HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 13
Case :- CRIMINAL APPEAL No. – 492 of 1999
Appellant :- Ram Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Vimal Kumar,Brij Nandan Yadav,Om Prakash Yadav
Counsel for Respondent :- Government Advocate
Hon’ble Virendra Kumar-II,J.
1. Heard Sri Brij Nandan Yadav and Sri Om Prakash Yadav, Advocates for the appellant and learned A.G.A. for the State.
2. This appeal has been preferred assailing the impugned order and judgment dated 16.09.1999 passed by Additional Sessions /Special judge, Hardoi in Sessions Trial No. 216 of 1995 under Section 376 I.P.C., Police Station Atrauli, District Hardoi.
3. The appellant has been convicted and sentenced to undergo rigorous imprisonment of seven years for the offence punishable under Section 376 I.P.C.
4. In the grounds of appeal, it is pleaded that during the course of investigation statement of victim was not recorded under Section 164 Cr.P.C. The Investigating Officer procured medical examination of the victim twice. First medical examination report did not show any sign of rape committed upon the prosecutrix. She was further examined by the concerned doctor and injuries on her body was manipulated. It is also pleaded that Investigating Officer has not sent clothes worn by the victim as these clothes were allegedly blood stained, for chemical analysis during the course of investigation.
5. It is also pleaded that F.I.R. of this case was lodged with delay, whereas police station was situated at short distance. The trial Court has not considered the principle of criminal jurisprudence and erred in appreciating the oral testimony of witnesses. It has not considered and appreciated the defence version of the appellant. Although material contradictions appeared in the statements of eye witnesses and the victim, even then their testimony was not disbelieved. Appellant was enlarged on bail during the course of trial and he had never misused the same. The impugned order and judgment is bad in eye of law. On the basis of these grounds, it is prayed that impugned judgment be set aside.
6. I have perused the record of Sessions Trial no. 216 of 1995: State Versus Ram Singh under Section 376 I.P.C. As per prosecution version, the complainant PW-1 lodged written report (Ex. Ka-1) at Police Station Atrauli, District Hardoi on 16.12.1993 at 16.30 hours. Check F.I.R. (Ex. Ka-6) was registered at the Police Station and G.D. of registration of crime (Ex. Ka-7) was prepared.
7. The complainant has narrated in written report (Ex. Ka-1) that his daughter aged about 15 years went on 15.12.1993 at 04.30 p.m. to attend natural call in the agricultural field of Bhagwan Deen. The appellant-Ram Singh caught hold her and threw her on the ground. He had tied her hand and legs and committed rape with her. He also gave bite on her body. Mark of bite and bleeding were there on the body of victim, her clothes were soaked with the blood. Victim raised alarm then the complainant and witness Kanhaiya Lal reached at the place of occurrence. They un-tied her hands and legs and complainant brought her at house. It is mentioned in the written report that due to fear of the accused he could not lodged F.I.R. on the date of occurrence. On the next day i.e. 16.12.1993 he went at the Police Station and submitted this written report.
8. The victim was medically examined by the Gynecologist PW-4 Dr. Shobha Puri and Medical Examination Report (Ex. Ka-2) was prepared by her. On the basis of reference letter (Ex. Ka-9) sent by Police Station Atrauli, she was again medically examined on 22.12.1993 by the Medical Officer of Primary Health Centre, Bharawan, District Hardoi. On the basis of reference (Ex. Ka-5) sent by Police Station Atrauli, PW-4 prepared supplementary report (Ex. Ka-3). PW-5 Doctor Ramesh Chandra Agarwal, Radiologist carried out under his supervision X-ray of elbow, knee and wrist of the victim on 21.12.1993. X-ray report (Ex. Ka-4) and X-ray plate (material Ex. Ka-1) were prepared by him.
9. During course of investigation, the Investigating Officer prepared Site Plan (Ex. Ka-10) and prepared Recovery Memo (Ex. Ka-8) of blood stained petticoat of the victim worn at the time of incident. He recorded statements of witnesses and victim and submitted charge-sheet (Ex. Ka-11) against the appellant.
10. The trial Court after committal of this case on 22.03.1995 by Judicial Magistrate, II Hardoi framed charge against the appellant for offence punishable under Section 376 I.P.C. The appellant/accused denied the charge framed against him and claimed to be tried.
11. The Trial Court recorded statement of PW-1 complainant Sri Munni Lal, father of the victim, PW-2 Kanhaiya Lal-eye witness and PW-3 victim. PW-4 Dr. Smt. Shobha Puri,PW-5 Dr. Ramesh Chandra Agarwal, PW-6 S.I., Yash Pal Singh, PW-7 Constable Bachchoo Lal and PW-8 Constable Ram Shanker Yadav. These witnesses have proved the above mentioned documents.
12. The statement of accused was recorded under Section 313 Cr.P.C. by the Trial Court. He denied the prosecution version and stated that he was falsely implicated due to enmity.
13. No oral or documentary defence evidence was adduced by the appellant during the course of the trial.
14. Learned counsel for the appellant has firstly argued that presence of the complainant PW-1 and the alleged eye witness PW-2 Kanhaiya Lal at the place of occurrence is doubtful, because it is not specifically mentioned in the written report (Ex. Ka-01) by the complainant that they saw him, while he was committing rape with the victim.
15. I have perused statement of PW-1 complainant and eye witness PW-2 Kanhaiya Lal. At the outset, it is relevant to mention here that this argument was not put forth on behalf of appellant before the Trial Court. The only argument put forth on behalf of appellant was before the Trial Court on the basis of delayed F.I.R. and medical examination conducted by the Doctors twice in suspicious circumstances with intention to falsely implicate the appellant in this crime. It was also argued that no injury was found on the private parts of the victim and she was habitual to sexual intercourse. Next argument put forth before the Trial Court was that blood stained petticoat was not sent by the Investigating Officer for chemical examination.
16. I have perused the statement of PW-1. PW-1 in his cross examination has stated that the victim raised alarm during the course of incident when the appellant committed rape with the victim and had bite in her neck, the complainant and witness Kanhaiya Lal reached there then the appellant escaped towards north side from the place of occurrence. They saw the victim, while the appellant was committing rape with the victim.
17. PW-1 in his cross-examination has disclosed this fact that agricultural field of Bhagwan Deen was situated at a distance of half kilometer from the village. He had identified this agricultural field by its boundaries and stated that on the East side agricultural field of Babu Ram and Daya Ram, on North side grove of Ram Pal Singh and on South side agricultural filed of Munua was situated and, on the West side way is situated. He has specifically stated that on the date and time of the incident he was present in his agricultural field, which was situated on the north side from the place of occurrence, after 4-5 agricultural fields. He has also stated that witness Kanhaiya Lal reached there after purchasing clay plot (Handi) from Jagdishpur. He has disclosed distance one kilometer between his village and Jagdishpur. He has specifically disclosed that witness Kanhaiya Lal reached near his agricultural field.
18. PW-1 on page 6 has stated that when he reached at the place of occurrence, appellant Ram Singh was lying on his daughter-victim and he was committing rape with her. He has pin-pointed the place of occurrence in the agricultural field of Bhagwan Deen by stating that it was situated on the Western side of the agricultural field and in the northern side appellant was lying on his daughter. He saw that Ram Singh had tied both hands of his daughter by “angauchha” and he tied both legs of the victim with “dhoti”. He has specifically stated in his cross examination that at point of time of incident his daughter worn “dhoti”, petticoat and blouse. “Dhoti” was available on the place of occurrence, beside the victim. She was wearing petticoat and blouse. The appellant-accused gave bite in her neck from which bleeding was there. Blood was also oozing from her private parts, which was soaked on the petticoat.
19. On page 9, during cross examination PW-1 has clarified that he was irrigating his field at the time of incident. He has stated that victim was un-married on the date of incident and Ram Singh was having visiting terms with him, because he is next door neighbour. Therefore, on perusal of examination-in-chief and cross examination of witness PW his presence at the place of occurrence cannot be doubted. His evidence is reliable, credible and inspire confidence that appellant committed rape with his daughter on the date of incident.
20. PW-2 Kanhaiya Lal in his examination-in-chief has stated that on the date of incident at about 04.30 p.m. he was returning back from Jagdishpur after purchasing clay pot (gharha) and reached on the corner of Western and Northern side of agricultural field owned by Sri Prakash. From this place he heard alarm raised by the victim. He went in the agricultural field of Bhagwan Deen, which was taken on “batai” by him. He saw the appellant, when he was lying on the victim. PW-2 has also stated that when he scolded the appellant, he escaped towards Western-Nothern side. He has specifically stated that father of the victim, Munni Lal also reached at the place of occurrence. They saw that both hands and legs of the victim were tied with “angauchha” and “dhoti”. They brought the victim at house. He saw the bite marks on neck of the victim and blood soaked on her petticoat.
21. PW-2 in his cross-examination has clarified that he was returning back from Jagdishpur after purchasing clay plot (gharha). He went at about 3.00 p.m. at Jagdishpur, which is situated at a distance of one kilometer from his village. On page 3, during cross examination PW-2 has specifically stated that he reached first at the place of occurrence, then the complainant Munni Lal reached there. They saw that hands and legs of the victim were tied, she was lying on the ground from the side of her back. Her legs were tied with “dhoti” and hands were tied with “angocchha”. Blouse of victim was lying beside her. Blood was oozing from her neck and private part. Blood was soaked on her petticoat and fell on the ground also.
22. Specific question was put before the victim during her cross examination that whether she apprised him that appellant committed raped with her. PW-2 replied to this question that victim apprised his father in his presence about this fact. PW-2 has refuted suggestion put forth on behalf of the appellant that he did not see the incident and he was not present at the place of occurrence. Therefore, his presence at the place of occurrence is apparent on the basis of his examination-in-chief and cross examination.
23. Both the witnesses PW-1 and PW-2 reached at the place of occurrence, on the basis of alarm raised by the victim and saw the accused, while appellant was committing rape with the victim by tiding her hands and legs and he was lying on the victim during the incident. They un-tied the hands and legs of the victim and brought her at the house of the victim. Therefore, their presence on the place of occurrence cannot be doubted as argued by learned counsel for the appellant. PW-1 was present in his agricultural field for the purpose of irrigating it and PW-2 reached near the place of occurrence, while he was returning back from Jagdishpur after purchasing the clay pot (gharha), therefore, there is no substance in the argument put forth on behalf of the appellant.
24. Learned counsel for the appellant has also argued that there is material contradiction in the statements of PW-1, complainant and PW-2 eye witness and PW-3 victim regarding crop available at the place of occurrence and place of occurrence has been shifted also on the basis of evidence of these witnesses. PW-1 and PW-2 have proved this fact that the appellant committed rape with the victim in the agricultural field of Bhagwan Deen, which was taken by him on “batai’. When PW-1 and PW-2 reached at the place of occurrence and saw the appellant while he was committing rape with the victim, he fled away from the place of occurrence leaving the victim in the state of her hands and legs tied with “angauchha” and her “dhoti”.
25. Victim PW-3 in her statement/examination-in-chief has stated that on the date of occurrence at about 4.30 p.m. she went in the agricultural field of Bhagwan Deen to attend the natural call. Bhagwan Deen took this agricultural field from Sri Prakash on “batai”. She has pin pointed the place of occurrence on the Northern-Western side of this agricultural field, where appellant caught hold her from behind. She has specifically stated that the appellant tied her hands with handkerchief and her legs were tied with her “dhoti”. She has stated that Ram Singh put off her pant and he put off her petticoat, then committed rape with her and gave bite in her neck. He committed rape with her against her will. She has clarified this fact that she raised alarm during the course of incident and her father and witness Kanhaiya Lal reached there. They scolded and exhorted the appellant then the appellant escaped towards Northern side leaving her. Her father un-tied her hands and legs. She has specifically stated that blood was oozing from her private part and neck.
26. PW-3 victim in her cross examination on page 5 has stated that after attending natural call, she walked 3-4 paces. Way “Galiyara” was situated near place of occurrence/agricultural field, where appellant caught and hold her from behind. She has clarified that her blouse and “dhoti” were put off. Her legs were tied with her “dhoti”. Prior to that the appellant tied her hands at her wrist and her hands were put towards her head.
27. On page 6, PW-3 has stated that appellant shut her mouth by his hand, therefore, she could not raised alarm for the first time. She raised alarm also when appellant tied her hands and legs. In the end of page 6 and on page 7, victim has specifically stated that when appellant was committing rape with her, witness Kanhaiya and her father reached there and saw him, while he was committing rape with her. She was lying on ground by his back and her petticoat was put off by the appellant. She has specifically stated that from friction on ground, she did not sustain injuries on her back and thigh, because there sand of the agricultural field was available. Ram Singh committed rape with her for 1-2 minutes. She felt irritation in her vagina and blood was oozing from her private part. There was swelling also.
28. On page 4 and 7, victim has narrated this fact that injury sustained by her on her neck was shown to the Constable, Munshi at the Police Station by her. On page 8, she has stated that she had also shown this injury at Hardoi. She has refuted this suggestion that she was having sexual intercourse with any other person, namely, Kalloo, who is son of Bhagwan Deen. She has also refuted this suggestion also that she was habitual to sexual intercourse prior to the date of incident.
29. On page 10, she has clarified that handkerchief was of size of “angauchha”. She narrated this fact to the Investigating Officer that the appellant tied her hands towards her head. On page 11, she has also clarified that owner of agricultural field Sri Prakash is not residing in her village. She has also stated that when witnesses (PW-1 and PW-2) scolded and exhorted him, then appellant escaped from the place of occurrence.
30. Therefore, statement of PW-3 victim is corroborated by the statement of the complainant PW-1 and witness PW-2. Her evidence is credible, trustworthy and reliable and it cannot be discarded on any score. There is no material contradiction in the statement of these witnesses PW-1 to PW-3 regarding the factum of the incident.
31. Learned counsel for the appellant has vehemently argued that PW-1 the complainant has stated in his cross examination that crop of wheat was available in the agricultural field of Bhagwan Deen and this crop was crushed during the course of incident. He has specifically stated that this crushed crop was shown to the Investigating Officer and presence of Kanhaiya Lal, near the place of occurrence, was also shown to the Investigating Officer. Whereas PW-2 has stated during his cross examination that in the agricultural field there was no crop available. He has accepted this fact that near the place of occurrence, way is situated, which is running in the direction Northern to Southern.
32. It is pertinent to mention her that PW-2 witness has specifically stated that incident occurred in the Western side of this way at a distance of 10 paces in the agricultural field. Therefore, there is no material contradiction in the statement of PW-1 and PW-2 regarding the place of occurrence. Both the witnesses have specifically stated that incident occurred in the agricultural field of Bhagwan Deen, which was taken by him on “batai” from owner Sri Prakash.
33. It is also relevant to mention here that no question was put up before PW-3 victim, whether any crop was available in the agricultural field of Bhagwan Deen at place of occurrence, where the appellant committed rape with her. Likewise no question was put up to PW-6 Investigating Officer, S.I.,Yash Pal Singh or PW-8 Constable Ram Shanker Yadav regarding the fact, whether crop of wheat was available in the agricultural field of Bhagwan Deen or not, which was allegedly crushed during the course of incident as stated by PW-1, which was shown by him to the Investigating Officer.
34. The Investigating Officer in Site Plan (Ex. Ka-10) has mentioned that at place “Marked B and C” PW-1 and PW-2 witnesses were present at the date and time of the occurrence. At place “Marked A” the Investigating Officer has mentioned it as “place of occurrence”. In this agricultural field owned by Sri Prakash and taken by Bhagwan Deen on “batai” in the Northern-Western side, some “patawar” has been shown to be available in this agricultural field. Therefore, inference cannot be drawn on basis of this fact that there was no crop available in this agricultural field as stated by PW-1. PW-1 has specifically stated that he shown this crop crushed during the course of incident to the Investigating Officer at the time of preparation of site plan.
35. The following case law is relevant regarding fault committed by the Investigating Officer during the course of investigation. Moreover, site plan is not the substantive piece of evidence, which has been relied upon by the learned counsel for the appellant.
9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former’s evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-Judge Bench of this Court in Tori Singh v.State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580]. In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:
“… the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.”
5. A bare perusal of the High Court’s Judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs. 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location gaslight in the site plan was fatal. This Court in Shakti Patra and another v. State of West Bengal 1981CriLJ645 held that where prosecution witness testified that he had identified the accused in the light of the torch, held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat 1983 CriLJ 1049. It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr. 1998 CriLJ 2034 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigation Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short ‘Cr. P.C.’). The position is no different in case of site plan.”
36. Therefore, on the basis of exposition of law propounded by Hon’ble Supreme Court, there is no substance in the arguments of learned Counsel for the applicant that there is any material contradiction in the statements of PW-1 to PW-3, witnesses or shifting of place of occurrence as argued by learned counsel for the the appellant. All the three witnesses PW-1 to PW-3 have proved this fact that appellant has committed rape with appellant in the agricultural field of Bhagwan Deen on the Northern-Western side, where PW-3 went to attend natural call.
37. Learned counsel for the appellant has further argued that there is delay of about one day in lodging the F.I.R. of this incident, which has not been satisfactorily explained by the prosecution. Learned Trial Court has considered this argument and recorded finding that there is no delay in lodging F.I.R. Learned Trial Court has recorded finding that after sun-set, the village persons are scared to move in the night to lodge the report against the accused. In the morning complainant Munni Lal might to dare to lodge the report. He might have made some arrangements for going to Police Station Atrauli. The Trial Court has specifically recorded finding that PW-1 has stated before the Court that he could not go to Police Station immediately after incident for lodging report against the accused, due to his fear. Thus, delay has been explained. On the point of delay for lodging F.I.R., the following case law is relevant:
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 the 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.
In the case of 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 the 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 the 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 the 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 the 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 : AIR1991SC63 ; Jamna vs. State of UP : 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 : AIR1991SC63 ; Jamna vs. State of UP : 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 1999 CriLJ 2025 : “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:
Hon’ble Supreme Court has 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.
38. On the basis of exposition of law, propounded by Hon’ble Surpeme Court, the contention put forth on behalf of appellant regarding delay in lodging F.I.R. is immaterial and not fatal for the prosecution.
39. I have also perused the statements of PW-1 to PW-3 in this regard. PW-1 has proved his written report (Ex. Ka-1). He has stated in his examination-in-chief that due to fear of the accused, he could not go at the police station on the date of incident. He went at Police Station Atrauli on the next day along with the victim.
40. On page 5, he has explained that he requested the villagers to accompany him to lodge the F.I.R., it was winter season and month of “Aghan”. Therefore, due to night hours, nobody was prepared to accompany him. On the next day, in the morning he proceeded on foot at about 8.00 a.m. and reached at Police Station at 3.30 p.m. He got report written by some person outside the police station. He has refuted the suggestion put forth on behalf of the appellant that report was lodged by him with consultation and deliberation of the police personnel. He has specifically stated that his written report was not dictated by “Munshi” of the police station.
41. PW-1 has also refuted the suggestion on page 10-11, during his cross examination that there is any dispute of flow of water from “pernala” of appellant on his “barvari”. Due to this dispute and altercation occurred between him and family members of appellant Ram Singh, and due to this incident appellant was falsely implicated in this crime by him. He has also refuted the suggestion that Kanhaiya Lal is his uncle. It is pertinent to mention here that no such fact has been stated by the accused in his statement recorded under Section 313 Cr.P.C., as suggested to PW-1, the complainant. On the other hand, it is stated by him, he has falsely been implicated due to enmity.
42. PW-2 Kanhaiya Lal has stated that he did not ask any villager to accompany them to lodge the F.I.R.. The complainant-Munni Lal requested the villagers, who refused and told him that he is the father of the victim, therefore, he should go to lodge the F.I.R. During his cross-examination on page 5, PW-2 has stated that Munni Lal proceeded at 10.00 a.m. from village to lodge F.I.R. He has accepted this fact that he did not accompany the complainant for lodging F.I.R.
43. PW-2 has clarified this fact that when they reached in the village from the place of occurrence, it was evening time of sun-set. He has also clarified this fact that on the date of occurrence nobody was working in their agricultural fields. He has stated that he is of same caste to the complainant-Munni Lal. He belongs to caste “Yadav”. The Investigating Officer has not recorded statement of complainant in presence of PW-2, therefore, he is unable to disclose this fact that the complainant-Munni Lal got written report from whom, because he did not accompany him for lodging the F.I.R.
44. Likewise, PW-3 victim has stated in her examination-in-chief that on the date of occurrence, it was late, therefore, they could not go at the police station. She went along with her father on the next day to lodge the F.I.R. During her cross-examination on page 3, victim has specifically stated that she was waiting outside the police station and her father lodged written report at the police station. On page 4, victim has clarified that after taking their meal they proceeded on foot on the next day at about 12.00 p.m.
45. PW-2 and PW-3 the victim both are rustic illiterate person and they have put their thumb impression on their statements, therefore, any discrepancy pointed out by the learned counsel for the appellant in statement of PW-2 and PW-3 regarding the fact at which time complainant and victim proceeded for lodging F.I.R. of this case is not so material. They adduced their evidence after about three years of incident, therefore, in the month of September of 1996. Incident of this case occurred on 15.12.1993, therefore, some contradictions are natural to appear in the statements of witnesses, which are not material to extend any benefit to the appellant.
46. On the other hand, it is pertinent to mention her that PW-1 has specifically stated that he reached at the police station Atrauli at 3.30 p.m.. F.I.R. was lodged of this case on 16.12.1993 at 16.30, therefore, delay for lodging F.I.R. has been properly explained by the complainant and the victim and P.W.-2 Kanhaiya Lal. There is no substance in the argument of appellant in this regard.
47. Learned counsel for the appellant has further argued that the victim was medically examined twice on the basis of reference made by the police personnel/Investigating Officer of police station Atrauli to create medical evidence against the appellant. It is vehemently argued that according to PW-4 Dr. Shobha Puri, victim was found habitual to sexual intercourse and no external injury or bleeding was found on her private part.
48. Due to fault and omission of the prosecuting officer, injury report dated 22.12.1993 could not be proved on behalf of the prosecution, but its reference (Ex. Ka-9) has been proved by PW-7, Investigating Officer-Yash Pal Singh PW-6 has prepared in his own handwriting Ex. Ka-5 reference slip. He has also recorded statement of victim. During his cross- examination PW-6 has also accepted that he prepared reference slip dated 17.12.1993 on the basis of which victim was medically examined on 18.12.1993.
49. PW-6 has specifically stated that he recorded statement of victim at police station in which she apprised him that her hands were tied with her “dhoti” towards her head. This fact may be recorded by the Investigating Officer PW-6 with carelessness, because it is stated by PW-1, PW-2 and PW-3 that the appellant tied hands of the victim with “angauchha” and legs of the victim were tied with her “dhoti”, which were un-tied by PW-1 and PW-2 witnesses. Victim PW-3 has made the same statement that her hands were tied by the appellant with handkerchief of size of “angauchha” and legs were tied with her “dhoti”. PW-3 victim has stated in her cross examination on page 10 that she has not apprised the Investigating Officer that appellant tied her both hands with her “dhoti” on the back side, therefore, this contradiction does not extend any benefit to the appellant.
50. I have perused the injury report dated 22.12.1993, which is prepared by the Medical Officer on the back side of Ex. Ka-9. This reference slip was proved by PW-7 Constable Bachchoo Lal. The concerned Medical Officer found multiple abrasion on left side of the neck of the victim in area 7.0 cm x 2.5 cm. Colour of these injuries was black. Injury no.2 eliptical abrasion on right side of trachea of size of 4.0 cm x 3.0 cm of black colour was found on the neck of the victim. The concerned doctor has opined that these injuries were sustained by the victim seven days ago.
51. It may be possible that PW-7 ignored these injuries while F.I.R. of this case was lodged by him and Check F.I.R. (Ex. Ka-6) was prepared by him and G.D. (Ex. Ka-7) of registration of this crime was written by Head Constable Bhawant Singh. PW-3 victim has specifically stated that she had shown her injuries sustained on neck to “Munshi” of police station. These injuries were seven days old, according to opinion of the concerned doctor. Therefore, it cannot be doubted that statement of victim regarding sustaining of these injuries on her neck was incorrect or wrong.
52. As far as it is argued that PW-4 Dr. Shobha Puri has opined that there was no fresh injury on private part of the victim and hymen was torn and old healed and two fingers entered easily in vagina of the victim and no spermatozoa was found in the slide of smear taken from her vagina. PW-4 has proved medical examination report (Ex. Ka-2) and supplementary report (Ex. Ka-3) and opined that radiological age of victim was 19 years.
53. PW-5 Radiologist has carried out X-ray of wrist, knee and right elbow of the victim and prepared X-ray report dated 21.12.1993 (Ex. Ka-4). It is relevant to mention here that PW-4 Dr. Shobha Puri has opined in her cross examination that tears of hymen found by her could be seven days old. PW-3 victim has disclosed this fact in her cross examination that her medical examination was conducted on the third day of the incident. Therefore, bleeding from her vagina might have stopped and washed/cleaned by the victim. Internal injury sustained by her might have not been observed by PW-4 due to lapse of time of two days. PW-4 on page 4 has opined that on the first sexual intercourse, bleeding may occur from private part, tear of hymen and marks of struggle may be found on the body of victim. Regarding injuries on the private part and spermatozoa in the slide of smear, the following case law is relevant:
Hon’ble Supreme court (Division Bench) in the case of State of Himachal Pradesh vs. Gian Chand AIR 2001 SC 2075 has observed as follows:-
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(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 : 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 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) one of the member of the Bench 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 Karnatka 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 in (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.
54. The next argument was put forth by learned counsel for appellant that petticoat soaked with blood, as stated by PW-1 to PW-3 and taken in possession by PW-7 through recovery memo (Ex. Ka-8) was not sent for the chemical examination to Forensic Lab.
55. The Trial Court has recorded finding that it may be fault of the Investigating Officer that petticoat having blood stained was not sent to Forensic Lab for chemical analysis. The fault of the investigation may not extend any benefit to the appellant/accused. PW-7 Bachcchoo Lal has proved this fact that he took blood stained petticoat of the victim in presence of witnesses Madhu Ram Das and Munni Lal and prepared recovery memo (Ex. Ka-8).
56. Cross examination of PW-7 was closed on 17.08.1999 after giving opportunity to learned defence counsel, therefore, no cross examination was made on behalf of appellant on recovery memo (Ex. Ka-08). Cross examination dated 05.04.1999 relates to reference slip dated 17.12.1993 and he did not see “angauchha” of victim at police station.
57. There is no case of the prosecution that victim was having any “angauchha” with her, whereas PW-2 witness has disclosed this fact that after un-tiding hands of the victim “angauchha” was left on the place of occurrence, by which appellant had tied hands of the victim during the course of the incident. Therefore, Investigating Officer was also careless for collecting “angauchha” from the place of occurrence, which is apparent on the basis of statement made by PW-2, during his cross examination.
58. The Investigating Officer PW-6 S.I. Yash Pal Singh or another Investigating Officer S.O. Narendra Singh did not send this blood stained petticoat of the victim for chemical analysis at Forensic Laboratory, which was taken into possession through Ex. Ka-8 by PW-7. Therefore, it was fault of the Investigating Officers and no benefit of this fact can be extended to the appellant. In this regard the following case law is relevant:
17. A further reason for disbelieving the evidence of Prithvi is that, while Prithvi stated that he could see the assailants because there was light on the spot coming from a bulb fitted in an electric pole near the chakki of Birbal (which was situated about fifteen steps from the place of occurrence) the investigating officer (PW 36) when cross-examined said that he did not remember anything about it nor did he include any electric pole in his site plan. Assuming that this was faulty investigation by the investigating officer, it could hardly be a ground for rejection of the testimony of Prithvi which had a ring of truth in it. We may recount here the observation of this Court in Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] , SCC at p. 64, para 8, that:
“The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also, defective investigation by itself cannot be made a ground for acquitting the accused.”
19. The evidence of Sona (PW 32) to the effect that, he awoke because of barking of dogs and saw four persons running by and when he flashed the torch, he noticed three of the respondents and a fourth person whom he could not recognise, is also disbelieved by the High Court on the ground that the place where Sona was sleeping was not shown in the site plan. The High Court also attached importance to the fact that the investigating officer had not put the date on which the statement of this witness was taken, although the investigating officer explained that he had forgotten to mention the date. The High Court assumes that on the date of the incident itself, the police knew the names of the assailants; therefrom, it deduces that the fact that they were not arrested till 30-8-1993 makes the statement of the witness unreliable. This, to say the least, is another piece of perverse reasoning.
In the case of Raghuraj Singh and Ors. Vs State of U.P reported in 1996(20) ACR(R) 409 a Division Bench of this Court at Allahabad in paragraph no. 12 and 19 has held as under:-
12.the learned Counsel for the Appellants, pointed out to the defects of the prosecution and investigation done in the case. He submitted that the blood-stained earth was not sent for opinion of the Chemical Analyst which admittedly was taken by the I.O. Similarly, the blood-stained knife said to have been left at the place of occurrence was recovered by the I.O. It was neither sent for opinion by the Chemical Examiner nor the knife was shown to the witness P.W. 4 Dr. Vijal Pal Singh who had conducted the post-mortem examination. The guns of Raghunath Singh and Raghu Raj Singh, accused persons, were not seized during the investigation nor the empty cartridges recovered at the place of incident was sent to the Ballistic Expert to ascertain that the empty cartridges recovered were fired from the gun of the accused Raghuraj Singh and Raghunath Singh. He also pointed out that pair of shoes of the accused person, as stated by the witness, was not proved to be of the present Appellants or Raghunath Singh, co-accused deceased. It was necessary for the prosecution to have proved that the shoes recovered at the place belong to some of the accused persons which could have fixed clinchingly that a particular accused person was present at the time when the incident took place. He also submitted that no application was moved by the prosecution to ask any of the accused persons to wear the shoe to show that they belong to him.
19. The learned Counsel for the Appellants submitted that the investigation in this case was defective. The points of defect in the investigation are narrated in the earlier part of the judgment itself. He submitted that on account of the non-seizure of the guns of the accused persons, said to have been used in the commission of the offence, not getting the opinion of the Ballistic Expert in respect to the cartridges found at the spot which could have been obtained from the Ballistic Expert after getting the opinion about the guns of the accused persons had it been seized. The learned Counsel further submitted that the blood-stained earth recovered from the place of occurrence was not sent to the Serologist for his opinion that it was the human blood. The failure of the prosecution to adduce evidence and investigate on the aforementioned points, in our opinion, does not constitute any ground for disbelieving the eye-witnesses who are not simply eye-witnesses but also injured witnesses. Had the prosecution examined the blood-stained earth and proved it to be stained with human blood by the Serologist and getting an opinion from the Ballistic Expert to show that the empty cartridges recovered at the place were used and fired with guns of the accused persons, had the gun of the accused Appellants seized and recovered. Had the prosecution investigated the case and obtained Ballistic Expert opinion and opinion of the Serologist that the incident did take place at the place as set up by the prosecution. If that evidence would have been procured and adduced in the case, that would have further strengthened the prosecution case. In the absence of those evidence, the prosecution case is proved by other injured witnesses and the evidence of the Doctor who conducted the postmortem examination and he proved the injuries of the injured witnesses. Their presence have been proved at the place of incident at the relevant time. The omission of non-investigation of the case on the lines suggested would not sufficient to discard the prosecution evidence and the witnesses.
In the case of Naurangi Vs. State of U.P., reported in 1996 CrLJ 81, a Division Bench of this Court at Allahabad in para 7,8 and 16 has held as under:
7. We have heard the learned counsel for the appellant and the learned Additional Govt. Advocate and in our opinion, there is no force in this appeal. The motive of the murder has been clearly established by the prosecution. The prosecution witnesses have stated that the accused had encroached upon a piece of land which was in the possession of the complainant. The appellant had dug a foundation and were, on the date of the incident, putting layers of bricks therein. It is further stated by the prosecution witnesses that, on being asked to desist from such encroachment, the appellant fired at Pati Ram and his nephew Maharaj Singh. The investigating Officer, who visited the site, found that foundation had been dug at the place. The layers of bricks had been put in and some bricks were also lying on the site. It appears from the statements of the prosecution witnesses that the appellant did not relish this interference by Maharaj Singh and after fetching the gun from the house, he fired at Pati Ram who was coming towards the site on hearing the shouts of Maharaj Singh and also hit Maharaj Singh who, by then, had managed to get his father’s licensed gun and had come out in the open space.
8. So as far the actual incident is concerned the prosecution has examined four eye witnesses, namely, PW 1 Mani Ram, PW 5 Maharaj Singh, PW 6 Chob Singh and PW 7 Mohar Singh. All these witnesses made substantially consistent in regard to the incident and place of occurrence. According to PW 1 Mani Ram he was working at the ‘Rabat’ along with his brother Pati Ram deceased, on 14-10-1979 at about 12 noon when he heard the shouts of Maharaj Singh and other children. On hearing these shouts he along with Pati Ram rushed to the place from where the shouts were coming. When he reached the field of Madho Singh the appellant came with a gun and fired from the place where the Abadi of Suraj Pal, Chak road and field of Madho Singh meet and that Naurangi Lal fired twice hitting Pati Ram as a result of which he fell down. This statement is corroborated by PW 6 Chob Singh and PW 7 Mohar Singh. The Investigating Officer also found blood stains at that place where Pati Ram fell down. There appears to be no sufficient reason for doubting the statements made by these witnesses.
16 . We proceed to do so. We have already indicated above that the eye witnesses namely PW 1 Mani Ram PW 6 Chob Singh and PW 7 Mohar Singh have made substantially consistent statement in regard to the incident and place of occurrence. PW 5, Maharaj Singh is not an eye witness in respect of deceased Patiram and in this regard he has merely stated that he saw his dead body lying in the open field. The incident took place in an open field in broad day light at about 12 noon. The Investigating Officer found blood at the place where Patiram was shot. Merely because the blood stained earth was not sent for chemical examination, the prosecution version cannot be said to be doubtful (See Ramesh Chandra v. State, : 1992CriLJ3584 . The medical evidence, namely, the post mortem report of deceased Patiram and injury report of Maharaj Singh supports the prosecution version.
In the case of Surendra Paswan Vs. State of Jharkhand, reported in 2004(48) ACC 279, 290 SC, the Hon’ble Apex Court in para 4, 8 and 11 has observed as under:
4. In response, learned counsel for the State submitted, that three eye-witnesses specifically deposed regarding the place of occurrence, the manner of assault and gave detailed description of the entire scenario. The trial Court and the High Court have analysed their evidence and found to be credible, cogent and trustworthy. That being the position, there is no scope for interference in this appeal. Further, there was a confusion between bullet and pellet which has been clarified by the investigating officer. Merely because the bullet which was extracted by the doctor was not sent for chemical examination, it would not be a factor which would outweigh the testimonial worth of the eye-witnesses. The injuries have not been established by the accused to have been sustained in course of the incident as per the prosecution version. There was not even any suggestion about the defence version to any of the prosecution witnesses and for the first time while giving statement under Section 313 Cr.P.C. the plea has been taken.
8. So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the earth.
11. So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor’s evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court.
In the case of Sewak Vs. State of U.P. reported in 1995 ALJ 987 Allahabad, the Allahabad High Court has held in Para 8 and 11 as under:
8. It has been contended on behalf of the appellant that the rape was not Committed by the appellant on the prosecutrix but that it was one Hanif who was working in the Forest Department who had actually committed rape on the prosecutrix but in order to save himself and his service, he maneuvered to get involved the appellant for the commission of rape. It has also been urged on behalf of the appellant that the manner in which the rape is said to have been committed by the appellant appears much too improbable, inasmuch as the appellant would not succeed in accomplishing the act with one of his hands placed on the mouth of the prosecutrix. It was further contended that the medical evidence does not support the commission of rape on the prosecutrix and that the spots of semen found on the Petticoat and Dhotti of the prosecutrix were not sent for chemical examination. The learned counsel for the accused-appellant, therefore, strenuously contended that the prosecution has not succeeded in establishing its case against the appellant beyond reasonable doubt. Sentence of fine imposed on the appellant, was also said to be severe.
11. It has been further contended that the stains of semen which are said to have been found on the petticoat of the prosecutrix were not sent for chemical examination. The learned Additional Sessions Judge has rightly commented on this lapse of the investigating agency and has further rightly observed that this lapse of the investigating agency would not furnish the sole ground for rejecting the prosecution case. I agree with the learned Additional Sessions Judge on this score.
Therefore, there is no substance in the argument of learned counsel for appellant regarding non-availability of injuries on private part of victim and that she was habitual to sexual intercourse.
59. Learned counsel for the appellant has lastly argued that father of the appellant Ginnoo (Aagnoo Yadav) contested the election of Village Head and brother of PW-2 Raj Bahadur also contested this election and PW-2 Kanhaiya Lal is family member of the complainant, therefore, they are adducing evidence due to enmity of this election. It is relevant to mention here that no such statement has been made by the appellant in his statement recorded under Section 313 Cr.P.C. PW-1 has refuted the suggestion that PW-2 Kanhaiya Lal his uncle. No such suggestion has been given to PW-1 on behalf of appellant-accused that any member of the complainant contested the election of Village Head. On the other hand, it is suggested to PW-1 that there was dispute of “parnala”, I have made analysis of this suggestion on the proper place.
60. PW-2 witness Kanhaiya Lal has refuted the suggestion that he is family member of the complainant Munni Lal. He has only accepted this fact that he is of the same caste “Yadav”, as the complainant is. No suggestion was given to PW-2 that his brother Raj Bahadur had ever contested the election of Village Head.
61. PW-3 victim specifically stated that her father Munni Lal had not contested election of Village Head, although she has accepted that Raj Bahadur is brother of Kanhaiya Lal, who contested the election of Village Head, in which father of the appellant Ginnoo (Aagnoo Yadav) was contestant. She has refuted this suggestion that she has adduced evidence against the appellant as directed by Munni Lal son of Devi and Raj Bahadur. No such statement was made by the appellant in his statement recorded under Section 313 Cr.P.C. nor it was confronted to Investigating Officer PW-6. Appellant has also not applied for summoning another Investigating Officer S.O. Narendra Singh, even then PW-8 Constable Ram Shanker Yadav proved the Site Plan and charge-sheet (Ex. Ka-10 and 11) prepared by him.
62. PW-8 has stated in his examination-in-chief that he was posted in year 1997 at Police Station Sandila with S.I. Narendra Kumar. He has refuted the suggestion put forth on behalf of appellant that he was not posted with S.I. Narendra Singh. Therefore, suggestion given to victim PW-3 does not extend any benefit to the appellant, because no suggestion was given to PW-2 witness Kanhaiya Lal that his brother Raj Bahadur had contested election of Village Head against Ginnoo (Aagnoo Yadav) who is father of the appellant. This suggestion also not given to Investigating Officer PW-6 that accused-appellant was falsely implicated in this crime due to alleged enmity of election of Village Head and accused-appellant was involved in this crime by the complainant and victim on the direction of Munni Lal S/o Devi and Raj Bahadur. Therefore, there is no substance in the argument of the learned counsel for the appellant.
63. The appellant has not adduced any oral or documentary evidence regarding political rivalry on the basis of election of Village Head. Munni Lal son of Devi and Raj Bhadur are not the family members of the complainant. PW-2 Kanhaiya Lal is resident of village of the complainant. He has adduced evidence as eye witness of the incident, while he was returning back from the village Jagdishpur and reached near the place of occurrence. Therefore, he cannot be termed as “chance witness”.
64. Likewise PW-1 was irrigating his agricultural field near the place of occurrence. Both these persons PW-1 and PW-2 are the eye witnesses of the incident. No father will cast stigma or involve the reputation of his daughter and family on the basis of alleged political rivalry of Raj Bahadur with father of appellant. Therefore, there is no substance in the arguments of learned counsel for the appellant regarding alleged enmity.
65. As far as learned counsel for the appellant has argued that PW-1, PW-2 and PW-3 witnesses are in category of relative and interested witnesses, following case law is relevant on this point:
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v.State of Punjab [Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26)
“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”
“4. … It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence.”
26. In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] , a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13)
“13. … it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”
27. Again, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611] , the following observations were made by this Court: (SCC p. 501, para 7)
“7. … The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.”
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar[Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] , State of U.P. v.Jagdeo [State of U.P. v. Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] , Bhagaloo Lodh v. State of U.P.[Bhagaloo Lodh v. State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] , Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , Raju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184], Gangabhavani v. Rayapati Venkat Reddy[Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] and Jodhan v. State of M.P. [Jodhan v. State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275] )
50. The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12)
“12. … It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits.”
51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.
30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13)
“[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
21. We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recording of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eyewitness, since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants.
Hon’ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-
“16. …… The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected.”
66. The argument put forth by learned counsel for appellant that PW-1 is father of PW-3 and PW-2 is interested witness is not acceptable, because their evidence is reliable, credible and trustworthy and inspires confidence. The fact that PW-2 Kanaihya Lal was a chance witness and interested witness due to political rivalry is also to no avail, because presence of PW-2 is apparent on the place of occurrence on the basis of evidence adduced by him. The argument of learned counsel that any other independent witness was not examined on behalf of prosecution is not acceptable as PW-2 witness has proved this fact that owners of agricultural filed adjoining the place of occurrence were not working in their fields at the time of incident. Evidence of PW-1, PW-2 and PW-3 is reliable, trustworthy, credible, cogent and cannot be discarded. The Trial Court has relied upon evidence adduced by them and recorded findings in correct perspectives. These findings cannot be termed as “perverse” and against evidence available on record and law.
67. On the basis of above discussions and exposition of law, mentioned above, this appeal lacks merits and liable to be dismissed.
68. Appeal, accordingly, dismissed.
69. Inform the Trial Court along with copy of judgment for taking further action against appellant to undergo the sentence imposed against him. Record of Trial Court be sent back.
Order Date :- 20.12.2017