. MANU/SC/0031/1982MANU/SC/0031/1982 : 1982CriLJ1777, the learned defence counsel submitted that the court can take notice that the marginal error in age ascertained by radiological examination is two years at either side. The aforesaid case is of no help to the accused inasmuch as in that case the court was dealing with the age of a detenu taken in preventive custody and was not determining the extent of sentence to be awarded upon conviction of an offence. Otherwise also even if the observation made in the aforesaid judgment are taken note of, it does not help the accused in any case. The doctor has opined the age of the accused to be admittedly more than 20 years and less than 25 years. The statement of the doctor is no more than an opinion. the court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon text books, on medical jurisprudence and texicology while determining the age of an accused. In this vast country with varied latitude, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform.”
In the case of State of Uttar Pradesh Vs. Chhotey Lal reported in (2011) 2 SCC 550 Hon’ble Supreme Court in paragraph nos. 12,13 and 14 has held as under:-
“12. The trial court on consideration of the entire evidence recorded a categorical finding that the prosecutrix was about 17 1/2 years of age at the time of occurrence. This is what the trial court said:
“According to the complainant Rampal, PW-2 was aged 13 years at the time of the occurrence, but during the cross-examination, the complainant has stated in para 7 of her cross examination that he was aged about 24 years and PW-2 was younger to him by 8-9 years. Thus, the age of the prosecutrix, according to the statement of the complainant appearing in para 7 of his cross examination, comes to about 15 or 16 years. PW- 2, the prosecutrix, gave her age as 13 years at the time of the occurrence. According to the supplementary report, Ext. Ka. 12 on record, prepared by Lady Dr. Shakuntala Reddy, P.W. 5, PW-2 was aged about 17 years. During the cross- examination, Lady Dr. Shakuntala Reddy, P.W. 5, has stated in para 9 of cross-examination that there could be a difference of 6 months both ways in the age of PW-2. Thus PW-2 can be said to be aged 17 1/2 years at the time of the occurrence.”
13. We find ourselves in agreement with the view of the trial court regarding the age of the prosecutrix. The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by PW-5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. We are supported by a 3-Judge Bench decision of this Court in State of Karnataka v. Bantara Sudhakara @ Sudha and Anr. MANU/ SC /7843 /2008 MANU/ SC/ 7843/ 2008 : (2008) 11 SCC 38 wherein this Court at page 41 of the Report stated as under:
“12. … Additionally, merely because the doctor’s evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years’ age has to be added to the upper age-limit is without any foundation.”
14. Learned Counsel for the Respondent relied upon a decision of this Court in the case of Mussauddin Ahmed v. State of Assam MANU/SC/1126/2009MANU/SC/1126/2009 : (2009) 14 SCC 541 in support of his submission that the best evidence concerning the age of prosecutrix having been withheld, the finding of the High Court that the prosecutrix could be 19 years of age cannot be said to erroneous. In the present case, the brother of the prosecutrix has been examined as PW-1 and, therefore, it cannot be said that best evidence has been with held. The decision of this Court in Mussauddin Ahmed has no application at all. In our view, the High Court fell in grave error in observing that the prosecutrix could be even 19 years of age at the time of alleged occurrence.”
33. On the basis of above-mentioned exposition of law propounded by Hon’ble Supreme Court ossification test has been done of the victim of multiple joints then margin of six months’ only will be available.
34. In light of above opinion, I have perused evidence of PW-3 Dr. R.K. Srivastava, Radiologist and PW-4 Dr. Pramila Tiwari, who conducted medical examination of victim on 14.6.1993. PW-3 got conducted x-ray of elbow, wrist and knee joint of the victim. He has proved this fact that large bones of right elbow joint were fused at epiphyseal centre, whereas right radius and ulna bone and bones of right knee joint were not fused at their epiphyseal centre. Large bones were not joined.
35. PW-3 Dr. R.K. Srivastava has proved x-ray report (Ex. Ka-2) and x-ray plate material (Ex.-1). No material contradiction or important fact has been elicited during cross-examination, conducted on behalf of the appellant.
36. PW-4 Dr. Pramila Tiwari medically examined the victim on 14.6.1993. She has proved this fact that on external examination, breast of the victim was found developed. Pubic and axillary hairs were present. On internal examination, she found that there was no mark of injury on body of victim. On examination of her private part, hymen was found torn and healed. Her vagina admitted two fingers easily. She has proved medical examination report Ex. Ka-3 and prepared supplementary report dated 23.6.1993 on the basis of x-ray report prepared by PW-3 Dr. R.K. Srivastava, Radiologist.
37. She has mentioned in supplementary report that vaginal smear does not contain any spermatozoa. On the basis of x-ray report she opined that on the date of her medical examination, the victim was aged about 16 years and she was accustomed to sexual intercourse. Supplementary report Ex. Ka-4 has been proved by her. She has specifically stated that if sexual intercourse is committed with victim for 20-25 days, then she would come under category of being accustomed to sexual intercourse.
38. She has further stated that if after sexual intercourse, the victim passed urine after 24-36 hours, it may be possible that semen may be available and may not be, because it will depend upon the fact that whole semen entered in the vagina or not. No material contradiction or fact has been elicited during her cross examination, except that the victim was aged between 16-17 years. This opinion of PW-4 Dr. Pramila Tiwari is based on the fact mentioned in x-ray report that her two joints were not fused.
39. As opined by Modi A Textbook of Medical Jurisprudence and Toxicology 24th Edition Reprint 2012, in U.P. joints of girls are being fused one year before boys. Therefore, the victim cannot be major on the date of incident and she was found minor, according to Radiological opinion given by PW-3 and PW-4. Therefore, finding recorded by trial court that the victim was minor on the date of incident cannot be termed as perverse. It is recorded in correct perspective. Statement of PW-1 and PW-2 are corroborated by medical evidence and their evidence is reliable and inspiring confidence that the victim was minor, when she was kept by appellant and other co-accused persons at house of Raja Ram, where appellant committed rape with victim, when she was minor.
40. Learned A.G.A. has also argued that according to provision of Section 375 I.P.C. and Section 114-A of the Indian Evidence Act, consent if given by minor victim is to no avail for the appellant, because consent is given by minor victim it is immaterial in light of above provisions:-
41. Section 375 I.P.C. and Section 114-A of the Indian Evidence Act, read as under:-
“[375. Rape.–A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:–
(First) — Against her will.
(Secondly) –Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly –With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age.
Explanation.–Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) –Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
Section 114-A of the Indian Evidence Act-
[114A. Presumption as to absence of consent in certain prosecutions for rape.–In a prosecution for rape under clause
(a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.]
Case law of State of Punjab vs. Gurmit Singh others (supra) and the following case law is relevant for assessment of evidence of victim of offence of rape, which are as follows:-
Hon’ble Supreme court(3 Judges Bench) in the case of State of Rajasthan vs. Ram Narain and others AIR 1996 SC 2987 has observed as follows:-
6. Shri Sushil Kumar Jain, the learned Counsel for the respondents contended that looking at the evidence of the victim herself, the High Court was justified in reducing the sentence. She is a consenting party and without independent corroboration, her evidence would be suspect and could not be relied upon. The offence had taken place on April 14, 1983 and the report was lodged by the father of the victim on May 13, 1983, i.e., one month after the incident. It is unlikely that had she not been the consenting party, report would have been lodged immediately after abduction. PW 3 having allowed the daughter to remain in the company of the first accused for one month and parents having taking no action, the conduct would indicate against the prosecution and that the respondents had no intention to commit any offence and the victim (PW 1) is a consenting party. We fail to appreciate the stand of the victim which is proved from the evidence of the doctor [PW 5] that she is minor aged between 15 and 17 years. She is an innocent village girl. From her evidence, we find intrinsic truth, and her to be a truthful witness. No corroboration to her evidence is needed. The Court is required in each case to consider whether the evidence of the prosecution inspires confidence for acceptance. Each case has to be considered in its own setting, facts and circumstances. In fact, had PW 1 an intention to falsely implicate all the accused, nothing prevented her to state that the second and third accused also had intercourse with her. The learned Sessions Judge was greatly impressed by her frankness when she attributed the act of sexual inter course only to the first accused and none else. When she was induced to accompany them to a Circus along with women-folk she came to the outskirts of the village and when she found none, she was frightened at knife point at her throat and from the outskirts of the village the three accused took her to different places. It would be difficult for an innocent girl to resist three persons who took her from place to place and she could not have attempted to escape from their clutches nor could she give any report to anybody. Naturally, under the circumstances she had reconciled herself and given up to her fate and remained in their wrongful custody for more than one month. Her evidence clearly indicates that she was wrongfully confined at different places. Even after she was brought to the native place she was also wrongfully confined in the house of first accused. Thus the evidence brings home the guilt of offences Under Sections 364, 361 and also wrongful confinement Under Section 342. As regards offence Under Section 376, her evidence is sufficient. That apart, we also get corroboration from the medical evidence and the circumstantial evidence, viz., the underwear of the first accused and peticot of the victim establish the sexual intercourse the first accused had with the victim. The victim being a minor, the question of her consent does not arise and, therefore, the contention of Shri Sushil Kumar Jain that she was a consenting party is absolutely unbelievable and untenable. Obviously, under the circumstances, she had reconciled herself and to her fate and the first accused had sexual intercourse and the offence Under Section 376, IPC as against him is proved.
7. The question is : whether the High Court is right in reducing the sentence to the period already undergone, i.e., one and a half month ? We think that the High Court has committed grave error of law in reducing the sentence. Therefore, the judgment of the High Court is set aside. The conviction of the first accused is upheld and he is sentenced to undergo rigorous imprisonment for 5 years Under Section 376. Equally, all the three accused are convicted Under Section 366 to undergo sentence of five years Under Section 366 and one year Under Section 342, IPC. In addition the first accused is directed to pay a fine of Rs. 2,000 and if the same is paid, it is directed to be paid to the minor victim. In default, he should undergo rigorous imprisonment for 3 months. The second and third respondent-accused are directed to pay a fine of Rs. 1,000 each in addition to the conviction Under Section 366. In default, they should undergo rigorous imprisonment for one month. All sentences would run concurrently. The fine, if paid, is directed to be paid to the victim.
Hon’ble Supreme court (Division Bench) in the case of Ranjit Hazarika vs. State of Assam (1998) 8SCC 635has observed as follows:-
2. According to the prosecution case, the prosecutrix, a young girl of 14 years of age (according to the medical evidence, the age was clinically found to be between 13-17 years) was subjected to rape by the appellant on 18-5-1987. The prosecutrix was witnessing a performance along with her girl friends at Dhanaising Chapori which finished at about 3.30 a.m. As she was leaving for her home, the appellant offered to walk with her to her house but on the way, subjected her to sexual intercourse without her consent and threatened her not to inform anybody about the occurrence. The prosecutrix, after having been subjected to rape, rushed to her house and informed her parents about the occurrence. The FIR was lodged at Teok Police Station. The investigation was taken in hand. The prosecutrix was sent up for medical examination and after completion of investigation, the appellant was tried for the offence under Section 376 IPC.
5. The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private pans. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on “no reasons”.
6. The evidence of the prosecutrix in this case inspires confidence. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant. We are unable to agree with the learned counsel for the appellant that in the absence of corroboration of the statement of the prosecutrix by the medical opinion, the conviction of the appellant is bad. The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated. In it Singh, 1996CriLJ1728 to which one of us (Anand, J.) was a party, while dealing with this aspect observed:
“The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
We are in agreement with the aforesaid view.
Hon’ble Supreme court (Division Bench) in the case of State of Himachal Pradesh vs. Gian Chand AIR 2001 SC 2075 hs observed as follows:-
12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.
In the present case, PW-1 – the mother of the prosecutrix is a widow. The accused is a close relation of brother of husband of PW1. PW1 obviously needed her family members consisting of her in-laws to accompany her or at least help her in lodging the first information report at the police station. The incident having occurred in a village, the approach of the in-laws of PW1 displayed rusticity in first calling upon the father of the accused and complaining to him of what his son had done. It remained an unpleasant family affair on the next day of the incident which was tried to be settled, if it could be, within the walls of family. That failed. It is thereafter only that the complainant, the widow woman, left all by herself and having no male family members willing to accompany her, proceeded alone to police station. She has lent moral support by Ruldu Ram, the village Panch, whereupon the report of the incident was lodged. The sequence of events soon following the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explanation for the delay. It was found to be so by the learned Sessions Judge. The High Court has not looked into the explanation offered and very superficially recorded a finding of the delay having remained “unexplained” and hence fatal to the prosecution case. It is common knowledge and also judicially noted fact that incidents like rape, more so when the perpetrator of the crime happens to be a member of the family or related therewith, involve the house of the family and therefore, there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the court. A cool thought may precede lodging of the FIR. Such are the observations found to have been made by this Court in State of Punjab v. Gurmit Singh and others, MANU/SC/0366/1996MANU/SC/0366/1996 : 1996CriLJ1728 and also in the case of Harpal Singh MANU/SC/0130/1980MANU/SC/0130/1980 : 1981CriLJ1 . We are satisfied that the delay in making the FIR has been satisfactory explained and, therefore, does not cause any dent in the prosecution case.
Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the Court leveled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. The court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence which though available has been withheld from the Court then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well-settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on. “If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with case involving sexual molestations.” – is the law declared in State of Punjab v. Gurmit Singh and others (1996) 2 SCC 384 State of Rajasthan v. N.K. (2000 5 SCC 30 , State of Himachal Pradesh v. Lekh Raj and another (2000) 1 SCC 247 and, Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204].
15. The observations made and noted by Dr. Mudita Gupta during medico legal examination of PW7 clearly make out the prosecutrix having been subjected to rape. The prosecutrix has spoken of “penetration” in her statement. The discovery of spermatozoa in the private part of the victim is not a must to establish penetration. There are several factors which may negative the presence of spermatozoa. [See – Narayamma v. State of Karnataka (1994) 5 SCC 728. Slightest penetration of penis into vagina without rupturing the hymen would constitute rape. [See – Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204]
Hon’ble Supreme court(3 Judges Bench) in the case of State of Himachal Pradesh vs. Mango Ram AIR 2000 SC 2798 has observed as follows:-
12. …..Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.
From the evidence on record, it cannot be said that the prosecutrix had given consent and thereafter she turned round and acted against the interest of the accused. There is a clear credible evidence that she resisted the onslaught and made all possible efforts to prevent the accused from committing rape on her. Therefore, the finding entered by the learned Sessions Judge that there was consent on the part of the prosecutrix is without any basis.
Hon’ble Supreme court(Division Bench) in the case of Koppula Venkat Rao vs. State of Andhra Pradesh AIR 2004 SC 1874 has observed as follows:-
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view.
13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and 1/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence.
Hon’ble Supreme court(3 judges Bench) in the case of State of Andhra Pradesh vs. Polamala Raju @ Rajarao AIR 2000 SC 2854 has observed as follows:-
8. The age of the prosecutrix in the instant case was admittedly five years at the relevant time. Normal sentence under Section 376(2) IPC in a case where rape is committed on a child below 12 years of age, is ‘not less than 10 years R.I. ‘an expression which is pre-emptory in nature. The Courts are obliged to respect this legislative mandate when the case falls under the proviso. The proviso to Section 376(2) IPC, however lays down that in exceptional cases, “for special and adequate reasons”, sentence of less than 10 years R.I. may also be awarded in a given case. The proviso, in our opinion, would come into play only when there are “adequate and special reasons” available in a case. Those reasons need to be disclosed in the order/ judgment itself so that the appellate forum is in a position to know as to what weighed with the court in awarding a sentence less than the minimum prescribed under the Act.
9. We are of the considered opinion that it is an obligation of the sentencing court to consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the gravity of the offence. The sentencing Court must hear the loud cry for justice by the society and more particularly, in cases of heinous crime of rape of innocent help less children, as in this case, of the victim of crime and respond by imposing a proper sentence.
13. In the instant case, we have perused the record. We have noticed the “reasons” for reduction of sentence. We are unhappy with the manner in which the sentence has been reduced from the statutory minimum of 10 years R.I. to 5 years R.I.
Hon’ble Supreme court(Division Bench) in the case of Aman Kumar and Anr. vs. State of Haryana AIR 2004 SC 1497 has observed as follows:-
7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines IC K 893) . It is well-known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse…..”
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC….”
14. Modesty can be described as the quality of being modest; and in relation to woman, “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions…..”
Hon’ble Supreme court (3 judges Bench) in the case of Malkhansingh and Ors. vs. State of Madhya Pradesh AIR 2003 SC 2669 has observed as follows :-
5. The trial Court as well as the High Court have carefully considered the evidence on record and have come to the conclusion that the delay, if any, in lodging the first information report was fully explained by the prosecutrix and was strongly supported by the circumstantial evidence on record. The courts below have noticed the fact that the prosecutrix was living all alone and was an unmarried person, about 28 years of age. She did not have any family member to whom she could have narrated her story immediately after the occurrence. Moreover the sense of shame coupled with the fear on account of threats given out by the appellants must have deterred her from immediately reporting about the occurrence to others. Even so, according to her, she narrated the incident to Shri Dutta, Deputy Director of Education on March 6, 1992. Later she narrated the incident to one of her colleagues whom she found to be sympathetic towards her and thereafter when her cause was taken up by the teachers association, she could muster courage to lodge a report with the Superintendent of Police. The courts below have, therefore, rightly held that in the facts and circumstances of the case, the mere delay in lodging of the first information report does not discredit the prosecution case. The courts below have also examined the medical evidence on record and have observed that the medical evidence, to some extent, supported the case of the prosecution that the prosecutrix may have been subjected to forcible sexual intercourse within a week or two of her medical examination. The medical evidence also indicted that the prosecutrix was not habituated to sexual intercourse. We find no reason to dis-agree with the findings recorded by the courts below on these aspects of the matter.
11. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
17. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their cases as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must be got imprinted in her memory, and there was no chance of her making a mistake about their identify. The occurrence took place on March 4, 1992 and she deposed in Court on August 217, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record.
Hon’ble Supreme court(Division Bench) in the case of State of Punjab vs. Ramdev Singh AIR 2004 SC 1290 has observed as follows:-
1. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty MANU/ SC/ 0245/ 1996 MANU/ SC/ 0245/ 1996 : AIR1996SC922 , the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’) The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and several. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.
9. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as done by the High Court in the present case.
10. The evidence of PWs-4 and 5 read with that of the victim clearly explained as to why the first information report was lodged after 17-18 days. The evidence of the aforesaid three witnesses clearly show that PW-5 was seriously ill and the family members did not want to create tension in his mind when he was not physically well and waited for his recovery. In spite of the lengthy cross-examination this aspect has not been shaken by the defence. The view of the High Court that PW-4 should have told some respectable person or the father earlier to say least is a view which has no foundation and overlooks the very reason to shun or openly publicise it to avoid the ignominy involved in it. In a tradition bound and conservative society, more particularly in a rural area, the shame of sexual assault on a girl of about 14 years cannot be lost sight of. This down to earth reality has been lost sight of by the High Court. The trial Court had rightly emphasized this aspect, but unfortunately, the High Court took a contrary view irrationally.
11. Further, the victim’s evidence has been discarded by holding that it is at variance with the medical evidence. The High Court has not indicated as to in what way it is at variance with the medical evidence. Mere statement that according to doctor, victim’s vagina admitted two fingers and she could on earlier occasions have had sexual intercourse five, ten or fifteen times rules out rape by accused once as alleged in no way casts doubt on victim’s evidence.
12. Learned counsel for the respondent-accused pointed out that rape as claimed by the victim was discounted by the evidence of PW-2, who did not find visible injury when she medically examined the victim. In our opinion the same is of no consequence. The doctor examined the victim after about 3 weeks. That being so, the effect of the act on the physical form was practically obliterated. That is not denied by the doctor. Merely because the friend of the victim was not examined that also cannot be a suspicious circumstance to throw suspicion on the victim’s evidence.
13. Another factor which seems to have weighed with the High Court is the evidence of doctor PW-4 that there were signs of previous sexual intercourse on the victim. That cannot, by stretch of imagination, as noted above, be a ground to acquit an alleged rapist. Even assuming that the victim was previously accustomed sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give license to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behavior earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Finally, if we may say as a last straw, is the fallacy in High Court’s reasoning about lack of evidence relating to the employment of the victim as a maid servant. The High Court completely overlooked the fact that the suggestions given to witnesses, more particularly PWs-4, 5 and 7 that the accused or his wife had threatened to put an end to the victim’s service as a maid servant because of her immoral character, or refusal to refund the amount taken as advance for her employment as a maid servant.
14. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do.
15. As was noted by this Court in State of Rajasthan v. Noore Khan 2000 (3) Supreme 70
“Absence of injuries on the person of the prosecutrix has weighed with the High Court for inferring consent on the part of the prosecutrix. We are not at all convinced. We have already noticed that the delay in medical examination of the prosecutrix was occasioned by the factum of the lodging of the FIR having been delayed for the reasons which we have already discussed. The prosecutrix was in her teens. The perpetrator of the crime was an able-bodied youth bustling with energy and determined to fulfil his lust armed with a knife in his hand and having succeeded in forcefully removing the victim to a secluded place where there was none around to help the prosecutrix in her defence. The injuries which the prosecutrix suffered or might have suffered in defending herself and offering resistance to the accused were abrasions or bruises which would heal up in the ordinary course of nature within 2 to 3 days of the incident. The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case.”
16. The High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefits thereof where none reasonably exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females or minor children. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children.
Hon’ble Supreme court(Division Bench) in the case of Koppula Venkat Rao vs. State of Andhra Pradesh AIR 2004 SC 1874 has observed as follows:-
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view.
13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and 1/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence.
Hon’ble Supreme court (Division Bench) in the case of Viswanathan and Ors. vs. State rep. by Inspector of Police, Tamil Nadu AIR 2008 SC 2222 has observed as follows:-
……. She was sent to the hospital for medical examination. Indisputably, the prosecutrix did not suffer any injury. For the purpose of proving commission of the offence of rape, however, the same was not necessary as she was a grown up girl aged between 20 to 23 years as opined by Dr. Gopikrishnan. She was furthermore mother of two children.
Hon’ble Supreme Court in the case of Mukesh and ors (supra) Hon’ble R. Bhanumati, J has delivered concurrent judgment and held regarding presence of injuries on the private part of the victim and appreciation of her solitary evidence as under:-
15. At the same time while dealing with cases of rape, the Court must act with utmost sensitivity and appreciate the evidence of prosecutrix in lieu of settled legal principles. Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. It is now well-settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination etc., if the same is found natural and trustworthy.
16. Persisting notion that the testimony of victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood. Ours is a conservative society and not a permissive society. Ordinarily a woman, more so, a young woman will not stake her reputation by levelling a false charge, concerning her chastity. In State of Karnataka v. Krishnappa, (2000) 4 SCC 75, it was held as under:-
“15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity — it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. ……
16. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. [emphasis supplied]”
17. There is no legal compulsion to look for corroboration of the prosecutrix’s testimony unless the evidence of the victim suffers from serious infirmities, thereby seeking corroboration. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, it was held as under:- “9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. ………
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) …………
11. …….. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. ……. [emphasis supplied]” It was further held in Bharwada Bhoginbhai Hirjibhai (supra) that if the evidence of the victim does not suffer from any basic infirmity and the “probabilities-factor” does not render it unworthy of credence, there is no reason to insist on corroboration except corroboration by the medical evidence. The same view was taken in Krishan Lal v. State of Haryana (1980) 3 SCC 159.
18. It is well-settled that conviction can be based on the sole testimony of the prosecutrix if it is implicitly reliable and there is a ring of truth in it. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not requirement of law but a guidance of prudence under given circumstances. In Rajinder alias Raju v. State of Himachal Pradesh, (2009) 16 SCC 69, it was held as under:- “19. In the context of Indian culture, a woman–victim of sexual aggression–would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.”
47. If considered on the anvil of settled legal principles, injuries on the person of a rape victim is not even a sine qua non for proving the charge of rape, as held in Joseph v. State of Kerala (2000) 5 SCC 197. The same principle was reiterated in State of Maharashtra v. Suresh (2000) 1 SCC 471. As rightly held in State of Rajasthan v. N.K., The Accused (2000) 5 SCC 30, absence of injury on the person of the victim is not necessarily an evidence of falsity of the allegations of rape or evidence of consent on the part of the prosecutrix. In the present case, the extensive injuries found on the vagina/private parts of the body of the victim and injuries caused to the internal organs and all over the body, clearly show that the victim was ravished.
42. On the basis of above discussion and appreciation of evidence of PW-1, PW-2, PW-3 and PW-4 and exposition of law propounded by Hon’ble Supreme Court, contention putforth by learned counsel for appellant that the victim was consenting party is to no avail for the appellant. The trial court has recorded finding that she was not the consenting party. She was retained at house of co-accused Raja Ram forcibly and without consent of her guardian PW-1 complainant, where appellant Ram Pal committed rape with her.
43. As far as learned counsel for appellant has argued that the victim did not attempt to escape from house of co-accused Raja Ram or apprised the villagers, it is relevant to mention here that co-accused Raja Ram (since dead) and co-accused Suresh were relative of PW-1 complainant Mahesh and appellant Ram Pal, is nephew of co-accused Ram Pal, who was residing at house of Raja Ram on the date of incident.
44. PW-2 victim has stated that she used to go to meet call of nature in the agricultural field adjoining to the house of co-accused Raja Ram and she did not meet any villager in this agricultural field. She has also disclosed this fact that Ram Pal was permanently residing at house of co-accused Raja Ram and Suresh, where he committed rape with her for 20-25 days against her will in absence of her elder sister Rekha and two sister of co-accused Suresh. She has specifically stated that when appellant committed rape with her, on each time her elder sister Rekha and sisters of co-accused Suresh were not present in the house and appellant kept her forcibly as his wife. These facts have been narrated by PW-2 victim in her examination-in- chief and in her cross-examination conducted on behalf of appellant.
45. No material contradiction or material fact has been elicited during her cross-examination. Her evidence inspires confidence reliable and trustworthy. She was in custody of co-accused Raja Ram and Suresh and appellant Ram Pal was residing at this house permanently, where she was kept 20-25 days. During this period, appellant Ram Pal had opportunity to commit rape with her. The appellant was in advantageous position on the date of incident. The victim being minor was in forceful custody of the appellant and other co-accused persons, where heinous offence of rape was committed with minor victim by the appellant. This fact was denied by victim that she ever consented to sexual intercourse committed by appellant Ram Pal.
46. PW-4 Dr. Pramila Tiwari has stated in her examination-in- chief that if victim has been subjected to sexual intercourse for 20-25 days it shall come in the category of fact that she was accustomed to sexual intercourse and presence of spermatozoa shall depend upon the fact as to how much semen entered into the vagina of victim.
47. Learned counsel for appellant relying on decision of Hem Raj S/o Moti Ram Vs. State of Haryana reported in (2014) 2 SCC 395 has argued that if evidence of victim found infirm and not credible and evidence of witness produced on behalf of prosecution, was also far from satisfactory and incapable of any corroboration to the prosecutrix evidence then conviction cannot sustain. In this case it was found that neighbour of the prosecutrix entered into the house of victim by jumping from wall and committed rape. When prosecutrix raised alarm, her elder brother PW-1 came there whereupon the appellant ran away. It was also found that concerned doctor was not examined, who medically examined the prosecutrix. It is relevant to mention here that Hon’ble Supreme Court in paragraph no. 6 and 10 has held as under:-
“6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. [See: State of Maharashtra v. Chandraprakash Kewalchand Jain (1990)1 SCC 550]. Such weight is given to the prosecutrix’s evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix’s evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it.
10. Faced with such a situation, we were anxious to find out whether there can be any clinching medical evidence suggesting rape, but, unfortunately, the prosecution has failed to examine Dr. Anjali Shah, who had examined the prosecutrix. The MLR was produced in the court by PW-6 J.B. Bhardwaj, Medical Record Technician. This is a serious lapse on the part of the prosecution. We are aware that lapses on the part of the prosecution should not lead to unmerited acquittals. This is, however, subject to the rider that in such a situation the evidence on record must be clinching so that the lapses of the prosecution could be condoned. Such is not the case here. The MLR does suggest that the hymen of the prosecutrix was torn. It is also true that the prosecution has brought on record FSL Report which shows that human semen was detected on the salwar of the prosecutrix and on the underwear of the accused. However, it is difficult to infer from this that the prosecutrix was raped by the Appellant. The prosecutrix herself has vacillated on this aspect. It was pointed out that no injuries were found on the prosecutrix. We do not attach much importance to this aspect because presence of injuries is not a must to prove commission of rape. But the prosecutrix’s evidence is so infirm that it deserves to be rejected. Her brother has come out with a case that the Appellant tried to rape the prosecutrix. He did not say that the Appellant raped the prosecutrix. Taking overall view of the matter, we find it difficult to sustain the prosecution case that the prosecutrix was raped by the Appellant. This is a case where the Appellant must be given benefit of doubt.”
48. The evidence of prosecutrix has to be appreciated and evaluated with caution. Therefore, evidence of PW-1 and PW-2 shall be evaluated accordingly.
49. Learned counsel for appellant has also relied upon decision of State of Rajasthan Vs. Babu Meena reported in 2013 Cri L J 1634 and argued that in this case evidence of prosecutrix was contradictory as to the time of offence. The plea that she shouted was not supported by landlord of the place of occurrence. Medical and Forensic Science Laboratory report also did not support the allegation of rape therefore, acquittal of co-accused was found proper. It is pertinent to mention here that in paragraph no. 8, it has been observed as under:-
“8. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.”
50. Therefore, the evidence of PW-1 and PW-2 shall be evaluated accordinly.
51. Learned counsel for appellant has also relied upon a decision of Hon’ble Supreme Court in the case of Musauddin Ahmed Vs. State of Assam reported in AIR 2010 SC 3813 and argued that in this case prosecutrix met the accused at zoo. They roamed together in city in rickshaw and buses. At night appellant took her to hotel, booked room. Prosecutrix went to room without protest. Both remained there throughout night and next day left Hotel. Appellant took prosecutrix in rickshaw, left her near Musafirkhana and went away. Prosecutrix did not inform to police even enought time and opportunity was available for her. She was aged 18 years. No injury was found on her body or private part and she was accustomed to sexual intercourse. Therefore the appellant was acquitted by Supreme Court. He further argued that likewise in this case also no injury was found on her body or private part of victim of the present case and she stayed at house of co-accused Raja Ram for 20-25 days and did not attempt to escape or inform the villagers about her ordeal. Therefore, appellant is entitled for acquittal.
52. Learned counsel for appellant has also relied upon decision of State of M.P. Vs. Balu reported in 2005 Cri L J 335, Hon’ble Supreme Court in paragraph nos. 14 and 15 has observed as under:-
“14. From the impugned judgment of the High Court it is noticed that the learned counsel representing the respondent had not challenged conviction of the respondent before the High Court and had addressed arguments only in regard to quantum of sentence. Be that as it may, and without expressing any opinion on the applicability of Section 377(3) of the Code of Criminal Procedure to proceedings under Article 136 of the Constitution but with a view to satisfy ourselves as to the correctness of the conviction recorded by the Trial Court against the respondent, we have perused the records in the light of the arguments addressed by the learned counsel for the respondent. From the evidence produced by the prosecution, it is clear that the incident in question occurred on 15th of June, 1988 and a complaint in this regard was lodged promptly with the Police Station, Civil Lines, Chhatarpur on the very same day and the victim PW2 was sent for medical examination on the same day. PW 6- the Doctor who examined the victim opined that victim was subjected to sexual intercourse within a period of 24 hours before her examination. The said Doctor has also recorded reasons for such conclusion. PW 1- Dr. K.L. Wadi who examined the victim with reference to her age after perusing her X-rays opined that the victim PW 2 appeared to be 13 years of age but he in the cross examination did say that his opinion might vary upto 3 years. Taking advantage of this possible variation an argument was addressed on behalf of the respondent that the victim was above 13 years of age. The Trial Court, in our opinion, rightly rejected this contention of the respondent herein. The prosecution during the course of investigation had seized the clothes worn by the victim as well as the underwear worn by the respondent which also on examination by the Serologist was found to contain blood which also supported the prosecution case that the respondent had sexual intercourse with the victim. PW 2 who knew the respondent prior to the incident had no difficulty in identifying the respondent as the person who committed rape on her, also stated that the respondent had covered her mouth with a towel to prevent her from shouting for help. Having perused the evidence like the trial court, we also find no reasons to disbelieve her evidence. Hence, the so called consent alternatively pleaded by the counsel for the respondent cannot be accepted. The argument of non-consideration of the statement of the accused recorded under Section 313 Cr.P.C. to the effect that there was animosity between the family of the victim and the accused is liable to be rejected because one of the defences of the accused is that there was consent on the part of the victim to have sex with him. These two stands being self-contradictory, cannot be accepted.
15. Thus, having considered the material on record and having heard the arguments addressed on behalf of the parties, we find no merit in the argument of the learned counsel for the respondent that the Trial Court erroneously convicted the respondent.
53. As far as it is argued by learned counsel for appellant that the victim did not attempt to escape from house of co-accused persons nor inform to villagers about her ordeal, it is relevant to mention here that elder sister Smt. Rekha was married to co-accused Suresh and co-accused Raja Ram brought her from custody of her father on pretext of illness of Smt. Rekha and construction of his house. PW-1 complainant Mahesh has proved this fact that he tried to bring back her daughter (victim) from house of co-accused person, but they refused to send back her then he lodged F.I.R. against the accused persons. There was no occasion for villagers to suspect about the conduct of co-accused of accused persons, because the appellant was permanently residing at the house of co-accused Raja Ram and Suresh, where the victim was kept in house of Raja Ram.
54. PW-2 victim has also proved that her elder sister Rekha and two sisters of co-accused Suresh supported the appellant. Therefore, at unknown place the minor victim did not know the villagers and distance and way of house of her father was not known to her, because she never visited the village, where house of co-accused Raja Ram and Suresh was located. Therefore, it may be possible that due to fear and under duress the victim could not escape from house of Raja Ram. Likewise she could not inform her ordeal to the villagers. There is no substance in the argument of learned counsel for appellant, because the villagers might have considered that the victim was residing with her elder sister in the house, therefore, conduct of co-accused persons and appellant might have not been come within the knowledge of villagers. The victim was minor on the date of incident. The appellant committed rape with her at house of Raja Ram where her elder sister Smt. Rekha wife of co-accused Suresh was also residing. This village was unknown to him where she never visited prior to the date of incident. She might have unable to muster courage to escape from the house of Raja Ram and waited up to her release after lodging of the F.I.R. of this crime. The same reason may be for the fact that she could not apprise the villagers regarding her ordeal.
55. Hon’ble the Apex Court in the following case laws has held regarding interested witnesses and non-production of independent witnesses as under:-
Hon’ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005)9SCC725
…..With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.
In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.
Hon’ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-
8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are “interested witnesses”. The only premise for dubbing them as “interested witnesses” is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 , Guli Chand v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 and Dalbir Kaur v. State of Punjab MANU/SC/0144/1976 : 1977CriLJ273 ].
15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor’s duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.
Hon’ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-
The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.
In Surendra Narain alias Munna Pandey vs. State of U.P. reported in AIR 1998 SC 192 Hon’ble Apex Court has held as under:
…Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his “Sala” and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, “there is not a scintilla of evidence” that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother’s son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.
The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.
In the case of Banti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261 Hon’ble Apex Court has held as under:-
“…Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.
56. As far as it is argued that no injury was found on the body and private part of victim, on the basis of exposition of law propounded by Hon’ble Supreme Court, which has also been relied upon by learned counsel for appellant, presence of injury on private part of victim is not a must to prove commission of crime of rape. Likewise, spermatozoa if were not found in vaginal smear/swab by the pathologist is also not required to prove offence of rape as held by Hon’ble Supreme Court in case law mentioned by me.
57. The appellant has also contended that the victim was consenting party, because she never raised alarm, while the appellant committed rape with her. It is relevant to mention here that in his statement recorded under Section 313 Cr.P.C., the appellant has not stated that prosecutrix/victim was consenting party. Whereas he has stated that co-accused Suresh had given his land to PW-2 complainant Mahesh on Batai/Theka and agricultural produce of this land was not given by complainant to Suresh. There was an altercation and Suresh did not give his agricultural land further for cultivation to the complainant. The appellant supported co-accused Suresh, therefore, he was falsely implicated in this crime.
58. PW-2 victim in her cross examination, has disclosed this fact that now she is married and her marriage was solemnized with her husband Kanhaiya aged 30-35 years and it was arranged marriage with her consent. If the victim was consenting party of this crime and wanted to live with the appellant, then her, marriage could not be solemnized with her present husband, because she would have certainly opposed this marriage and anyhow she would live with the appellant.
59. Likewise PW-1 complainant Mahesh attempted to bring back her daughter victim at his house and went at house of co-accused Raja Ram and Suresh twice. Ultimately accused persons refused to send back the victim with the complainant, then he lodged FIR against the appellant and co-accused persons. On the other hand, the victim was minor on the date of occurrence. No father will involve reputation of his minor daughter on the basis of dispute of taking land of accused persons on Batai/contract. On the other hand, accused persons kept the victim forcibly at their house and appellant committed rape with victim for 20-25 days.
60. The appellant has produced DW-1 Lal Mohammad in defence evidence, who has stated that complainant Mahesh resided for 4-5 years with Suresh 6-7 years ago. He has also stated that complainant cultivated land of Suresh and some produce of agricultural land was settled to be given to Suresh, which was denied by complainant. An altercation took place on the basis of this dispute and appellant supported co-accused Suresh. He has accepted that complainant Mahesh went at house of his another daughter. DW-1 has accepted in his cross-examination that when he came to know that accused persons were falsely implicated in this crime. He had not made complaint to any authority or higher authority of Police. He has not assisted Investigating Officer during course of investigation regarding defence taken by accused persons.
61. PW-1 Mahesh has proved this fact that after incident of this case, he left and handed over land to co-accused Suresh. He lodged F.I.R. against the appellant and co-accused persons, because they retained her daughter at their house without his consent and on pretext of illness of his elder daughter Smt. Rekha. In the meanwhile, during this period, the appellant committed rape with his daughter PW-2. PW-1 has also proved this fact that in his village there was animosity with his villagers. Therefore, he shifted in the village of co-accused Raja Ram and Suresh and look after land of these accused persons.
62. The trial court has recorded finding that plea taken by the appellant that he was falsely implicated, because he supported the co-accused Suresh in the dispute of agricultural land cultivated by complainant, was not reliable. The evidence of DW-1 was discarded by trial court on this point. Although the trial court has acquitted co-accused Suresh by recording finding that there was no evidence available against co-accused Suresh regarding kidnapping of victim and commission of rape with the victim. The allegation of rape was made by PW-2 against appellant Ram Pal only.
63. The appellant Ram Pal was convicted and co-accused Suresh was acquitted by the trial court. The finding recorded by trial court cannot be termed as perverse or against law or against evidence available on record.
64. Learned counsel for appellant has further submitted that F.I.R. of this case was registered at Police Station Biswan, District Sitapur for offences punishable under Sections 342, 363 and 506 I.P.C. It is contended that there was no allegation against appellant Ram Pal that he committed rape with the victim. It is pointed out that the trial court framed charges against appellant Ram Pal for offences punishable under Sections 363, 342, 366, 376 and 506 I.P.C. whereas he has been convicted only for offence punishable under Section 376 I.P.C. and he has been acquitted for offence punishable under Section 506 I.P.C.
65. It is relevant to mention here that after appreciation and evaluation of evidence, the trial court has recorded specific finding that accused Raja Ram (since dead) brought the victim from the house of PW-1 complainant.
66. According to PW-1 complainant, PW-2 victim has stated that accused Raja Ram and Suresh refused to send her with her father, when he visited twice. Her father talked with Raja Ram for sending the victim with him, therefore, no evidence was available against appellant Ram Pal regarding offence punishable under Sections 363, 366 and 342 I.P.C.
67. PW-2 victim has also proved this fact that only Ram Pal committed rape with her. It is pertinent to mention here that accused Ram Pal, who is nephew of accused Raja Ram (since dead) was permanently residing at his house and took benefit of this opportunity to commit rape with the appellant in house of Raja Ram. No specific evidence was adduced on behalf of the prosecution regarding offence punishable under Section 506 I.P.C. against the appellant, therefore, he would be deemed to be acquitted for offence punishable under Section 506 IPC. Therefore, there is no substance in the argument put forth by learned counsel for appellant in this regard.
68. The Hon’ble Supreme Court in case of Sucha Singh and Anr. Vs. State of Punjab reported at AIR 2003 SC 3617, observed as under :-
……To the same effect the decision in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : 1973CriLJ1589 and Lehna v. State of Haryana MANU/SC/0193/1973 : 1973CriLJ1589 . Stress was laid by the accused- appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of “falsus in uno falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liar. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that, it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’. (Nisar Alli v. The State of Uttar Pradesh MANU/SC/0032/1957 : 1957CriLJ550 ). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (Gurucharan Singh and Anr. v. State of Punjab 1956 CriLJ 827). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh MANU/SC/0254/1972 : 1972CriLJ1302 ) and Ugar Ahir and Ors. v. The State of Bihar MANU/SC/0333/1964 : AIR1965SC277 ). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto.
69. The trial court has alanysed and evaluated evidence adduced on behalf of the prosecution with care and caution regarding the appellant and co-accused Suresh separately. Evidence against Suresh was deficient, hence he was acquitted by the trial court. Conduct of both the accused persons could be assessed separately, on appreciation of evidence adduced by the prosecution. Therefore, there is no substance in the argument of learned counsel for appellant that on the basis of same evidence appellant has been convicted and co-accused Suresh has been acquitted by the trial court.
70. On the basis of above discussion, facts and circumstances of the case, the evidence of PW-1 and PW-2 is reliable and inspire confidence. There is no material contradiction in their evidence.
71. PW-5 Investigating Officer has proved site plan (Ex. Ka-5) and recovery memo (Ex. Ka-6). According to recovery memo dated 13.6.1993 appellant Ram Pal was arrested from house of Raja Ram and PW-2 victim was recovered from this house located at village Aamnabad. At this point of time, the appellant was alone with victim in this house.
72. Learned counsel for appellant has also relied upon the fact mentioned in this recovery memo (Ex. Ka-6) that the victim informed the Investigating Officer that she has performed court marriage with the appellant. PW-2 victim has proved this fact that her thumb impression was obtained by the accused persons on plain paper forcibly and she was kept as wife of Ram Pal, who committed rape with the victim against her will/consent. During her cross-examination, she has stated that she was brought by accused/appellant at Sitapur forcibly for preparing document. She has specifically stated that on the date of incident, she was aged 13-14 years.
73. PW-5 Investigating Officer during his cross-examination, has stated that PW-1 complainant Mahesh had not stated that appellant Ram Pal was keeping her daughter from two years ago. The statement recorded by PW-5 under Section 161 Cr.P.C. of the victim relied upon by learned counsel for appellant that her parents knew sexual relationship of their daughter with Ram Pal. This statement was not confronted to PW-2. Therefore, statement of PW-5 Investigating Officer in this regard during his cross-examination, is of no avail for the appellant.
74. It is pointed out that PW-5 Investigating Officer has specifically stated that the victim did not apprise him that accused Ram Pal was keeping her from two years ago. Therefore, there was no occasion for victim to state in this regard that her parents knew her sexual relationship with Ram Pal. PW-5 has also stated that the victim was recovered from room of house, where Ram Pal was present. Therefore, he tried to escape, but he was arrested. He has stated during his cross-examination that he recorded statement of complainant at police station and he recorded statement of victim at place of occurrence, where she was recovered from custody of appellant. He has also proved this fact that S.I. S.K. Gangwar submitted charge sheet against accused after his transfer and he conducted investigation of this case after 9.7.1993. He has also stated that S.I. S.K. Gangwar has expired. No defence evidence has been adduced by the appellant that PW-2 Victim was ever married with him and she was his legally wedded wife. The argument of learned counsel for appellant is not acceptable in this regard.
75. On the above mentioned circumstances, and evidence adduced on behalf of prosecution, there is not infirmity in the impugned judgment and order passed by the trial court. This appeal is liable to be dismissed and is hereby dismissed. The case law relied upon by learned counsel for appellant is of no help for appellant. He is on bail. He be taken into custody forthwith. His bail bonds cancelled and sureties discharged. Trial court is directed to take the appellant in custody and he be sent to jail to undergo sentence awarded against him.
76. Lower court record be sent back for compliance.
Order Date :- 07.11.2017
Virendra
