IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.376 of 2015
Arising Out of PS.Case No. -87 Year- 2013 Thana -M AUZAHIDPUR District- BHAGALPUR
SUMIT KUMAR @ SUMIT KUMAR MANDAL, SON OF SRI SITA RAM
SINGH, RESIDENT AT VILLAGE- BADI DHANKAR, P.S.- SABOUR,
DISTRICT- BHAGALPUR.
…. …. APPELLANT/S
VERSUS
THE STATE OF BIHAR …. …. RESPONDENT/S
Appearance:
For the Appellant/s : Mr. S.K. Lal, Adv.
Mr. Alok Kumar, Adv.
Mr. Birendra Kumar Singh, Adv.
For the State : Mr. Binod Bihari Singh, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 29-11-2017
1. Sole appellant Sumit Kumar @ Sumit Kumar Mandal
has been found guilty under Section 376 IPC and sentenced to
undergo R.I. for ten years as well as to pay fine appertaining to
rupees two lacs and in default thereof to undergo S.I. for two years
additionally by the Third Additional District Sessions Judge,
Bhagalpur in Sessions Trial No.530/2014 vide judgment of
conviction dated 22.05.2015 and order of sentence dated
23.05.2015.
2. On 23.06.2013 Md. Allauddin Ansari (PW.8) filed
written report disclosing therein that his minor daughter (Name
withheld) has been kidnapped on 17.06.2013 near Exchange
Office. It has also been disclosed that she was employed at S.A.P.
Company, having office at mohalla-Sikandarpur. She used to
return at her house after office hour. When she did not return on
17.06.2013 then thereafter, he gone in search of her, inquired
2.
from other employees of the company who have not answered
satisfactorily. It has further been disclosed that one Enamul
Sheikh who was regular visitor at the company office and who
provided training to the employees at Patna and for that purpose
accompanied the employees who were given training by Max Rupa
Health Insurance Company, Frazer Road, Patna. It has further
been disclosed that during course of search out, they have seen
one mobile no.9122017342 scribe in a copy belonging the victim
to whereupon he dialed and then, came to know that it belongs to
Usha Devi, wife of Late Vijendra Chaudhary, resident of mohalla-
Gariwan, Bari Nagla, P.S.-Malsalami, Patna, but her sons Rohit
Chaudhary and Ravi Chaudhary were using the same. It has also
been disclosed that conduct of Enamul Sheikh also not been
found above board as, he had snapped photo of his daughter and
was seen by many others. In the aforesaid background, the
informant had alleged that these three persons are responsible for
kidnapping of his daughter.
3. On the basis of the aforesaid written report
Mojahidpur P.S. Case No.87/2013 was registered under Section
366A of the IPC and during course thereof, the victim was
recovered, her statement under Section 164 was recorded and
during course thereof, she had put allegation solely against the
appellant who, at the relevant time, was manager whereupon, the
charge sheet was submitted against the appellant alone
exonerating the others whereupon, trial commenced and
concluded meeting with ultimate result, subject matter of instant
appeal.
3.
4. Defence case as is evident from mode of cross-
examination as well as statement recorded under Section 313
Cr.P.C is that of complete denial. However, neither oral nor
documentary evidence has been adduced on behalf of appellant.
5. In order to substantiate its case prosecution had
examined altogether ten PWs, PW.1-Putul Ghosh, PW.2-Md.
Asharaf Karim, PW.3-Kanchan Devi, PW.4-Vikash Kumar Mandal,
PW.5-Bibi Rani, PW.6-Farhad Jaha, PW.7-Rukhashar Vilkis,
victim (name withheld), PW.8-Md. Allauddin Ansari, PW.9-Dr.
Seema Sinha, PW.10-Mukeshwar Prasad along with exhibits,
Ext.1 Series-Signature of respective witnesses over seizure list as
well as signature of victim over statement under Section 164
Cr.P.C. Ext.2-Written report, Ext.3-Injury report, Ext.4-Seizure
list, Ext.5-Formal FIR. Defence though had not produced oral
evidence but had exhibited Sanha No.45/2013 of Isakchak P.S. as
Ext.A having on the basis of information furnished by the victim at
an earliest.
6. It has been submitted on behalf of learned counsel
for the appellant that from the evidences available on the record, it
is apparent that the version of prosecution suffers from so many
improbabilities infirmities and on account thereof, did not justify
the finding having been recorded by the learned lower court. In
order to substantiate its case, it has been submitted that day of
occurrence happens to be 17.06.2013 while the case has been
registered on 23.06.2013 and the delay, is not at all properly
explained. In criminal case delay in institution of a case happens
to be always subject to close scrutiny. After having such exercise,
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it is apparent that this case has purposely been filed in order to
grapple the appellant for undesired advancement.
7. Furthermore, it has also been submitted that
occurrence is of dated 17.06.2013. If the version of the victim is
taken into consideration, then in that circumstance, its reliability
goes away. She had stated that she was kidnapped in the evening
of 17.06.2013. The prosecution party that means to say the
informant as well as her Mausi, PW.6 who also was employed at
the same office, had visited the office, found the appellant in his
office. None of them had said that appellant became absent from
his office. That being so, the assertion of the victim that she was
confined at the Bhagalpur itself in a rented house and then was
taken to Sahebganj and then was taken to Patna and during midst
thereof, she was raped at the end of the appellant is found with no
substance. In likewise manner, it has also been argued that none
other than PW.7 is witness against the appellant. None had seen
the appellant taking away the victim although, victim had said
that she along with Nandni (Not examined) left the office, covered
some distance and then both two parted with towards their
respective houses, and at that juncture appellant was there with
motorcycle who directed to sit and victim accordingly obeyed. The
aforesaid incident occurred near the house of the victim and on
account thereof, might have been seen by the local inhabitants
but, prosecution happens to be completely silent on that very
pretext.
8. It has also been submitted that from the evidence of
the victim, it is evident that victim was taken away by the
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appellant on the pretext of some official work which was to be
discharged at his office but instead thereof, both of them gone to
resident of the appellant which was at the upper floor occupied by
so many tenants while at ground floor itself landlord PW.3 as well
as PW.4 were residing. She remained there for four days. She
availed all kinds of facility. Had there been any kind of deception
at the end of the appellant, then in that event, victim would not
have allowed herself to accompany him to his rented house
instead thereof, would have raised alarm, protested the activity
and at least, the other co-tenants, landlord, land lady must have
been informed who, would not have allowed a stranger that too a
girl being kidnapped and kept at there place. In likewise manner
happens to be the activity of the victim while she was taken to
Sahebganj on motorcycle, from Sahebganj to Patna and then
Patna to Bhagalpur where, she boarded down from a jeep and
gone to Isakchak Police Station where she narrated her woe
fingering her Mausi and others. However, after having company of
her parents she changed herself and dragged the appellant. Even
for a moment, considering the appellant to be responsible for the
same, the conduct of the victim itself suggest that being major she
was a consenting party and that being so, she enjoyed company of
the appellant voluntarily out of her free will whereupon, no offence
is made out.
9. The learned Additional Public Prosecutor while
refuting the submission made on behalf of appellant has
submitted that females still are not so confident in order to
confront and tackle the situation once she is found under the grip
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of her kidnapper. She virtually surrenders and that happens to be
reason behind that activity of appellant was not at all protested at
the end of the victim and in likewise manner, even during her stay
with the appellant. That does not mean that victim was a
consenting party. Moreover, when the victim comes in court and
depose that she was not a consenting party, then the court, as
provided under Section 114A of the Evidence Act will presume
that she was not a consenting party unless and until duly
substantiated at the end of the accused. Accordingly, the
judgment of conviction and sentence impugned is fit to be
confirmed.
10. PW.9 is the doctor who had examined the victim on
30.07.2013 and found the following:
“There is no evidence of physical or
chemical injury on any parts of the body
including the private parts. Two sealed
vaginal swab sent to the department of
Pathology J.L.N.M.C.H., Bhagalpur for the
detection of spermatozoa and urine test
for pregnancy. Also sent to the department
of Radiologist JLNMCH, Bhagalpur for the
X-ray at lateral view of wrist elbow pelvis
for age determination and usb of lower
abdomen to exclude pregnancy.”
There is no evidence of physical or chemical injury
on any part of the body including the private part. Vaginal swab
taken out and sent for chemical examination. For ascertainment
of age, she was also sent to ossification test and after getting the
same she had opined that there was no dead/alive spermatozoa
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found in the vaginal swab. Urine test discloses, pregnancy test
negative and according to ossification report she happens to be
more than eighteen years. So she concluded that there was no
evidence of recent intercourse as well as she happens to be more
than 18 years of age. The aforesaid finding has not been
challenged at the end of both the parties whereupon, the victim is
found and held to be major.
11. From the evidence available on the record, it is
evident that none other had claimed to be an eyewitness to
occurrence. That means to say, what have they deposed against
the appellant happens to be on the basis of disclosure having been
made by the victim. That being so, first of all the evidence of victim
is to be seen.
12. PW.7 had deposed that the occurrence is dated
17.06.2013. She was working at S.A.P. Company of which, Sumit
Kumar was the Manager. She used to go office at 09:00 AM and
returned back at 06:00 PM. On 17.06.2013 she along with
Nandni, another employee were coming on barefoot. After covering
some distance, they both parted with. Nandni moved towards her
house while she towards her house. When she reached at
Gorhatta Chowk, Sumit Kumar came on motorcycle and
instructed her to sit over which, she inquired. Then, Sumit Kumar
disclosed that there happens to be urgent work at the office. She
disclosed that she has to go to house. Evening has fallen over
which, Sumit said that he will accompany. He had also disclosed
that whether she has got trust over him or not whereupon, she sat
over motorcycle and gone along with him. He taken her to his
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residence where she stayed for 4-5 days. He used to rape her in
night. He used to administer something and then, left for office
after closing the door. He used to threaten even to the extent of
causing murder. After 4-5 days Sumit taken her to Sahebganj
where she stayed for 10-12 days. Then thereafter, Sumit had
taken her to Patna on four wheeler where she stayed in a hotel for
two days. Then he took back to Sahebganj and then Sahebganj to
Isakchak Police Station where he instructed to go to Police
Station. She accordingly gone to Police Station. Police inquired.
She is not remembering what she had disclosed to the police. Her
statement was recorded in court under Section 164 Cr.P.C.
Accused has committed rape even at Patna. Identified the accused
in dock. During cross-examination at para-4 had stated that the
chamber of accused Sumit Kumar was away from their place of
sitting. In para-5, she had stated that Sumit Kumar had not
directed her to come leaving her sit at any earlier time. In para-6,
she had stated that she met with Sumit Kumar. On 03-07-2013
on query made by the Officer-in-charge of Isakchak Police Station
she had made statement but she is unable to say whether Sanha
No.45/2013 was registered thereupon. In para-9, she had stated
that she knew Farhad Jaha who happens to be her Mausi. She
was also working at the office along with her. In para-8, her
attention has been drawn up regarding her statement which she
made before Officer-in-charge, Isakchak whereupon Sanha
No.45/2013 was registered. In para-9, she had stated that from
Isakchak Police Station she was sent to Mujahidpur Police Station
along with lady constable. In para-10 she had stated that she had
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not gone to the residence of Sumit Kumar since before. It lies at a
distance of half kilometer from the office. It was on upper floor.
There was two rooms. In para-12, she had stated that the room in
which she was kept had a window. She is not knowing whether
people were residing adjoining to the aforesaid tenanted portion.
She had further stated that she is not knowing whether the doors
of the window could be open from inside. Both two rooms were not
interconnected rather they have got separate identity. Two
independent doors were affixed. In para-13, she had stated that
latrine, washroom was outside the aforesaid two rooms. There was
no ventilation in the latrine as well as wash room. In para-15, she
had stated that she use to go to latrine, washroom after arrival of
Sumit Kumar. She remained there for 4-5 days. She was not
knowing whether kitchen was there or not but, he had provided
the food stuff after bringing from outside. In para-16 she had
stated that as she was confused as such, she had not raised alarm
nor she made any kind of protest, even failed to knock the door for
her help after departure of Sumit who used to visit from office
twice or thrice a day. In para-17, she had stated that within half
an hour she reached at Sahebganj. During midst thereof, she had
not tried to jump from the motorcycle nor had raised alarm. In
para-18, she had stated that she stayed at Sahebganj for 10-11
days. The building wherein they stayed had got a courtyard. She
is unable to say whether tenants were residing in the building or
not. They were occupying two rooms. How many rooms were there,
she was unable to say. In para-12, she had stated that she had
not met with any outsider at Sahebganj. There was a window in a
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room wherein she was staying but, she had not opened the same.
In para-20, she had stated that latrine, washroom was in
courtyard at a distance of five steps from the room wherein she
was. She is unable to say whether it was a common wash room,
latrine. In para-21, she had stated that at the time when she was
boarding in a vehicle, she had not raised alarm. She was taken to
Patna. In the midst of way she had not raised alarm. She had not
tried to escape. She had not indulged in grappling with the
accused. In para-22, she had stated that she stayed at Patna in a
hotel for two days. She met with the Manager, Waiter, Sweeper
but she had not spoken anything to them. She had not tried to
escape from the hotel. They used to take meal. In para-24, she
had stated that she had not sustained injury. They both returned
from Patna on four wheeler. While returning from Sahebganj over
motorcycle, she had not raised alarm.
13. PW.8 is the Md. Allauddin Ansari, the informant,
father of the victim. He had stated that on the alleged date i.e.
17.06.2013 his daughter had gone to her office. She used to
return at 06:00 PM. When she had not returned then at 07:00 PM
he dialed Sumit. He disclosed that she was to reach at her house
as all the staff had gone. Then he contacted Nandni who disclosed
that she along with victim jointly returned from the office. Then,
thereafter, she gone to her house while victim had proceeded
towards her house. Then thereafter, he began to search. On
18.06.2013 he had informed the Mujahidpur P.S. After 3-4 days of
the occurrence he had gone to the office of his daughter where
found Sumit. He made query from him whereupon he said that he
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will also search. After 14-15 days he received telephonic call from
Mojahidpur P.S. disclosing that his daughter has been traced out
please come to P.S. Then thereafter, he came to P.S. On query
police officials had said that after statement of the victim she will
be handed over. Then his daughter was taken from Mujahidpur
P.S. to court where her statement was recorded. She was
medically examined then thereafter, they got the victim. On query
she disclosed that Sumit took her away on the pretext of some
official work and kept her in a house by the side of office for 2-4
days where she was raped. Then thereafter, she was taken to
hither and thither and then to Patna where she was also raped.
She was threatened that in case of disclosure she will be
murdered. Exhibited the written report. During cross-examination
at para-3 he had stated that he met with his daughter at the
police station but could not talked. When his daughter was taken
to court he had accompanied. In para-4, he had stated that first of
all his daughter reached at Isakchak Police Station. He is unaware
with the fact that any kind of statement of victim was recorded by
the Isakchak Police Station. Then thereafter, there happens to be
reference of the aforesaid Sanha and contents thereof. In para-5,
he had stated that none had seen the accused taking away the
victim.
14. PW.6 is the Farhad Jaha who happens to be Mausi
of the victim and was also one of the employees of S.A.P.
Consultant Pvt. Ltd. Where victim was also employed. She had
stated that on 17-06-2017 she had not gone to office. She had
further stated that she along with victim used to come to office
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together but on the alleged date, she had gone alone. When she
did not return up to 06:30 PM then her mother came to her and
disclosed that the victim has not come as yet over which, she
talked with Sumit who disclosed that victim along with Nandni
had already gone. Then thereafter, she talked with Nandni who
also disclosed that she along with victim left the office together.
After covering some distance, she moved towards her house while
victim moved towards her house. Then thereafter, the family
members of the victim became perplexed, they gone in search of
the victim but could not traced out her. Then thereafter, they have
gone to office which was locked. Then they returned back. Again
she talked with Sumit and said victim has not come whereupon he
disclosed that kindly continue with search. When they insisted
that they want to visit his place, whereupon he said that coming
to his place will serve no purpose. Meet tomorrow at office and
then the action plan will be sorted out. Then thereafter they have
gone to police station. Then they returned back. After fifteen days,
they received information from Mujahidpur P.S. that victim has
come whereupon they have gone there. She remained for 2-3 days
and then thereafter she met with her. On query she disclosed that
Sumit taken away to his residence where she stayed for 3-4 days
then to Patna and then to Sahebganj. She disclosed that she was
raped but, she had not disclosed how she had come to police
station. At para-4 of her cross-examination she had stated that no
occurrence took place in her presence. She had further stated that
she had not seen residence of Sumit. She had further stated that
victim had disclosed to her that Sumit had taken her away to
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Patna on four wheeler. They stayed in a hotel where Sumit had
introduced her as his wife. In para-5, she had stated that victim
had not disclosed to her that she had tried to free from the clutch
of appellant. In para-7, she had stated that she had gone to office
on 19-06-2013. Then thereafter she had not gone. On 19.06.2013
only the victim as well as Ashutosh was absent. All the remaining
staffs were present. Then there happens to be suggestion relating
to the activity incorporated in Sanha No.45/2013. In para-11 she
had admitted that she met with Sumit on 19.06.2013 in the office.
She had not perceived any abnormal activity. In para -12, she had
stated that after seeing Sumit in the office she had informed
brother of victim and further requested to come.
15. PW.5 is the mother of the victim. She had stated
that on the alleged date her daughter had gone to office. When she
does not return then thereafter they began to search. When they
could not found then contacted with manager Sumit who
disclosed that victim had left office at about 06:00 PM. Even after
hectic search when they could not traced out then thereafter
instant case has been registered against Sumit on suspicion. After
two weeks victim was found near Isakchak Police Station. After
coming to house she disclosed that Sumit took her away at his
residence and committed rape. She had also disclosed that after
administering sedesive Sumit took her away to Patna. She failed to
identify the accused in dock as she had not seen him since before.
During cross-examination at para-3, she had stated that date of
birth of her daughter happens to be 01-01-1994. She had further
stated that she had not seen the occurrence. In para-5, she had
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stated that her daughter had disclosed that Sumit took her away
on train. She had further stated that her husband had lodged case
against so many persons.
16. PW.4 is the seizure list witness. He happens to be
landlord of Sumit. He had further admitted that police had
searched his room in his presence and had seized comb, mirror
and cloth. During cross-examination, he had stated that Sumit
was residing alone. PW.3 happens to be his wife, another seizure
list witness who had stated that police had conducted raid in the
room occupied by Sumit as her tenant and nothing was found
therefrom.
17. PW.2 is Md. Asharaf Karim who happens to be
maternal uncle of the victim. He had stated that his cousin
(victim) joined a private institution about 38-40 days ago. She
used to return back at 06:00 PM. When she had not returned on
17.06.2013 on account thereof, they all gone in search of her and
during course thereof, they also met with Sumit Kumar, Manager
of the company who had disclosed that she left at about 06:00 PM.
2-5 days thereafter Sumit called Allauddin Ansari (father of the
victim, PW.8) and handed over one letter. He was also
accompanying him. After receiving of the letter Allauddin Ansari
said to Sumit that kindly inform if anything new comes to his
knowledge whereupon, Sumit also disclosed that he on his own
will take sincere effort. On the second day, Sumit had informed
his brother-in-law Allauddin Ansari and said that a dead body of a
girl is lying at village-Jagdispur so kindly go and see. They have
requested Sumit to accompany them but he refused. Then
15.
thereafter, they have gone to Jagdishpur but could not found the
dead body. Then thereafter, they came to Mujahidpur P.S. and
instituted a case. 14-15 days thereafter they received information
from Mujahidpur P.S. with regard to recovery of the victim
whereupon they have gone there. Then the police officials
disclosed that she is coming from Isakchak Police Station. She
came after 10:00 AM. After her examination in the court they got
the victim. On query she had disclosed that on the pretext of some
official work, Sumit took her away to his house and where he gave
some sedative and then raped her. Sumit kept her at that place for
four days and thereafter, Sumit took her away to Patna. He
returned back to office. House of Sumit lies adjacent to the office.
Then had stated that out of fear the victim could not escape.
During cross-examination at para-4 had admitted that his sister
Farhad Jaha was also employed there. In para-5, he had stated
that his sister and the victim used to go together. In para-8, he
had stated that he had not seen the occurrence. In para-9, he had
further stated that case was initially registered against Enamul
Sheikh, Rohit Chaudhary and Ravi Chaudhary. In para -18, he
had stated that he had visited the office twice. At first occasion all
the staffs were present while at second occasion, only Sumit was
present.
18. PW.1 is Putul Ghosh who had not claimed
identification of Sumit nor substantiated tenancy of Sumit and so
was declared hostile.
19. PW.10 is the I.O. who had stated that after
registration of Mojahidpur P.S. Case No.87/2013 he was
16.
entrusted with the investigation. He had recorded further
statement of the informant, visited the place of occurrence which
happens to be the building of Anand Shukla lying at mohalla-
Sikandrapur. He further identified the boundary as North-House
of Akhilesh Kumar Sinha, South-Road, East-Dristy Medical Hall
as sweet shop, West-has not been mention in CD. Then had
disclosed with regard to inadmissible piece of evidence with regard
to collection of material confidentially regarding marriage of Sumit
since before. Then had disclosed that O/c of Isakchak Police
Station had informed that victim has come to police station. He
had gone there and then took the victim along with lady police
constable. Recorded her statement. Got her examined under
Section 164 Cr.P.C. As pointed out by the victim he had gone to
the place where she was confined. He had recorded statement of
the landlord and his wife. Conducted search of the tenanted
portion. Then thereafter, there happens to be statement with
regard to Vikash and his wife PW.2 and 3. He had further
recovered note book, identify card, admit card of I.Sc., photocopy
of mark sheet, provisional certificate, registration number, kept in
a bag and had exhibited the seizure list (but seized articles were
not produced in court). He had also gone to Sikandarpur and
recorded statement of Santosh, Putul Ghosh whether Sanjeet
Kumar lived as tenant. Then had received confidential information
regarding apprehension of accused whereupon he gone there and
took possession. Accordingly, submitted charge sheet under
Section 366A, 376 of the IPC. In para-2, he had stated that he
reached at Isakchak Police Station on 03.07.2013 at about 09:20
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AM, victim had arrived at Isakchak Police Station on the same
day. He is not aware whether victim had given any kind of
statement before the Isakchak Police Station nor with regard to
registration of any kind of Sanha. In para-6, he had stated that
there was common entrance door of the place where victim had
alleged her confinement by Sumit. Landlord as well as other
people were residing adjacent to the said room.
20. From the evidence as discussed hereinabove it is
crystal clear that victim happens to be major one. It is further
evident from the evidence of the victim that she enjoyed company
of appellant /accused Sumit for such long duration without any
resistance protest as well as without any effort to come out from
his grip. Not only this, she gone along with Sumit over motorcycle,
covering long distance and even then, no step was taken at her
end either to escape or to create obscene situation attracting the
mass, facilitating her release. Even her stay at a hotel at Patna
where Sumit introduced here as his wife, was without any protest
at her end. Not only this, victim as happens to be silent that
during course of her company or any time enjoying his company
she was coerced, threatened or was shown any kind of weapon
endangering her life or was ever assaulted. The most peculiar
feature is that she had narrated the whole incident causing
minute to minute detail even, admitting her presence at Isakchak
Police Station, making query by the police official, statement
having been given by her but with regard to contents of the
statement she changed herself by stating that she is not
remembering what she had stated. It relevancy happens to be on
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account of she being alone, and as per her evidence, she was left
by the appellant near about police station without having any
scope of tutoring/influence either from her parents or from the
appellant. The aforesaid statement is under Sanha No.45/2013 of
Isakchak Police Station wherein she had arrayed her Mausi to be
the main culprit who along with Farhad Jaha kidnapped her. Had
there been genuine conduct of the victim, then in that
circumstance, there should have been an admission at her end
with regard to contents of the aforesaid Sanha with some sort of
explanation be adverse to her or to the Sumit Kumar, the
appellant.
21. In Narender Kumar v. State (NCT of Delhi)
reported in (2012) 7 SCC 171, it has been held:
“20. It is a settled legal proposition that once
the statement of the prosecutrix inspires
confidence and is accepted by the court as
such, conviction can be based only on the
solitary evidence of the prosecutrix and no
corroboration would be required unless there
are compelling reasons which necessitate the
court for corroboration of her statement.
Corroboration of testimony of the prosecutrix
as a condition for judicial reliance is not a
requirement of law but a guidance of prudence
under the given facts and circumstances. Minor
contradictions or insignificant discrepancies
should not be a ground for throwing out an
otherwise reliable prosecution case.
21. A prosecutrix complaining of having
been a victim of the offence of rape is not an
accomplice after the crime. Her testimony has
to be appreciated on the principle of
probabilities just as the testimony of any other
witness; a high degree of probability having
been shown to exist in view of the subject-
matter being a criminal charge. However, if the
court finds it difficult to accept the version of the
prosecutrix on its face value, it may search for
evidence, direct or substantial (sic
circumstantial), which may lend assurance to
her testimony. (Vide Vimal Suresh Kamble v.
19.
Chaluverapinake Apal S.P. (2003) 3 SCC 175
and Vishnu v. Sta te of Maharashtra(2006) 1
SCC 283.)
22. Where evidence of the prosecutrix is
found suffering from serious infirmities and
inconsistencies with other material, the
prosecutrix making deliberate improvement on
material point with a view to rule out consent
on her part and there being no injury on her
person even though her version may be
otherwise, no reliance can be placed upon her
evidence. (Vide Suresh N. Bhusare v. Sta te of
Maharashtra(1999) 1 SCC 220.)
23. In Jai Krishna Mandal v. Sta te of
Jharkhand(2010) 14 SCC 534 this Court while
dealing with the issue held: (SCC p. 535, para
4)
“4. … the only evidence of rape was the
statement of the prosecutrix herself and
when this evidence was read in its totality
the story projected by the prosecutrix was so
improbable that it could not be believed.”
24. In Raju v. State of M.P. (2008) 15 SCC
133 this Court held: (SCC p. 141, para 10)
“10. … that ordinarily the evidence of a
prosecutrix should not be suspected and
should be believed, more so as her
statement has to be evaluated on a par with
that of an injured witness and if the
evidence is reliable, no corroboration is
necessary.”
The Court however, further observed: (Raju
case (2008) 15 SCC 133, SCC p. 141, para 11)
“11. It cannot be lost sight of that rape
causes the greatest distress and humiliation
to the victim but at the same time a false
allegation of rape can cause equal distress,
humiliation and damage to the accused as
well. The accused must also be protected
against the possibility of false implication …
there is no presumption or any basis for
assuming that the statement of such a
witness is always correct or without any
embellishment or exaggeration.”
25. In Tameezuddin v. Sta te (NCT of Delhi)
(2009) 15 SCC 566, this Court held as under:
(SCC p. 568, para 9)
“9. It is true that in a case of rape the evidence
of the prosecutrix must be given predominant
consideration, but to hold that this evidence
has to be accepted even if the story is
improbable and belies logic, would be doing
violence to the very principles which govern the
20.
appreciation of evidence in a criminal matter.”
22. In Rai Sandeep v. State (NCT of Delhi), reported in
(2012) 8 SCC 21, it has been held:
“22. In our considered opinion, the “sterling
witness” should be of a very high quality and
calibre whose version should, therefore, be
unassailable. The court considering the version
of such witness should be in a position to
accept it for its face value without any
hesitation. To test the quality of such a
witness, the status of the witness would be
immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would
be the consistency of the statement right from
the starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the case
of the prosecution qua the accused. There
should not be any prevarication in the version
of such a witness. The witness should be in a
position to withstand the cross-examination of
any length and howsoever strenuous it may be
and under no circumstance should give room
for any doubt as to the factum of the
occurrence, the persons involved, as well as
the sequence of it. Such a version should have
co-relation with each and every one of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence and
the expert opinion. The said version should
consistently match with the version of every
other witness. It can e ven be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should
not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version
of such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness can
be called as a “sterling witness” whose version
can be accepted by the court without any
corroboration and based on which the guilty
can be punished. To be more precise, the
version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects should
match the said version in material particulars
21.in order to enable the court trying the offence
to rely on the core version to sieve the other
supporting materials for holding the offender
guilty of the charge alleged.”
23. In Deepak Gulati v. State of Haryana reported in
AIR 2013 SC 2071, it has been held:
“Consent may be express or implied, coerced or
misguided, obtained willingly or through
deceit. Consent is an act of reason,
accompanied by deliberation, the mind
weighing, as in a balance, the good and evil on
each side. There is a clear distinction between
rape and consensual sex and in a case like
this, the court must very carefully examine
whether the accused had actually wanted to
marry the victim, or had mala fide motives,
and had made a false promise to this effect
only to satisfy his lust, as the latter falls within
the ambit of cheating or deception. There is a
distinction between the mere breach of a
promise, and not fulfilling a false promise.
Thus, the court must examine whether there
was made, at an early stage a false promise of
marriage by the accused; and whether the
consent involved was given after wholly
understanding the nature and consequences of
sexual indulgence. There may be a case where
the prosecutrix agrees to have sexual
intercourse on account of her love and passion
for the accused, and not solely on account of
misrepresentation made to her by the accused,
or where an accused on account of
circumstances which he could not have
foreseen, or which were beyond his control,
was unable to marry her, despite having every
intention to do so. Such cases must be treated
differently. An accused can be convicted for
rape only if the court reaches a conclusion that
the intention of the accused was mala fide, and
that he had clandestine motives. Hence, it is
evident that there must be adequate evidence
to show that at the relevant time i.e. at the
initial stage itself, the accused had no
intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be
circumstances, when a person having the best
of intentions is unable to marry the victim
owing to various unavoidable circumstances.
The “failure to keep a promise made with
respect to a future uncertain date, due to
reasons that are not very clear from the
evidence available, does not always amount to
22.misconception of fact. In order to come within
the meaning of the term “misconception of
fact”, the fact must have an immediate
relevance”. Section 90 IPC cannot be called
into aid in such a situation, to pardon the act
of a girl in entirety, and fasten criminal liability
on the other, unless the court is assured of the
fact that from the very beginning, the accused
had never really intended to marry her.”
24. In Abbas Ahmad Choudhary v. State of Assam
reported in (2010) 12 SCC 115 the Apex Court has held:
“Though the statement of prosecutrix must be
given prime consideration, at the same time,
broad principle that the prosecution has to
prove its case beyond reasonable doubt applies
equally to a case of rape and there could be no
presumption that a prosecutrix would always
tell the entire story truthfully. In the instant
case, not only the testimony of the victim
woman is highly disputed and unreliable, her
testimony has been thoroughly demolished by
the deposition of DW-1”
25. According to Jowitt’s Dictionary on English Law
consent means:
“Consent supposes three things, a physical
power, a mental power and a free and serious
use of them. Hence it is that if consent be
obtained by intimidation, force, meditated
imposition, circumvention, surprise or undue
influence, it is to be treated as a delusion and
not as a deliberate and free act of the mind.”
26. In Kaini Rajan v. State of Kerala reported in
2013 AIR SCW 5455 the Apex Court has held:
“12. Section 375 IPC defines the expression
“rape”, which indicates that the first clause
operates, where the woman is in possession of
her senses, and therefore, capable of consenting
but the act is done against her will; and second,
where it is done without her consent; the third,
fourth and fifth, when there is consent, but it is
not such a consent as excuses the offender,
23.because it is obtained by putting her on any
person in whom she is interested in fear of
death or of hurt. The expression “against her
will” means that the act must have been done in
spite of the opposition of the woman. An
inference as to consent can be drawn if only
based on evidence or probabilities of the case.
“Consent” is also stated to be an act of reason
coupled with deliberation. It denotes an active
will in the mind of a person to permit the doing
of an act complained of. Section 90 IPC refers to
the expression “consent”. Section 90, though,
does not define “consent”, but describes what is
not consent. “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 resistance and assent.
Whether there was consent or not, is to be
ascertained only on a careful study of all
relevant circumstances. [See State of H.P. v.
Mango Ram (2000) 7 SCC 224: (AIR 2000 SC
2798 : 2000 AIR SCW 3095)]”
27. From the evidence as referred hereinabove it is
crystal clear that save and except victim none happens to be an
eyewitness to occurrence even to kidnapping and whatever they
deposed, happens to be on the basis of the discosure made by the
victim, PW.7. Now coming to the evidence of PW.7, less said is
better. Staying for such long period along with appellant without
any resistence, without any alarm, without any sincere effort to
get rid of, without protest without having threatening or facing
endanger of her life coupled with the fact that she intentionally
24.
withheld the contents of Ext.A is a circumstance, in the
background of her status to be major, with regard to her
uncreditworthyness and that being so, the judgment of conviction
and sentence recorded by the learned lower court did not find
favour. Consequent thereupon, is set aside. Appeal is allowed.
Appellant is on bail, hence is discharged from its liability.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE 07.11.2017
Uploading Date 29.11.2017
Transmission 29.11.2017
Date
