Bashir Ahmad Matoo & Anr. vs State Of Jk Through P/S Khanyar, … on 30 January, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR

Cr. Appeal No. 08/2014
MP No. 01/2017
Date of Order: 30th of January, 2018.

Bashir Ahmad Matoo Anr.
Vs.
State of JK through P/S Khanyar, Srinagar.

Coram:
Hon’ble Mr Justice M. K. Hanjura, Judge.

Appearance:

For the Petitioner(s): Mr Bilal Ahmad Khan, Advocate.
For the Respondent(s): Mr B. A. Dar, Sr. AAG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No

01. The broad features of the case, as carved out from the FIR and the other
material gathered during the course of the investigation of the case, are that, on
the 25th of May, 2003, the complainant lodged a complaint before the authorities
of police station Khanyar, stating therein that her minor daughter (Ms X), left
her home before a period of six days to offer prayers at the Shrine of Peer
Dastageer Sahib but did not return. The complainant tried to trace her
whereabouts. She did not succeed in her efforts. Later on, she came to know
that her daughter has been kidnapped by the accused No.1, namely, Bashir
Ahmad Matoo, with the connivance of his wife, namely, Dilshada (accused
No.2), who, by deceitful means, enticed/ kidnapped her with the intention to

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commit rape upon her person. On the basis of this information, an FIR bearing
No. 66 of the year 2003 was registered at Police Station, Khanyar, for the
commission of offences under Sections 363, 366A, 376 and 109 RPC and the
investigation ensued. On the completion of the investigation of the case, a
chargesheet, for the commission of offences under Section 363 and 376 RPC
and for the commission of offences under Section 366A and 109 RPC was laid
against the accused No.1 and 2 respectively in the Court of the learned Chief
Judicial Magistrate, Srinagar and the learned Chief Judicial Magistrate, Srinagar
by his order dated 14th of June, 2003 committed the case to the Court of learned
Principal District Sessions Judge, Srinagar. By his order of even date, the
learned Sessions Judge, transferred the case to the Court of learned Additional
Sessions Judge, Srinagar, for disposal under law. Thereafter, by order dated 21st
of June, 2003, of the Court of the learned Additional Sessions Judge, Srinagar,
the accused No.1, namely, Bashir Ahmad Matoo, was charged for the
commission of offences under Section 363, 366-A, 376 RPC and the accused
No.2, namely, Dilshada, was charged for the commission of offences under
Section 363, 366-A, 376 and 109 RPC. The accused denied the charge and
claimed to be tried. Accordingly, the prosecution was asked to produce the
evidence in support of its case. The prosecution examined as many as 10
witnesses to bring home the guilt of the accused. The prosecution evidence was
closed on 23rd of February, 2007 and the case was posted for recording the
statements of the accused under Section 342 Cr.P.C. These statements of the
accused were recorded on 19th of July, 2007. The accused, in these statements,
denied the occurrence and the case was posted for advancing arguments in
terms of
Section 273 Cr.P.C. On 27th of July, 2007, the Court directed that it
was not a case of no evidence and asked the accused to produce their evidence.
The accused examined two witnesses in defence and it was on 5th of May, 2008,
that the evidence in defence was closed and the case was posted for advancing

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arguments. On the culmination of the trial, in terms of the judgment dated 28th
of April, 2014, the learned trial Court held the accused No. 1 to be guilty of
offences punishable under Sections 376, 363, 109 RPC and the accused No.2
was found guilty of offences punishable under Sections 366-A, 363, 376, 109
RPC. Thereafter, on the 10th of May, 2014, the accused No. 1, namely, Bashir
Ahmad Matoo, was convicted and sentenced to undergo imprisonment for a
period of 10 years and a fine of Rs. 10,000/- under Section 376(1) RPC, in
default of the payment of fine, he was directed to undergo simple imprisonment
for six months. The accused was also sentenced to undergo imprisonment of 3
years and 6 months and a fine of Rs. 5,000/- for offences under Sections 363,
109 RPC. In default of the payment of fine, he was directed to undergo simple
imprisonment of two months. The accused No.2, namely, Dilshada, was
convicted and sentenced to undergo imprisonment of ten years under Sections
366(A) RPC and a fine of Rs. 10,000/- was also imposed upon her and, in
default of the payment of fine, she was directed to undergo further simple
imprisonment of six months. The accused was also sentenced to undergo
imprisonment of seven years under Section 363 RPC and a fine of Rs. 5,000/-
was also imposed upon her and, in default of the payment of fine, she was
directed to undergo simple imprisonment for a further period of two months.
Further, the accused No.2 was also sentenced to undergo imprisonment of 3
years 6 months under Sections 376, 109 RPC and a fine of Rs. 2,000/- and, in
default of the payment of fine, she was directed to undergo simple
imprisonment of one month. All these sentences, on both the convicts, were
directed to run concurrently.

02. The accused/appellants have assailed the judgment of conviction and
sentence in an appeal filed before this Court on the grounds, inter alia, that the
judgment in appeal is against the facts, law and the canons of justice. The

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learned trial Court has not applied its mind to the facts and circumstances of the
case. The learned trial Court, while recording the conviction, has failed to
appreciate the evidence on record. The witnesses of the prosecution have not
proved that the accused committed the offence, the commission of which has
been imputed to them. The judgment has been passed on surmises and
conjunctures. There is a huge delay in lodging the FIR and that, under the shade
of the facts and the circumstances of the case, a reasonable and prudent man
will not conclude that the crime, the commission of which has been attributed to
them, has been committed by them. The learned trial Court has failed to
appreciate the law and the facts involved in the case. In the premises, the
accused/ appellants have prayed that the judgment under appeal be set aside and
they be acquitted of the charges levelled against them.

03. Heard and considered.

04. Mr Bilal Ahmad Khan, the learned counsel for the accused, has
vehemently argued that there is a delay in lodging the FIR which cuts at the
very root of the FIR. The medical evidence negates the rape. The crime could
not have been committeed by the accused No.1 in the way it has been attributed
to him. The prosecution case is full of inconsistencies in material particulars. He
has further argued that the benefit of the entire range of these circumstances has
to be given to the accused, as a consequence of which, they have to be acquitted
of the charges levelled against them.

05. Per Contra, Mr B. A. Dar, the learned Senior Additional Advocate
General, appearing for the State, has argued that the prosecution has proved its
case beyond any shadow of doubt. The learned Senior Additional Advocate
General has also stated that it is a case of the rape of a minor girl and the
evidence on record proves that the accused No. 1 has indulged in this gruesome
and heinous crime, with the aid and assistance of the accused No.2, i.e. his wife.

Cr. Appeal No. 08/2014 Page 4 of 52

He has also argued that, in a case of rape, the delay in lodging the FIR is not
fatal to the prosecution case. He has contended that the conviction in a case of
rape can be sustained on the sole statement of the prosecutrix, provided it
inspires confidence in the mind of a reasonable and prudent man and that the
statement of the prosecutrix, here in this case, is credible, reliable and tenable in
the eyes of law. There is no reason to disbelieve her. The prosecution has
proved its case beyond any shadow of doubt. At the end, he has argued that the
accused deserve to be punished adequately in a case like the present one, where
a girl of a tender age has been ravished.

06. The Nitty-gritty of the matter is whether, while recording the judgment of
conviction and sentence, the prosecution evidence has been scanned, evaluated
and appreciated in the right perspective. The learned trial Court, as is clear from
the impugned judgment dated 28th of April, 2014, has, after taking into
consideration the entire evidence adduced by the prosecution, come to the
following conclusion:

“Considered the arguments and perused the record available
on the file. It is alleged by the prosecution that the prosecutrix a
minor child aged about 14/15 years, had gone to the Shrine of
Dastigir Sahib, where she met the accused No. 2 who out of the
deceit and allurement enticed her to accompany her and she was
accordingly taken to a place where she was kept for 6/7 days against
her will and consent and during this period she was raped by the
accused No. 1 and when the prosecutrix could not be recovered a
FIR was lodged by the complainant with the police and the police
along with complainant and other witnesses went to the house of the
accused from where the prosecutrix was recovered. The prosecutrix
was medically examined and the opinion given by the doctor was to
the effect that rape has been committed upon the prosecutrix. The
statement was made by the prosecutrix where she stated that she was
raped by the accused accordingly, the case was registered against
the accused and accused were found prima facie involved in the
commission of the offences and as per the prosecution all the
witnesses who have been examined by the prosecution have proved
the guilt of the accused beyond reasonable doubt so, the accused as

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such, are liable to be convicted. On the other hand, it has been
alleged by the defence that the prosecution has failed to prove the
guilt of the accused beyond reasonable doubt so the accused as
such, are entitled to be acquitted.

Some contentions have been raised by the counsel for the
accused. I will have them set out with a view to immediately scan
evidence and findings to examine how far defence has perforated the
prosecution case. The first contention raised by the defence is that
FIR has been lodged after the gap of 6/7 days. It has been contended
that the FIR has been lodged on 25.5.2003 whereas it has also been
alleged that the prosecutrix was found missing since last 6/7 days
and during this period of 6/7 days the FIR has been lodged, but the
FIR has been lodged after the period of 6/7 days and this delay has
not been explained by the prosecution and as per the defence, the
unexplained delay in lodging of the FIR is fatal for the prosecution,
but this contention of the defence is not sustainable because it has
been properly explained by the prosecution as to why the FIR was
not lodged on the date when the prosecutrix was found missing. It
has been stated by the complainant that when the prosecutrix was
found missing, she tried to make search for her. It has been stated by
PW5 that since the question of reputation of the family was involved
so as such, the FIR was lodged after the gap of some days. It has
been stated by PW1 that when she could not trace her in the houses
of their relatives then she met a child who told her that she can
locate her from the house of the accused and when she went to the
house of the accused, the accused No. 2 denied to have any
knowledge about the prosecutrix which forced her to lodge FIR.
After the FIR was lodged, the prosecutrix was recovered from the
illegal custody of the accused and as the delay has been properly
explained in lodging the FIR so, as such, no benefit can be derived
by the accused even if FIR has been lodged after the gap of 6/7 days.
Besides this, in rape cases, the families find it very difficult to lodge
FIR for the reason that the image and reputation of their families
may get tarnished. Delay in lodging FIR can be condoned because
more often than not parents feel apprehensive that in case the matter
is referred to the police, the reputation of the family will be
tarnished and the victim will be exposed to the glare of the society,
the family members of the victim often decide not to report the
matter to police, but in the present case delay in lodging the FIR has
been properly explained. Besides this it has been held by the
Hon’ble Supreme Court and the Hon’ble High Courts of the Country
in a number of cases that the delay in lodging FIR in rape cases is
not fatal and the delay in lodging the FIR in rape cases can be
condoned and no benefit can be derived by the accused so as to

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warrant his acquittal. My view is fortified by the law laid down in
cases cited as
State of Punjab v. Gurmit Singh 1996 (1) RCR
533(SC) wherein it has been held that in sexual offences, the delay in
lodging the FIR, can be due to a variety of reasons, particularly the
reluctance of the prosecutrix, or family members to approach the
police, and lodge complaint, about the incident, which concerns the
reputation and honour of the family and victim.

In State of Punjab v. Ramadev Singh 2004(1) Crimes 149
(SC), it has been held that delay in lodging FIR in rape cases is a
normal phenomena and no benefit can be derived by the accused. In
this regard reference may be fruitfully made to
Satyapal v. State of
Haryana, AIR 2009 SC 2190, wherein, the Supreme Court echoed
similar sentiments. Para 20 of the report is extracted hereunder:

“20. This Court can take judicial notice of the fact
that ordinarily the family of the victim would not intend to
get a stigma attached to the victim. Delay in lodging the
First Information Report in a case of this nature is a
normal phenomenon….. “family of victim in such cases is
initially reluctant to lodge an FIR, delay of two-three days
in lodging the FIR is not material and this delay does not
affect the case of the prosecution.”

Similarly in a case reported in 1996 Cri LJ 1728 : (1996 AIR
SCW 998)
State of Punjab v. Gurmit Singh, urged that a certain
delay in the lodging of the FIR in cases of rape, is natural and
understandable.

Second contention raised by the defence is that the story put
up by the prosecution is not only unbelievable but also unthinkable
because as per defence it is not possible that a man would rape a
minor girl in presence of his wife, as per defence, prosecutrix has
put up a false and fictitious story against the accused and as such,
the accused cannot be held guilty for committing rape upon the
minor girl. This contention of the defence is not sustainable because
it has been stated by the prosecutrix in clear and unequivocal terms
that when she was kidnapped by the accused No. 2 under the
allurement that she will have to meet a man who will get her
employed, she was told that she will have to surrender herself before
the accused No. 1 then only she will get employment. She stated that
when she stayed in the house of the accused, the accused committed
rape upon her person without her will and wish and she was raped
thrice by the accused No. 1 during that night. She has also stated
that accused No. 2 was also sleeping on the same bed. The statement
made by the prosecutrix is clear and unimpeachable and the
statement made by her inspires the confidence. The prosecutrix

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being a minor of immature understanding and age under allurement
was subjected to rape by the accused No. 1 with the aid, assistance
and connivance of the accused No. 2. The defence has failed to
prove that the prosecutrix had been tutored to make a false
statement against the accused so as to implicate the accused in a
false and frivolous case. The prosecutrix being a minor and not,
aware about the sex could not be expected to make a false allegation
against the accused which is likely to affect her career unless and
until same would have been true. As the prosecutrix was raped by
the accused, she has stated true facts so as such; the plea raised by
the defence that the prosecution story is unbelievable and
unthinkable is not sustainable and as such, cannot be accepted.

Yet one more contention raised by the defence is that the
prosecutrix is a major but not a minor. It has been alleged by the
defence that in case it is alleged by the prosecution that the
prosecutrix was a minor then the prosecution was required to prove
this fact through positive and cogent evidence. It has been contended
by the defence that as the prosecution has failed to prove that the
prosecutrix was a minor by medical examination or by school record
so, the prosecutrix as such, cannot be held minor, but she is to be
presumed a major. This contention of the defence is not sustainable
for the reasons that the prosecution has placed on record the photo
copy of the date of birth certificate of the prosecutrix. The certificate
has been attested by the Headmaster of the concerned school. The
perusal of the certificate reveals that the date of birth of the
prosecutrix has been recorded as 10.11.1988 and if the date of birth
of the prosecutrix is recorded as 10.11.1988 then on the date of
occurrence i.e. 25.5.2003 she was less than sixteen years of age and
if the prosecutrix was below 16 years of age as such, being a minor,
then the accused could not have taken her away from the lawful
custody of her guardian without the consent of her parents. Even if it
may be presumed that the prosecutrix accompanied the accused No.
2 out of her own free will and consent, but since she being a minor
her consent becomes immaterial. Even if it has been alleged by the
defence that the prosecutrix has joined the PW2 on her own and has
stayed with her out of her own free will and consent but she being a
minor and taking her away from the lawful custody of her guardian,
is an offence and if she has been taken away from the lawful
guardianship of her guardian, the accused as such, have committed
the offence of kidnapping and rape so this contention raised by the
defence that since prosecution has failed to determine the age of the
prosecutrix so accused are entitled to be acquitted is not sustainable.

One more contention raised by defence is that the prosecution
witnesses especially the PW1 and the prosecutrix i.e. the PW2 have

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made contradictions in their statements. It has been contended that
as the contradictions made by them go to the root of the prosecution
case so the accused as such, are entitled to be acquitted. It has been
contended by the defence that it has been stated by the prosecutrix
that she sought permission of her mother and left for the Shrine of
Dastigir Sahib whereas, it has been stated by the PW1 that when
prosecutrix left the home she had gone to attend her duty and was
not present at home. If this plea raised by the defence is taken to be
true still no benefit can be derived by the accused from such a
inconsequential abrasion and discrepancy. This fact whether the
prosecutrix took the permission of her mother before leaving her
home or left the home behind the back of her mother without seeking
her permission will not absolve the accused from the criminal
liability. The matter of fact is that the prosecutrix was allured by the
accused No. 2 to accompany her under the pretext that she will be
given employment so this fact as to whether the prosecutrix left the
home with the permission or consent of her mother or left the home
without the permission of her mother does not weaken the case of the
prosecution and no benefit can be derived by the accused from these
small discrepancies and abrasions. The prosecutrix being a minor,
aged about 15 years so the accused had no right whatsoever to
allure her and force her to accompany her under the pretext that she
will be granted employment. The act of the accused No. 2 in alluring
and enticing her to accompany her and later forcing her to have an
intercourse with the accused No. 1 under the pretext that she will be
granted employment is an illegal and unlawful for which accused
are guilty for the commission of offences under sec 363, 366 A and
376 RPC.

The next contention raised by the defence is that the
prosecution has only examined the interested and partisan witnesses.
It has been contended by the defence that there was animosity
between the complainant and the accused and in order to implicate
the accused in a false and frivolous case, police has concocted a
false case in connivance with the complainant against the accused
and it has been contended by the defence that prosecution has only
examined close relatives of the complainant so accused are entitled
to be acquitted but this contention raised by the defence is not based
on facts because the prosecution has examined all the witnesses who
are the eye witnesses to the occurrence. The prosecutrix has been
recovered in presence of her mother PW 1 and PW5, Ghulam Qadir.
It has been stated by the I.O in his statement that after FIR was
lodged he along with the complainant PW1 and PW5 Ghulam Qadir
went to the house of the accused and in their presence the
prosecutrix was recovered from the illegal custody of the accused.

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Since the prosecutrix was recovered in presence of PWs 1 and 5 so
both the witnesses i.e. PW1 and PW5 being eye witnesses have
stated that the prosecutrix was recovered from the illegal custody of
the accused, so as such, it cannot lie in the mouth of the defence to
allege that the prosecution has examined only interested and
partisan Witnesses. Since the prosecutrix was recovered from the
illegal custody of the accused in presence of the PW1 and 5 and as
both the witnesses have stated that she was recovered in their
presence and recovery memo was prepared and the contents of the
recovery memo have been proved by both the witnesses so as such,
the plea raised by the defence that the prosecution has examined
only the interested witnesses is not sustainable. Furthermore it has
been contended by the defence that the prosecution has failed to
examine any independent witness or cite any independent witness,
the non-examination of the independent witnesses creates the doubt
in the case of the prosecution, the benefit of which must go to the
accused, as such, the accused are entitled to be acquitted. Whereas,
on the other hand, it has been contended by the prosecution, that the
prosecution has examined all the material witnesses who are eye
witnesses to the occurrence. Since defence has failed to show that
there was any animosity between the complainant and the accused
so the statement made by the witnesses cannot be discarded merely
on the ground that the witnesses are related to each other or the
witnesses are close relatives of the prosecutrix. It has been alleged
by the prosecution that no parent can be expected to tarnish the
image of her minor daughter and allege that rape has been
committed unless and until same is correct. It has been submitted by
the Ld. APP that the matter of fact is that accused committed rape
upon the minor girl and the prosecution has been able to examine
the witnesses who have come forward to make depositions. The
complainant and the other witnesses being natural witnesses who
were present at the time prosecutrix was recovered are acquainted
with the facts of the case and as such have been examined by the
prosecution and all these witnesses have deposed against the
accused and have clearly stated that the accused no 1 has committed
rape upon the prosecutrix so the accused, as such, guilt of the
accused has been proved and as such are liable to be convicted.
Moreso, when the prosecution version of the story finds support
from the medical evidence. The medical evidence is unblemished and
quite clear and the medical evidence implicates the accused for the
commission of the offence, the medical evidence clearly shows and
establishes that the prosecutrix has been subjected to rape. The
prosecutrix was examined medically after the occurrence and the
Doctor who examined her has given the clear opinion that the rape
has been committed upon the person of the prosecutrix so evidence

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is taken together leads to the irresistible conclusion that the accused
has committed the rape upon the person of the prosecutrix, as such,
accused are liable to be convicted.

As far as this contention of the defence that a false case has
been concocted against the accused is concerned, same appears to
be not-sustainable for the reason that prosecution has examined only
those witnesses who have come forward before the prosecution and
made deposition about the occurrence. The prosecution could not
have compelled the witnesses to come forward and make statements
and if the witnesses who are forthcoming are interested and partisan
witnesses, it cannot be said that the case of the prosecution is liable
to fail because it has examined interested and partisan witnesses as
alleged by the defence.

I hardly find any merit in the submission made by the defence
that the witnesses being partisan and interested so their statements
cannot be believed because all the witnesses who have been
examined by the prosecution are the natural witnesses, their
presence is established by the fact that they were present at or near
the spot of occurrence because after the prosecutrix was kidnapped,
FIR was lodged and police recovered the prosecutrix in presence of
witnesses from the house of the accused so all the witnesses such as
Pws 1, 5 and I.O. are the natural witnesses and if they have been
examined by the prosecution and if they have implicated the accused
for commission of offences it cannot be said they are interested
witnesses or partisan witnesses so as to discard their testimonies. If
the prosecution has examined these witnesses to prove its case it
cannot be said that they are the interested and partisan witnesses
and so, as such, their evidence cannot be accepted. As far as this
contention of the defence is concerned, same is not sustainable for
the reason that the prosecution has examined only those witnesses
who have come forward before the prosecution and made
depositions about the occurrence. The prosecution could not have
compelled the witnesses to make statements if the witnesses were not
forthcoming or not interested in coming forward to make the
statements regarding the occurrence.

A witness who is natural one and is the only possible eye
witness in the circumstance of the case cannot be said to be
interested. When the occurrence takes place in front of a house of a
particular person then he becomes a natural witness of it. Similarly
if a murder is committed in a dwelling house the inmates of the
house are natural witnesses. If murder is committed in a brothel, the
prostitutes and paramours are natural witnesses. There evidence
cannot be brushed aside or viewed in suspicion on the ground that

Cr. Appeal No. 08/2014 Page 11 of 52
they are here chance witnesses. Similarly the occurrence has taken
place inside a house so the inmates and neighbours are all natural
witnesses and their evidence cannot be discarded. To support my
view support can be had from AIR 1983 SC 680.

Learned counsel for the accused has not been able to point
out any material from the statements of the witnesses, by reason of
which it could be said that they have made any false statement so
their evidence may be liable to be rejected. The submission that the
witnesses are partisan and interested, therefore, they cannot be
relied upon, cannot be accepted as a fixed formula or an inflexible
principle .of_ appreciation of evidence. Normally, as in this case
such witnesses are very natural witnesses to be found present on the
spot. They are competent to depose about the incident; Until and
unless there is any cogent material on record which suggests that the
witnesses made a false statement so as to implicate the accused ‘ in a
false and frivolous case, their evidence cannot be discarded merely
because they have deposed against the accused.

It is not easy to secure statement of independent persons in
the sense that they may not be connected with any party. Whosoever,
may come forward to depose may be aligned to one or the other
faction. No good reason has been given by the defence. A witness
who is natural one and is the only possible eye witness in the
circumstance of the case cannot be said to be interested. Therefore
the contention of the defence can not be accepted and the evidence
of prosecution witnesses who are natural witnesses and their
presence has been established by the fact that they reside in and
around the place of occurrence cannot be discarded. Besides this, it
is well settled law that evidence of a witness cannot be discarded
merely on the ground that he is either partisan or interested witness
or both, if otherwise same is found credible. Reference in this
connection can be made to AIR 1952 SC 54, AIR 1953 SC 364, AIR
1957 SC 614, AIR 1965 SC 202, AIR 1973 SC 2407, AIR 1974 SC
276, AIR 2002 SC 1468 and AIR 2002 SC 2775.

Furthermore, the contention raised by the defence that
statement made by prosecutrix is not supported or corroborated any
other witness so accused are entitled to be acquitted is not
sustainable because the allegation against the accused is that the
accused No. 1 committed rape upon the person of the prosecutrix
with the aid and assistance of the accused No. 2 and this fact as to
how she was kidnapped, lured by the accused No. 2 and raped by the
accused No. 1 has been stated and explained by the prosecutrix.
Prosecutrix is the only eye witness to the act of rape and kidnapping
and this fact that she was kidnapped under the allurement by the

Cr. Appeal No. 08/2014 Page 12 of 52
accused No. 2 and raped by the accused No. 1 with the aid and
assistance of the accused No. 2 has been established by the
prosecution through the evidence of prosecutrix and by the
corroborative evidence of other witnesses. The rape has taken place
behind the closed doors there is no other eye witness other than the
prosecutrix herself and if prosecutrix has herself stated that she was
raped by the accused so as such, the statement made by the
prosecutrix is to be accepted and believed. Ordinarily there is no
need to seek corroboration of the statement made by prosecutrix. It
is an admitted position of law that in rape cases conviction can be
made on the basis of uncorroborated statement made by prosecutrix.
In this regard, I may refer to some of the decisions passed by Apex
Court.
In State of Punjab v. Gurmit Singh Ors. (1996) 2 SCC
384 the Supreme Court laid down that normally no self respecting
woman would come forward to make false allegation of rape.
Relevant portion of the report is extracted hereunder:

“8….The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just to
make a humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement of
the prosecutrix should not, unless the discrepancies are
such which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on the
testimony of a victim of sexual assault alone to convict an
accused where her testimony inspires confidence and is
found to be reliable…”

Whether corroboration is essential in rape cases before
convicting an accused person?

The problem was considered by Hon’ble Supreme Court
earlier in the year 1951 in Rameshwar Kalyan Singh V. State of
Rajasthan, AIR 1952 SC 54 : (1952 Cri LJ 547) and taking into
considerations both
Sections 133 and 114(b) of Indian Evidence Act,
answered the question in the following manner at page 550 of Cri
LJ:-

Cr. Appeal No. 08/2014 Page 13 of 52

“The rule, which according to the cases has
hardened into one of law, is not that corroboration is
essential before there can be a conviction but that the
necessity of corroboration, as a matter of prudence, except
where the circumstances make it safe to dispense with it,
must be present to the mind of the judge, and before a
conviction without corroboration can be sustained. The
tender years of the child which is the victim of a sexual
offence, coupled with other circumstances appearing in the
case such, for example, as its demeanour, unlikelihood of
tutoring and so forth, may render corroboration
unnecessary but that is a question of fact in every case. The
only rule of law is that this rule of prudence must be
present to the mind of the judge or the jury as the case may
be and be understood and appreciated by him or by them.
There is no rule or practice that there must….”

Hon’ble Supreme Court in cases cited as Ram Murti v. State
of Haryana, AIR 1970 SC 1020 : (1970 Cri LJ 991) and in
Gurucharan Singh v. State of Haryana, AIR 1972 SC 2661 : (1973
Cri LJ 179), AIR 1976 SC 1774: (1976 Cri LJ 1376) held :- Rafiqu
v. State of U.P., AIR 1981 SC 559 : (1980 Cri LL 1344) and in
Sheikh Zakir v. State of Bihar, AIR 1983 SC 911: (1983 Cri LL
1285) has observed in the following manner that :

“Even though a victim of rape cannot be treated as
an accomplice, the evidence of the victim in a rape case is
to be treated almost like the evidence of an accomplice
requiring corroboration. Hence there must be an indication
in the course of the judgment that the judge had this rule in
his mind when he prepared the judgment and if in a given
case the judge finds that there is no need for such
corroboration he should give reasons for dispensing with
the necessity for such corroboration. But if a conviction is
based on the evidence of a prosecutrix without any
corroboration it will not be illegal on that sole ground.”

The Hon’ble Supreme Court in State of Maharashtra v.

Chandra Prakash Kewal Chand Jain, AIR 1990 SC 658 : (1990 Cri
LJ 889) held that the
Evidence Act nowhere says that her evidence
cannot be accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under
Section 118 of
Evidence Act and her evidence must receive the same weight as is
attached to an injured in cases of physical violence. On
corroboration it was further stated that:-

“To insist on corroboration except in the rarest of
rare cases is to equate a woman who is a victim of the lust

Cr. Appeal No. 08/2014 Page 14 of 52
of another with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell a
woman that her story of woe will not be believed unless it is
corroborated in material particulars as the case of an
accomplice to a crime”.

The law laid down in the above-noted cases has been further
approved by the Hon’ble Supreme Court in the cases such as
Karnel
Singh v. State of M.P., AIR 1995 SC 2472 : 1995 Cri LJ 4173.
State
of Punjab v. Gurmit Singh AIR 1996 SC 1393 : 1996 Cri LJ 1728, by
observing that, corroboration of the testimony of prosecutrix in rape
case is not required as a rule of law but, however, it may be required
as a matter of prudence and this rule of prudence has now almost
hardened into rule of law and that the rule of prudence which has
been hardened into rule of law is that the rule as to corroboration
must be present in the mind of Judge and must have been
incorporated in the judgment.

Furthermore it is to be borne in mind that while examining a
case like the present one, where a minor girl of about 14/15 years
has been kidnapped and subjected to rape, it becomes the bounden
duty of the Court to carefully weigh end evaluate the evidence. The
court cannot loose sight of the fact that in the society in which we
live, no woman would come forward generally speaking, to make a
humiliating statement against her honour of being raped unless it
was true. The nature and extent of the corroborative evidence that is
required varies according to the circumstances of the case. The
corroboration which is required is with regard to the crucial parts
of her testimony which, if proved, would establish the guilt of an
accused. Law does not require corroboration (Sec. 138
Evidence
Act) and, therefore, if the statement of the prosecutrix inspires
confidence and is believed, there is no bar to convict accused on her
sole testimony even. It will also be relevant to point out here that the
statement made by the prosecutrix immediately after the occurrence
is legally admissible and relevant as evidence of conduct under Sec.
8 of the
Evidence Act. It is also admissible as corroboration of the
evidence of the prosecutrix in the Court under
section 157 of the
Evidence Act, The court cannot loose sight of the fact that the crimes
of violence upon women are on the increase and therefore, supposed
contradictions which have no material effect on the veracity ‘of the
prosecution case or even discrepancies in the statements of the
witnesses, should not, unless the discrepancies are such which are of
a fatal nature, be allowed to throw-out an otherwise reliable
prosecution version.

Cr. Appeal No. 08/2014 Page 15 of 52

As regards the argument that the prosecutrix does not support
the prosecution case, it needs to be mentioned that the accused have
targeted a minor simpleton girl and while making it misuse of her
immaturity and lack of understanding, took her away after offering
her opportunity of Govt. job, kept her throughout the night and
thereafter in her house and allowed accused no 1 to commit rape
upon her. It is not a case of girl over 16 years of age where the
question of consent normally remains debatable. But in this case the
consent of the prosecutrix is immaterial and as such when there is
sufficient medical evidence with regard to commission of the crime
and the girl has been recovered from the possession of the accused,
then the accused have to explain as to who else had kidnapped her
and committed the offence of rape upon her. It is to be borne in mind
that no corroboration is required in the case of minor girls, less than
16 years of age, if the testimony of the prosecutrix, inspires
confidence of the court when her evidence is evaluated. Actually,
this principle of law has been enshrined by the Apex Court for the
reason that the victim of rape would not implicate a person of such
heinous crime falsely by sacrificing her own repute and that of the
repute of the family. The Apex Court in case
State of Punjab vs.
Gurmit Singh and others (1996) 2 SCC 384, observed that sexual
violence operate from being de-humanizing act, is an unlawful
intrusion in the right of privacy and sanctity of the family. It is a
serious blow to her supreme honour and often destroys her self-
esteem, dignity and degrades and humiliates the victim and where
the victim is helpless, innocent minor child, it leaves behind a
traumatic experience. A rapist not only causes the physical injuries
but more in deliberate leaves a scar on the most cherished
possession of a woman i.e. her dignity, honour, reputation and not
the less her chastity. The rape is not only a crime against the person
of a woman, but it is a crime against the entire society.

The law is well settled that the prosecutrix is not an
accomplice and as such is not under any disability to make a
deposition. If her testimony inspires confidence, then she alone,
without corroboration, can be relied upon. Reference, in this regard
can be made to the judgment delivered in case
Suresh Chand vs.
State of Haryana 1976 Cr. LJ 452. In order to discard the testimony
of the prosecutrix, the defence should spell out a motive which could
prompt some one on the side of the prosecution to persuade a
witness to make a statement against the accused.

In Bharvada Bhoginbhai Hirjibhai v. State of Gujarat AIR
1983 SC 753 : 1983 Cri LJ 1096, the Supreme Court observed thus
(at page 756) of AIR:

Cr. Appeal No. 08/2014 Page 16 of 52

“Corroboration is not the sine qua non for a
conviction in a rape case. 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 lences tinged with
doubt, disbelieve or suspicion? To do so is to justify the
charge of male chauvinism in a male dominated society.”

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. 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. She would face
the risk of losing the love and respect of her own husband
and near relatives, and of her matrimonial home and
happiness being shattered. If she is unmarried, she would
apprehend that it would be difficult to secure an alliance
with a suitable match from a respectable or an acceptable
family. In view of these and similar factors the victims and
their relatives are not too keen to bring the culprit to book.
And when in the face of these factors the crime is brought
to light there is a built-in assurance that the charge is
genuine rather than fabricated. “

From the above quoted observations of the Supreme Court it
is clear that the law does not require corroboration and, therefore, if
the evidence of the prosecutrix is believed, there is no bar to convict
the accused on her testimony alone.

In Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952
SC 54 : 1952 Cri LJ 547, is a case where accused Rameshwar was
charged with committing rape on a young girl of eight years of age.
In that case while dealing with the issue whether the conviction of an
accused in a rape case become illegal merely because it is based on
the uncorroborated testimony of the prosecutrix, the Supreme Court
held thus (at page 57) of AIR:

“………. The rule, which according to the cases has
hardened into one of law, is not that corroboration is essential
before there can be a conviction but that the necessity of
corroboration, as a matter of prudence, except where the
circumstances make it safe to dispense with it must be present to
the mind of the judge, and injury cases must find place in the
charge, before a conviction without corroboration can be
sustained. The tender years of the child, coupled with other

Cr. Appeal No. 08/2014 Page 17 of 52
circumstances appearing in the case, such, for example, as its
demeanour, unlikelihood of tutoring and so forth, many render
corroboration necessary but that is a question of fact in every case.
The only rule of law is that this rule of prudence must be present to
the mind of the judge or the jury as the case may be and be
understood and appreciated by him or them. There is no rule of
practice that there must, in every case, be corroboration before a
conviction can be allowed to stand.”

In Shaikh Zakir v. State of Bihar, AIR 1983 SC 911: 1983 Cri
LJ 1285, the Supreme Court held that if a conviction is based on the
evidence of a prosecutrix without any corroboration it will not be
illegal on that sole ground.

Now adverting back to the facts of case in hand in light of the
discussion made hereinabove it has been stated by prosecutrix that
under allurement she was kidnapped by accused no 2 to her house
where she was raped by accused no 1 during the night and after FIR
was lodged she was recovered from the illegal custody of the
accused. If her statement needs any corroboration that
corroboration is supplied by the statements made by the PWs 1 and
5 and the I.O. of the case, because the prosecutrix was recovered by
the I.O. in presence of PWs 1 and 5 and all the witnesses who have
witnessed recovery have stated that the prosecutrix a minor was
recovered from the illegal custody of the accused, so as such, the
guilt of the accused has been proved and the plea or the contention
raised by the defence that the prosecutrix has not supported the case
of prosecution or the contention that there is no corroboration from
other witnesses pales into insignificance as such cannot be accepted.

Yet one more contention raised by the defence is that no
marks of injuries/ bruises have been found on the private parts of the
prosecutrix, the doctor during her examination has not stated that
the prosecutrix was subjected to any rape. This contention of the
defence is not sustainable because as per the statement made by the
prosecutrix, she has stated that she was raped by the accused on the
first day of her kidnapping and after her recovery she was examined
by the concerned doctor after the gap of 5/6 days. It has been stated
by prosecutrix that she was asked by the accused No. 2 to surrender
herself before accused no 1, then only she will get employment so it
can be inferred that the prosecutrix being a minor was given a
promise that she would be provided employment only if she
surrendered herself before the accused No. 1 as such she did not put
any resistance and when she did not put any resistance so no marks
of violence or bruises could have been sustained by her on her
private parts and therefore no marks of violence could be located or

Cr. Appeal No. 08/2014 Page 18 of 52
observed on her private parts by the doctor who examined her.
Besides this, it is admitted position of law that absence of any
bruises and marks of violence on the private parts of the prosecutrix
will not lead to the presumption that rape has not been committed.
But in the present case the prosecutrix being a minor and even if her
consent was obtained by the accused and even if the prosecutrix was
the consenting party still her consent is immaterial and, as such, the
accused cannot be absolved from guilt on the ground that the
prosecutrix was the consenting party because no marks of violence
were found on her private parts by the doctor who examined her.
Since it has been found by the doctor that hymen of the prosecutrix
ruptured and intercourse has taken place 48 hours earlier and this
fact has been corroborated by the statement made by the prosecutrix
herself where she has stated that she was raped by the accused
against her wish and consent so as such, the guilt of accused is
proved inspite of the fact that torn hymen was not accompanied by
injuries or bruises on private parts.

Moreso, the fact that the doctor noticed that the hymen was
found torn corroborates that sexual intercourse was committed on
the prosecutrix. It is true that the doctor did not notice any external
injury and also did not make any mention about the presence of
bruises or injuries on her private parts but it is important to note
that in this case, the prosecutrix did not allege any violent act of
forced sexual intercourse. Thus, the absence of any external injury
in such circumstances would not negate the allegations of sexual
intercourse with the prosecutrix against her consent, particularly
when she was medically examined few days after the incident.
Besides this the absence of visible marks of injuries on the person of
the prosecutrix will not necessarily mean that she had not suffered
any injuries or she had offered no resistance or she was a
consenting party. Absence of injuries on the person of the
prosecutrix is not necessarily an evidence of falsity of the allegation.
My View is fortified by the law laid down in judgments passed by
Apex Court in cases cited here under,
In State of Rajasthan v. N.K., (2000) 5 SCC 30, the Supreme
Court held as under:

“18……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 falsity of the allegation or an evidence of consent

Cr. Appeal No. 08/2014 Page 19 of 52
on the part of the prosecutrix. It will all depend on the facts
and circumstance of each case.

In Sk. Zakir [Sk. Zakir v. State of Bihar (1983) 4 SCC 10 :

1983 SCC (Cri) 76 : 1983 Cri LJ 1285], it was observed by the apex
Court that absence of any injuries on the person of the prosecutrix,
who was the helpless victim of rape, belonging to a backward
community, living in a remote area not knowing the need of rushing
to a doctor after the occurrence of the incident, was held not enough
for discrediting the statement of the prosecutrix if the other evidence
was believable.

In Balwant Singh [Balwant Singh v. State of Punjab, (1987) 2
SCC 27 : 1987 SCC (Cri) 249 : 1987 Cri LJ 971] Apex Court held
that every resistance need not necessarily be accompanied by some
injury in the body of the victim; the prosecutrix being a girl of 19/20
years of age was not in the facts and circumstance of the case
expected to offer such resistance as would cause injuries to her
body.

In Karnal Singh [Karnal Singh v. State of M.P., (1995) 5 SCC
518 : 1995 SCC (Cri) 977], it was observed by the Apex Court that
absence of marks of external injures on the person of the prosecutrix
cannot be adopted as a formula for inferring consent on the part of
the prosecutrix and holding that she was a willing party to the act of
sexual intercourse…..”

Thus, the absence of any external injury in the circumstances
of the case would not belie the case of the prosecution. Moreover,
the age of the prosecutrix was just about 15 years. Even if it
assumed that there was consent on the part of the prosecutrix for the
sexual act committed by the accused, the consent was immaterial as
the prosecutrix was incapable of giving any consent or even
understanding the act committed by the accused. As per the case of
the prosecution because of deceit, promise held out by accused, the
prosecutrix did not offer any resistance. Otherwise, also a girl of 15
years can hardly offer any resistance to a fully grown mail, so this
plea raised by the defence that absence of any bruises or marks of
violence on the private parts of the prosecutrix will absolve the
accused from the criminal liability is not sustainable and as such,
cannot be accepted.

Having analyzed and repelled contentions raised by the
counsel for the accused, it is imperative now to scan the evidence so
as to find out whether the prosecution has been able to establish the
guilt of the accused beyond any reasonable doubt. But therefore
touching the merits of the case, it must be stated here, as to what

Cr. Appeal No. 08/2014 Page 20 of 52
approach, the court should adopt, while evaluating the prosecution
evidence, particularly the evidence of the prosecutrix, in sex related
offence. It is essential that the evidence of the prosecutrix should be
corroborated in material particulars, before the court basis a
conviction on her testimony? Does the rule of prudence demand that
in all cases, save the rarest of rare, the court should look for
corroboration before acting on the evidence of the prosecution? Let
me see, if the
Evidence Act, provides the clue to the riddle. Under
the Evidence Act, evidence means and includes all statements which
the court permits or requires to be made before it, by the witnesses,
in relation to the matters of fact, under inquiry. Under
Section 59 of
the Evidence Act, all facts, except the contents of the documents,
may be proved by oral evidence.
Section 118 then illustrates, as to
who may give oral evidence. According to that Section, all persons
are competent to testify, unless the court considers that they are
prevented from understanding the questions, put to them, or from
giving rational answers, to those questions, by tender years, extreme
old age, disease, whether of body or mind, or any other cause of the
same kind. Even in the case of an accomplice,
section 133 provides
that he/she shall be a competent witness, against an accused person,
and the conviction is not illegal, merely because it proceeds upon
the uncorroborated testimony of an accomplice. There is no
requirement in law that corroboration can only be by plurality of
evidence for what would be rendering naught the provisions of
section 134 of the Indian Evidence Act which render conviction on
the testimony of a single witness permissible. A bear reference of
Section 134 of the Indian Evidence Act, 1872 ( in short ‘the Evidence
Act) would suffice. The provision clearly states that no particular
number of witnesses is required to establish the case. Conviction can
be based on the testimony of single witness if he is wholly reliable.
Corroboration may be necessary when he is only partially reliable.
If the evidence is unblemished and beyond all possible criticism and
the Court is satisfied that the witnesses was speaking the truth then
on his evidence alone conviction can be maintained. This is a factor
which has be weighed along with the other materials to see whether
the prosecution reliable, cogent and trustworthy. It is not the law
that all the witnesses cited by the prosecution as direct witnesses
need be examined. The prosecution must unfold the full narration of
the material particulars of its case. It is not the quantity but quality
of the evidence that is needed. It is settled law that even the evidence
of a single witness, if truthful and found acceptable, would form
basis to convict the accused without corroboration which is not a
Rule but an added assurance. The witness must be reliable to inspire
confidence for acceptance of his evidence. It is, therefore, not

Cr. Appeal No. 08/2014 Page 21 of 52
necessary to examine all the other witnesses unless the prosecution
so chooses.

Furthermore, in Gurbachan Singh v. Sat Pal it has been held
by the Apex Court that simply that degree of doubt, which could
permit a reasonable and just man to come to a conclusion.
Reasonableness of doubt must be commensurate with the nature of
offence, to be investigated. Exaggerated devotion to the rule of
benefit of doubt, must not nurture fanciful doubts, and lingering
suspicions, and thereby destroy social defence. Justice cannot be
made sterile, on the plea, that it is better to let hundred guilty
escapes than punish an innocent. Letting guilty escape, is not doing
justice, according to law.

In State of Uttar Pradesh V. Anil Singh, the principle of law,
laid down, was to the effect, that it is necessary to remember that a
judge does not preside over a criminal trial, merely to see, that no
innocent man is punished. A judge also presides to see that guilty
man does not escape. One is as important, as the other. Both are
public duties, which the Judges has to perform.

The criminal trial means testing the evidence of the witnesses
and finding out whether it inspires any confidence in the mind of the
court or not. The credibility of the witness therefore, is always a
matter of confidence that it inspires regarding its intrinsic,
genuineness and truthfulness of its overall dependability beyond any
manner of doubt and this doubtless dependability of the witness in
turn depends upon the answers to the questions like (1) Is the
prosecution story probable ? (2) Does it suffer from any patent
infirmities like animosity between the parties? (3) Does it suffer from
any vital contradiction which cuts at the very root of the prosecution
case and (4) whether reading the evidence of the prosecution witness
as a whole; does it inspire the confidence of the Court?

As far as the first essential ingredient regarding probability is
concerned, the prosecution story is that the prosecutrix had gone to
the Shrine of Dastigir Sahib and did not return back to home for
about 5/6 days. After the FIR was lodged, she was recovered from
the house of the accused. The prosecutrix was medically examined.
Statement of the witnesses including prosecutrix were recorded,
prosecutrix has stated that she was lured by the accused No. 2 to her
house on the pretext that she will provided employment provided she
surrenders herself before a man who will get her employed, so she
was kept in illegal custody for about 5/6 days by the accused in their
house. She has further stated that she was told that in case she wants
employment then she should not raise any hue and cry so she acted

Cr. Appeal No. 08/2014 Page 22 of 52
and behaved accordingly, resultantly she was raped by accused no 1
with the active aid and assistance of accused no 2. After she was
recovered, it was stated by the prosecutrix that she was raped by the
accused No. 1 with the aid and assistance of the accused No. 2. She
was medically examined by the doctor. The prosecutrix was
recovered from the illegal custody of the accused in presence of the
witnesses and all the witnesses in whose presence she was recovered
have stated in clear and unequivocal terms that prosecutrix was
recovered from the illegal custody of the accused and after she was
medically examined it was revealed by the medical examination that
her hymen was ruptured and she was subjected to intercourse so this
part of the prosecution story is quit believable.

As far as the second essential ingredient is concerned, the
case of the prosecution does not suffer from any patent infirmity as
no animosity or enmity has been proved between the parties. The
defence has failed to prove that the witnesses had any reason to
falsely implicate the accused. Whether the prosecution witnesses
have any ulterior motive to falsely implicate the accused person is
indeed always difficult to find out, as such motives are never writ
large on the face of witnesses so as to be easily marked. In fact, such
motives lie deep down in the inner-most layers and the recesses of
the heart of the witnesses where no one has any access but in order
to prove that there was any animosity on the basis of which the
witnesses implicated the accused or there was any mala-fide
intention on the part of the witnesses to implicate the accused the
defence must prove beyond any doubt such intentions or state of
mind of the witnesses but in absence of such proof no weight can be
given to such kind of contentions raised by the defence. The defence
has failed to prove that there was any mala-fide intention on the part
of the witnesses to implicate the accused. There is no material on the
file which suggests that there was any animosity between the parties
and the parties were involved in any dispute prior to the occurrence.
In absence of such proof and material suggestive of the fact that the
parties were hostile towards each other, such a contention alleging
that the witnesses have falsely implicated the accused in a false and
frivolous case on the basis of animosity is not sustainable.

As far as the third essential ingredient is concerned, there
may be some minor contradictions in the statements made by the
witnesses, but these contradictions do not cut the very root of the
prosecution case, so as such, no importance can be given to such
minor contradictions. When the statements made by the prosecution
witnesses are put under microscopic, all the material witnesses have
stated that prosecutrix was recovered from the illegal custody of the
accused and it has been stated by the prosecutrix as to how she was

Cr. Appeal No. 08/2014 Page 23 of 52
lured and enticed by the accused No 2 and as to how she was
kidnapped. She has stated how she was made to surrender before the
accused No. 1 because she was promised by the accused No.2 that
she would be provided employment at the hands of the accused No.1,
so she did not raise any hue and cry and put herself at the mercy of
accused No. I who ravished her. Prosecution witness PW-6 has
stated that he has no knowledge about the occurrence and the
prosecutrix is not known to her. Even though he has been declared
hostile but he has admitted that prosecutrix was recovered from the
house of the accused. The other witnesses have stated in clear and
unequivocal terms that prosecutrix was recovered from the house of
the accused and this fact that she was raped by the accused No.1 has
been stated by the prosecutrix herself. Since the ape has taken place
behind the closed doors where no other person other than the
prosecutrix herself has been eye witness so her statement cannot be
brushed aside. Since the prosecutrix is the only witness to the
occurrence and she has stated that she was raped by the accused
and her statement has been corroborated by other prosecution
witnesses and also by medical evidence which goes to show that
hymen of the prosecutrix was found ruptured and she was subjected
to intercourse. It has been stated by the witnesses that prosecutrix
was recovered from the illegal custody of the accused and this part
of the evidence has remained un-rebutted and defence has filed to
shake the evidence of the prosecution in any manner. More so, all
the witnesses who are witnesses to the recovery have proved the fact
that the prosecutrix was recovered from the illegal custody of the
accused. On this point there are no contradictions in the statements
made by the prosecution witnesses. All the witnesses have deposed in
one voice without any material contradiction here and there that the
prosecutrix was recovered from the illegal custody of the accused.
This fact that she was recovered from the house of the accused has
been proved by all the witnesses beyond any shadow of doubt. This
part of the evidence has remained un-rebutted and defence has
failed to shake the evidence of the prosecution in any way. More so,
when all these witnesses were present on the scene and witnessed the
recovery with their naked eyes.

As far as the 4th essential ingredient is concerned, the
prosecution evidence taken as a whole inspires confidence of the
court. However, heinous and revolting in nature the crime may be,
creating emotional turmoil in the heart and mind of the Judge, same
cannot be permitted to blinden the judicial vision from objectivity
appreciating the case in its proper perspective by seeing whether
apart from the heinousness of the crime, there was any credible
evidence worth the name to connect the accused with the crime

Cr. Appeal No. 08/2014 Page 24 of 52
alleged against him. Between the allegations of the heinousness of
the crime, on the one hand, and the accused on the other hand,
before any conclusion as to the guilt of the accused is reached in
between the two, there is a definite gap which is required to be
bridged only by the cogent, convincing and reliable prosecution
evidence. The case of the prosecution is based on direct ocular
evidence which has remained un-rebutted and un-shattered by the
defence. The ocular evidence proves the factum of guilt of the
accused and thus is sufficient to hold that the accused no. 1 has
committed the offence and the accused no. 2 has aided and abetted
the commission of offences., Direct evidence which is available on
the file proves the factum of the guilt of the accused that is sufficient
to convict the accused for the commission of offences committed by
them.

The edifice of the prosecution case is based on the deposition
made by the witnesses who as per the defence are partisan and
interested because they have implicated accused in a concocted
case. It has been argued by the defence that all the witnesses have
not been examined by the prosecution and had those witnesses been
examined they would have supported the cause of accused but there
is nothing on the file suggestive of the fact that the prosecution
witnesses have made false statements so as to implicate the accused
in a false and frivolous case. Defence has failed to shatter the
prosecution evidence, so as to bring any material contradiction on
the record thus the prosecution witnesses can be safely relied upon.
The prosecution has not only proved its case by the ocular evidence
but it has also proved the case against the accused by the medical
evidence as well. The prosecution has proved its case beyond any
doubt, so as such it can safely be inferred that prosecution has been
able to prove its case against the accused.

In order to arrive to a just conclusion, I deem it necessary to
analyze and examine the basic ingredients of Section 375 R.P.C
punishable under Section 376 R.P.C, ingredients of Sec 361 RPC
Punishable under Section 363 RPC and ingredients of Section 366 A
RPC so as to appreciate as to whether acts of the accused attract the
ingredients of Section 375 361 and 366 A RPC so as to make their
acts punishable under Sec 376, 363, 366A RPC.

Section 375 of the R.P.C reads as under:

375:- A man is said to commit “rape” who, except in
the case hereinafter excepted, has sexual
intercourse with a woman under circumstances

Cr. Appeal No. 08/2014 Page 25 of 52
falling under any of the six following
descriptions:-

First: – Against her will.

Secondly: – Without her consent.

Thirdly: – With her consent, when her consent has been
obtained by putting her or any person in whom
she is interested in fear of death or of hurt.

Fourthly: – With her consent, when the man knows that he is
not her husband, and that her consent is given
because she believes that he is another man to
whom she is or believes herself to be lawfully
married.

Fifthly: – With her consent, when, at the time of giving
such consent, by reason of unsoundness of mind
or intoxication or the administration by him
personally or through another of any stupefying
or unwholesome substance, she is unable to
understand the nature and consequences of that
to which she gives consent.

Sixthly: – With or without her consent, when she is under
sixteen years of age.

Explanation: – Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.

As far as the ingredients of Section 375 RPC are concerned it
provides (i) that a man is said to commit rape who has sexual
intercourse with the woman against her will (ii) without her consent
and also with or without her consent when she is under 16 years of
age and in the present case, the accused no 1 has committed rape
upon the prosecutrix who is only aged about 14/15 years. The
accused has committed rape upon her forcibly and she being a
minor, so the question of consent as such does not arise at all. The
witnesses have stated that the prosecutrix was raped by the accused.
It has been stated by the prosecutrix that she was kidnapped by
accused no 2 and raped by accused No. 1, the prosecutrix was
immediately examined by the doctor who has opined that her hymen
was ruptured and she was subjected to rape. These facts lead to the
inescapable conclusion that accused No. 1 committed rape upon the
prosecutrix as such; the ingredients of Section 375 RPC are fulfilled.

361. Kidnapping from lawful guardianship;

Cr. Appeal No. 08/2014 Page 26 of 52

Whoever takes or entices any minor under (sixteen years of
age if a male, or under (eighteen) years of age if a female, or any
person of unsound mind, out of the keeping of the lawful guardian of
such minor or person of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from lawful
Guardianship.

As far as the ingredients of offence of kidnapping as defined
by Section 361 RPC and punishable under Section 376 RPC are
concerned, it provides that 1) there should be enticement by deceitful
means, 2) enticement should be of a minor, 3) taking away must be
from the lawful guardianship and 4) taking must be without the
consent of the lawful guardianship.

So far as the facts of the present case are concerned, the
prosecution case is that the prosecutrix is a minor, was allured by
the accused No. 2 by deceitful means and was take to her home
where she was held forcibly by deceitful means and on the pretext
and promise that she will be provided employment and, as such, was
kept in their illegal custody for 5/6 days without the consent and
knowledge of her guardian and as far as the evidence led in by the
prosecution is concerned, all the witnesses have stated that the
prosecutrix was kidnapped by the accused and detained in their
home for about 5/6 days and the prosecutrix was recovered from the
illegal custody of the accused so, as such, the ingredients of Section
361 RPC punishable under Section 363 RPC have been fulfilled
Section 366 RPC have been fulfilled.

366. Prosecution of minors;

Whoever, by any means whatsoever, induces any minor girl
under the age of eighteen years to go from any place or to do any act
with intent that such girl may be, or knowing that it is likely that she
will be, forced or seduced to illicit intercourse with another person
shall be punishable with imprisonment which may extend to ten
years, and shall also be liable to fine.

The bare and cursory reading of this provision of criminal
law provides that where a minor girl under the age of 18 years is
induced by deceitful means or seduced to go from any place or is
seduced for illicit intercourse with another person, the person who
so induces the minor for sexual intercourse shall be liable for the
commission of procuration of minor and as far as the facts of the
present case are concerned, it has been stated by the prosecutrix
that she met the accused No. 2 at the Shine and the accused No. 2
under the allurement kidnapped her and gave her an impression that

Cr. Appeal No. 08/2014 Page 27 of 52
in case she obliges the accused No. 1 she will be granted
employment and accordingly, the prosecutrix was raped by the
accused No.1 so as such, the ingredients as are required to establish
offence under Section 366-A RPC have been fulfilled and proved and
all the witnesses especially the prosecutrix has stated that at the
behest of the accused No. 2 she was raped by the accused No. 1 so
as such, the guilt of the accused No. 2 for the commission of offence
under section 366-A RPC has been established beyond any
reasonable doubt.

Edifice of the prosecution case is based on the depositions
made by the witnesses who as per the defence are partisan or
interested witnesses because; they have implicated the accused in a
false and concocted case. It has been contended by the defence that
all the witnesses have not been examined by the prosecution and had
those witnesses been examined by the prosecution and had those
witnesses been examined they would have spoken in favour of the
accused and against the prosecution. But as far as the record on the
file is concerned, the witnesses who have been examined by the
prosecution are all natural witnesses and they have seen the
occurrence with their naked eyes. The PW1 being the complainant,
the PW5 was also accompanying the police party at the time the
prosecutrix was recovered from the illegal custody of the accused
and even though, the PW6 has been declared hostile but he too has
stated that prosecutrix was recovered from the illegal custody of the
accused. As all the witnesses have stated that prosecutrix was
recovered from the illegal custody of the accused and even though
some witnesses have not been examined by the prosecution but no
benefit can be derived by the accused from their non-examination.
So this argument will not lie in the mouth of the defence to allege
that prosecution has wit-held the material witnesses because as far
as the case of the prosecution is concerned all the material witnesses
have been examined by the prosecution and the prosecution has
established the guilt of the accused beyond the reasonable doubt so
as such, no serious infirmity and prejudice has been caused to the
accused even if some of the witnesses have not been examined by the
prosecution and more so, there is nothing on the file suggestive of
the fact that the prosecution witnesses have made false statements so
as to implicate the accused in a false and frivolous case. The defence
has failed to shatter the prosecution evidence so as to being any
contradictory material on the record as such; the statements made
by the prosecution witnesses can be safely relief upon. The
prosecution has not only proved its case by ocular evidence, but it
has also proved the case against the accused by medical evidence as
well. The contents of the recovery memo have been properly proved

Cr. Appeal No. 08/2014 Page 28 of 52
and the contents of the FIR have been proved and it has been proved
by the I.O as to how the investigation was conducted and how the
prosecutrix was recovered and as to how she was medically
examined and what opinion was given by the doctor. The accused
was medically examined and it has been proved that the accused was
potent by the medical opinion, so if all these facts are taken together
prosecution case has been proved beyond all reasonable doubts, so
as such, the prosecution has proved the guilt of the accused beyond
all reasonable doubts so as such the accused are liable to be
convicted.

Furthermore, it is to be borne in mind that while dealing with
the testimony of child witness, the child at a tender age is incapable
of having any malice or ill will against any person and there must be
something on record to satisfy the court that something had gone
wrong between the date of the incident and recording the evidence of
the child witness due to which the witness wanted to implicate the
accused falsely in a case of serious nature. If the age of the
prosecutrix is take to be between 14 to 16 years, it would not be
incorrect to state that the prosecutrix was not that small child, who
could be tutored or prompted by some person having a personal
vendetta to falsely implicate the accused and that too in a case
which will cast a mental scar on her own chastity, dignity and
prestige. In the present case, nothing has been brought on record to
show that the prosecutrix had any planned agenda or motive to
attribute the offence to the accused. Moreover the defense has failed
to place on record any evidence to attribute any motive on the part
of the prosecutrix to intentionally make a false statement to
implicate the accused. The mandate of the law as settled by the
Hon’ble Supreme Court in a case cited State of U.P Vs Krishna
Master and Ors., AIR 2010 SC 3071, is that if the statement of the
prosecutrix inspires confidence then the conviction can be based on
the solitary evidence of the prosecutrix and no corroboration would
be required.

Furthermore, it is to be borne in mind that normally in a case
of rape the victim of rape would not implicate a person of such
heinous crime by sacrificing her repute and that of the repute of her
family. In this regard, I may refer to a judgment passed by the
Hon’ble Apex Court in a case cited as 1996 2 SCC 384 titled as
State of Punjab Versus Gurmeet Singh wherein, it has been held as
under:

“that sexual violence apart from being de-

humanizing act, is as unlawful intrusion in the right of
privacy and sanctity of the family. It is a serious blow to

Cr. Appeal No. 08/2014 Page 29 of 52
her supreme honour and often destroy her self-esteem,
dignity and degrade and humiliate the victim and where the
victim is helpless, innocent minor child, it leaves behind a
traumatic experience. A rapist not only causes the physical
injuries but more in deliberate leaves a scar on the most
cherished possession of a woman i.e. her dignity, honor,
reputation and not the less her chastity. The rate is not only
a crime against the person of a woman, but it is a crime
against the entire society.”

Further more in a case cited as (1996) 2 SCC 384, the
Supreme Court has laid down that normally no self respecting
woman would come forward to make false allegation of rape.
Relevant portion of the report is extracted hereunder:

“8…… The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just to
make a humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement of
the prosecutrix should not, unless the discrepancies are
such which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the courts
should not overlook., The testimony of the victim in such
cases is vital and unless here 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……..”

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 Hon’ble
Supreme Court in
Shri Bodhisattwa Gautam V. Miss Subhra
Chakraborty (AIR 1996 SC 922), the entire psychology of a woman

Cr. Appeal No. 08/2014 Page 30 of 52
and pushes her into deep emotional crisis. It is 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. 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. A socially sensitized Judge, in our opinion, is a better
statutory armour in cases of crime against woman than long clauses
of penal provisions, containing complex exceptions and provisions.

The barbarity of the offence of rape cannot be
overemphasized, especially when we have witnessed the most
gruesome and horrific instances of the same in the recent past.
Courts cannot turn a blind eye to the fact that the consequences of
this monstrous act remain as devastating as ever, but may be the
societal prism which shamed and blamed the survivor has changed
angles. The women as a whole, cutting across status, class, culture,
creed or sex are a vulnerable group but a minor child is most
susceptible of the lot. The tender years of innocence where the
children are taught to have faith in the goodness of humanity and
nurturing relationships with trust fall apart when the same child
becomes a prey in the hands of the lusty and unscrupulous men. The
beastly act f ravishing a minor for exerting his position of male
dominance and violating her physical and mental well-being, is
attitude of a savage tribe and not of a civilized society. To fathom
the aftermath of the sentience of the happening of such tormenting
act on the person is to add yet another monumental blow to her
dignity. The notion of the law being feeble and the offender being
actually punished being remote is what needs a tectonic shift. To
counter this feeling the law should act as a deterrent. The need for
every person to know the legal ramifications of his vicious acts is
important, especially that of rape. The emboldening of the law
should act as a deterrent to the prevalence of flouting the law with
impunity. The courts have to be the torchbearer to create the fear of
law in the minus of the people that they have to think a million times
before committing this immoral act. The common man should be
daunted by the law and it can only come by ingraining in them the
repercussions of their acts.

The fact that sweeping changes have been introduced in the
laws as far as crimes against women are concerned reflects the
legislative intent to curb with iron hand, the offence of rape which
affects the dignity of a woman. The offence of rape in its simplest
term is ‘the ravishment of a woman, without her consent, by force,
fear or fraud’, or as ‘the carnal knowledge of a woman by force
against her will’. It is violation with violence of the private person of

Cr. Appeal No. 08/2014 Page 31 of 52
a woman-an-outrage by all means. By the very nature of the offence
it is an obnoxious act of the highest order. The physical scar may
heal up, but the mental scar will always remain. When a woman is
ravished, what is inflicted is not merely physical injury but the deep
sense of some deathless shame. The offender robs the victim of her
most valuable and priceless possession that is dignity.

The court cannot loose sight of the fact that in the society in
which we live, no woman would come forward generally speaking,
to make a humiliating statement against her honour of being raped
unless it was true. The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons and property of
the people is an essential function of the courts. It could be achieved
through instrumentality of criminal law. Undoubtedly, there is a
cross cultural conflict where living law must find answer to the new
challenges and the courts are required to meet such challenges. The
contagion of lawlessness would undermine social order and lay it in
ruins. Protection of society and stamping out criminal proclivity
must be the object of law. The courts cannot loose sight of the fact
that the crimes of violence upon women are on the increase and rape
is most hated crime. It is crime against basic human rights and also
violates right of life. Rape is thus not only a crime against the person
of a woman (victim), but it is a crime against entire society. It
destroys the entire psychology of a woman and pushes her into deep
emotional crises. It is only by her sheer will power that she
rehabilitates herself in the society which, on coming to know for the
rape, looks down upon her in derision and contempt. Rape is
therefore, the most hated crime. It is a crime against basic human
rights and is also violative of the victims most cherished of the
Fundamental Rights namely, the right of life contained in
Article 21.
To many feminists and psychiatrists, rape is less a sexual offence
than an act of aggression aimed at degrading and humiliating
women.

This apart, the court should also keep in view that in the
scheme of criminal justice system prevalent generally it is the state
and not the victim which prosecutes the offender of law. The victim
only assumes the role of a material witness in establishing the
commission of crime. Though the victim is not before the court, yet
the court should always remain alive to the nature of sufferings of
the victim resulting from the alleged crime because in that lies the
larger interest of the public.

Thus keeping in mind the facts and circumstances of the case
and the discussion made hereinabove, in my opinion; the
prosecution has been able to prove its case beyond all reasonable

Cr. Appeal No. 08/2014 Page 32 of 52
doubts. The prosecution has been able to prove that the accused No.
2 enticed and lured prosecutrix a minor aged 14/15 years, by
deceitful means and kidnapped her, detained her in her house where
accused no. 1 committed rape upon her with the aid and assistance
of accused No. 2. The witnesses who have been examined by the
prosecution have proved the guilt of the accused beyond reasonable
doubt. Besides this, the medical evidence also establishes the guilt of
the accused beyond reasonable doubt.

Thus, accordingly, the accused No. 1 is convicted under
Section 376, 363, 109 RPC and the accused No. 2 is convicted under
section 366-A, 363, 376, 109 RPC.”

07. It can be seen from a naked eye that the learned trial Court has, in the
judgment cited above, touched all the pros and cons of the case. The learned
trial Court has recorded the entire evidence in its breadth and length in the
impugned judgment and the same does not require to be re-evaluated here. The
judgment delivered by the learned trial Court is lucid, luminous and clear. It is
based on the facts, the evidence and the law holding the field. It does not require
any further elaboration by this Court for the reason that the same is
magniloquent and eloquent. The learned trial Court has delved over the entire
range of the facts and the circumstances of the case with lucidity and elegance.
However, it may be added that the accused No.1 herein this case has been
arraigned on a charge of assaulting the prosecutrix sexually, on the aid and
assistance of the accused No.2 who took her to her house under the belief that
she will be provided a job. The prosecutrix, it is said was plus fourteen years of
age at the time of this incident. The prosecution version revolves primarily on
the statement of the prosecutrix buttressed with the medical evidence.

08. In a case of rape, the onus is always on the prosecution to prove each
ingredient of the offence it seeks to establish and such onus never shifts. There
is no rule of practice that there must, in every case, be corroboration before a
conviction can be allowed to stand. The most important evidence in all such
cases is that of the victim herself. In practice, a conviction of rape, almost

Cr. Appeal No. 08/2014 Page 33 of 52
entirely, depends on the credibility of the statement of the prosecutrix so far as
the essential ingredients are concerned, the other evidence being merely
corroborative. Section 376 RPC requires two essentials (i) sexual intercourse by
a man with a woman; and (ii) sexual intercourse must be under the
circumstances falling under any of the six clauses of the Section.

09. The law is that Section 3 of the Evidence Act enables a Court to employ
only the standards of a prudent man in judging what is to be deemed to be
proved according to the law and
Section 114 of the Evidence Act enables the
Courts to presume only that which accords with the ordinary course of events
and human nature and not what would be an aberration from such a course. The
degree, to which proof must reach before a Court trying a criminal case will
convict is, no doubt, that which a prudent man will employ in reaching a
conclusion beyond reasonable doubt, whereas an accused need not prove his
case to the same extent in order to succeed. But the standards employed in
judging each version are those of a reasonable and prudent man. Such a man can
only adopt what is natural to expect and what accords with common sense and
ordinary experience, but not what is extra-ordinary and unexpected as a reliable
test of credibility of witnesses. There is no uniform method of arriving at
correct, or, at least satisfactory conclusions upon veracity of versions, placed
before the Court, which can be applied to all cases. It may be possible to decide
many cases by determining the main or crucial point on which the decision of
the case, one way or the other, may turn. In other words, where many disputable
points are involved, none of which is conclusive, a more elaborate and
comprehensive treatment of the various points involved, in the whole case, may
become necessary. Courts have, however, to attempt to separate the ‘chaff from
the grain’ in every case. They cannot abandon this attempt on the ground that

Cr. Appeal No. 08/2014 Page 34 of 52
the case is baffling unless the evidence is really so confusing or conflicting that
the process cannot reasonably be carried out.

10. Courts, in search of the truth of a case, have to be aware of being misled
by half-truths, or, individually defective pieces of evidence. Firstly, irrelevant
and unconnected facts and circumstances should be examined. Secondly, the
pattern of the case thus revealed, in the context of a whole sequence of proved
facts, must be scrutinized to determine whether a natural or probably a credible
course of events is discernible. Thirdly, the minutiae of evidence, including the
established discrepancies, should be put in the crucible of the whole context of
an alleged crime, or occurrence, and tested, particularly with reference to the
proved circumstances, which generally provide a more reliable indication of
truth than the faulty human testimony in the process of separating the ‘grain
from the chaff’. Fourthly, in arriving at an assessment of the credibility of an
individual witness, regard must be had to the possible motives for either
deliberate mendacity or subconscious motivations. Last, but not the least, the
demeanour and bearing of the witness in Court, should be carefully noticed and
the appellate Court should remember that a trial Court has had, in this respect,
an advantage which it does not possess.

11. Looking at the instant case, from the perspective of what has been stated
above, the sum and substance of the prosecution evidence requires to be
reiterated here. The statement of the prosecutrix that she was subjected to rape
will be detailed hereinafter in its entirely. PW-1, Sitara Begum, i.e. the mother of
the prosecutrix, has stated that before a period of six to seven months from the
date of her examination, her daughter, a student of 7th class, went to the Shrine
of Peer Dastigir Sahib to offer prayers. She did not return. She searched for her,
but could not locate her. Thereafter, on the 6th day, she was told by a small child
that a lady, namely, Dilshada has confined her daughter in her house. She went

Cr. Appeal No. 08/2014 Page 35 of 52
to the house of that lady. She enquired about her daughter from Dilshada, but
she divulged that her daughter is not in her house. Thereafter, she went to the
Police Station, Khanyar. She lodged an FIR, stating therein that her daughter
has been kidnapped by the accused. The police went to the house of the accused
and they recovered the prosecutrix there. In her cross-examination, she has
stated that her husband died in the year 1993 and the custody of the prosecutrix
was handed over to her by the police authorities.

Ghulam Qadir Bhat, has stated that the prosecutrix aged 14 years had
been to the shrine of Peer Dastigeer Sahib. He lived in the house of the
complainant as a tenant. The prosecutrix did not return home. Her mother got
worried. She searched for her. She went to different places in her search.
Thereafter, someone told her that a lady, who resides in their vicinity, runs a
racket. He asked her to enquire about the whereabouts of her daughter from that
lady. They went to the house of that lady. She did not allow any access to them.
Then, they went to the Police Station and lodged a report. The police authorities
recovered the prosecutrix from a room situated in the first floor of the house of
the accused. At that moment, both the accused were present in the house. The
accused had lured the prosecutrix under the pretext that they will get her
employed in some Government department.

12. Smt. Rafia Subla, has narrated that on the 26th of May, 2003, she was
posted at the Jawahar Lal Nehru Memorial (JLNM) Hospital, Rainawari. She
examined the prosecutrix and after her examination, she issued a certificate to
the effect that the age of the prosecutrix was about 13 years and she was
sexually violated. The hymen of the girl was ruptured and she was subjected to
sexual intercourse before a period of forty eight hours from the date of her
examination. The statement of PW9-Dr. Khurshid Ahmad, is that he examined
the accused No.1 and certified that he is potent and can perform the sexual act.

Cr. Appeal No. 08/2014 Page 36 of 52

13. PW6-Sh. Habibulla Salathi, has stated that the prosecutrix, who was
recovered from the house of the accused, is not known to him. He has further
stated that he does not know whether or not the prosecutrix was kidnapped by
the accused for committing rape on her person. Sh. Mohammad Ismail, ASI, has
stated in his statement that, in the month of May 2003, he was posted as ASI at
Police Station Khanyar. The investigation of the case was entrusted to him. The
family members of the prosecutrix informed him that the prosecutrix has been
kidnapped by the accused. He, along with the family members of the
prosecutrix, went to Khalifapora, Khanyar and the prosecutrix was recovered
from the house of the accused. He was accompanied by the mother and the
brother-in-law of the sister of the prosecutrix. In his cross-examination, he has
stated that, besides collecting various documents, he obtained the certificate of
the ‘Date of Birth’ of the prosecutrix from the Government School Zadibal,
where she was studying at that moment and as per the ‘Date of Birth’ certificate,
the prosecutrix was born on the 10th of November, 1988 and, on the basis of this
certificate, she was a minor on the date of occurrence.

14. The prosecutrix has given a vivid image of the facts and circumstances
under which she was ravished by the accused. She has unraveled the entire
truth. The pith and core of her statement is that in the month of February, 2003,
she had been to the Shrine of Peer Dastigir Sahib to offer prayers. She was a
student of 8th class at that moment. In the Shrine, she came across accused No.2,
namely, Dilshada. She got acquainted with her. The accused No.2 asked her to
give her residential particulars. She also enquired from her whether she was
pursuing any job. In reply, she told her that her father has passed away. Her
family is living under the shackles of poverty. The accused No.2 told her that
she is an influential lady and she will get her employed in some Government
Department. On this, she asked her to meet her again in the Shrine of Peer

Cr. Appeal No. 08/2014 Page 37 of 52
Dastigir Sahib. After some days, she (the Prosecutrix) went to the Shrine of
Peer Dastigir Sahib, where she came across the accused No.2. The accused No.2
at about 7 p.m. asked her to accompany her. They boarded an Auto. The
accused No.2 took her to her house. The accused No.1, namely, Bashir Ahmad
Matoo, was there in the house. Dilshada, the accused No.2 told the prosecutrix
that the accused No.1 will provide her some job (Note: the trial Court has
recorded that, at this juncture, the witness started crying and stated that the
accused raped her and ruined her life). She, the accused No.2 and the accused
No.1 slept on the same bed. During the night, the accused raped her thrice
against her will and wish. The accused detained her in the house for six days.
During the rest of the days, the accused No.1 did not violate her sexually.
However, during this period of stay in their house, the accused No.2 told her
that the accused No.1 will arrange the marks certificate of ‘Three Years Degree
Course’ for her, on the basis of which, she can seek employment. She has also
stated that she was recovered by the police authorities and she was taken to the
Hospital for examination, whereafter her custody was handed over to her
parents.

15. The defence witnesses, namely Ghulam Qadir Bhat and Mohammad
Yousuf Bhat, have stated that the accused are persons of repute and they have
been falsely implicated in the case. Both of them have stated in their cross-
examination that they do not know why and how the accused were arrested by
the Police authorities.

16. Adverting to the evidence adduced by the prosecution to establish that the
prosecutrix was plus 14 years of age at the moment she was raped by the
accused, the ‘Date of Birth’ certificate of the prosecutrix issued by the
authorities of the Government School Zadibal, where she was studying at that
time, depicts that she was born on the 10th of November, 1988, meaning thereby

Cr. Appeal No. 08/2014 Page 38 of 52
that the prosecutrix was plus 14 years of age at the time of incident that took
place in February, 2003. The school certificate issued on the basis of admission
register is relevant in evidence in terms of
Section 35 of the Evidence Act and
there are a catena of judgment to subsume this proposition of law.

17. Resort can, in this behalf, be had from the law laid down in the case of
“State of Chattisgarh Vs. Lekhram”, reported in “(2006) 5 SCC 736”, where
it has been held as under:

“A register maintained in a school is admissible in
evidence to prove the date of birth of the person concerned in
terms of
section 35 of evidenced act. Such date of births are
recorded in school register by the authorities in discharge of
their public duty.

18. The same view has been repeated and reiterated in case titled “Sannaia
Subba Rao Ors Vs. State of A.P.” reported in “2008 (3) Crimes 174 (SC)”,
where it has been held that the school certificate produced by the Headmaster of
the school from where the subject was studying, being a legal document and
having evidentiary value, has to be given due weightage.

19. On the analysis of the law down above, it has to be presumed that the
prosecutrix was plus 14 years of age at the time of the commission of the crime
by the accused. This fact is also corroborated by the medical expert in his
testimony, who has put the age of the prosecutrix to be around 14 years on the
date he examined her. On the face of the age of the accused, the argument,
whether the rape was or was not consensual, pales into insignificance, although,
the evidence on record speaks volumes that the prosecutrix was put in a magic
spell by the accused No.2 under the alibi that she can manage a job for her and
the hapless girl stricken by poverty, whose father had died before the incident,
fell a victim to the deceit exerted and employed by the accused No.2, namely
Dilshada. The accused No.1 ravished the prosecutrix, of the age of his

Cr. Appeal No. 08/2014 Page 39 of 52
daughter, as the tentacles of an octopus does to its victim. The statement of the
prosecutrix is sufficient to arrive at the conclusion that the accused No.1, in
connivance with the accused No.2 (his wife), committed rape on a girl, aged
approximately fourteen years. His culpability in the sexual assault on the
prosecutrix is proved beyond any shadow of doubt. The statement of the
prosecutrix is reliable and impeccable. There is no inherent improbability or
defect in it. There seems to be no reason to discredit or suspect her. The
prosecutrix or her family members do not nourish any grudge against the
accused. They do not have scores to settle with the accused, so that it could be
said and held that the accused have been implicated falsely in the case.

20. Ideally and logically, a witness is a person who knows, but is detached
and has no particular interest or sympathy and feels personally unconcerned. As
between two parties, persons, events, occurrences, controversies, quarrels,
fights, the witness knows both sides of an issue without any personal axe-to-
grind in being interested in one or the other. Life is deeper than either logic or
law. One of the most inhuman acts indulged in is when the animal instincts in a
human take possession of him and he sexually assaults an adolescent girl, caring
little what bruises he causes her. The assault causes psychological, sexual and
medical injuries to the victim with no attenuating factors to, in any way, lessen
the criminal ferocity. Right from intention down to the actual act of crime, the
intent is fully malicious, which must be met with a punishment equal in force to
that intent. The conviction of the accused, in a case of rape, can be based on the
sole testimony of the prosecutrix. Corroboration is a rule of prudence and not a
rule of law. This is fortified by a catena of the judgments of the Apex Court and
the High Courts of the country.

21. The judgment laid down in the case of “State of Rajasthan Vs. Biram
Lal” reported in “2005 (2) Crimes 133 (SC)”, supports this view and it has

Cr. Appeal No. 08/2014 Page 40 of 52
been held therein that, if the Court is satisfied that the evidence of the
prosecutrix is free from any blemish and is implicitly reliable, then, on the sole
testimony of the prosecutrix, the conviction can be recorded.

22. A cue can also be had, in this behalf, from the law laid down in the in the
case of “Lalliram Anr Vs. State of M.P.” reported in “2008 (4) Crimes 99
(SC)”, wherein it has been held that injury is not a ‘sine qua non’ for deciding
whether rape has been committed, but has to be decided on the factual matrix of
each case. Where the allegation is of rape by many persons and several times,
but no injury is noticed, then, that certainly is an important factor. Even then, if
the prosecutrix’s version is credible, then no corroboration is necessary. An
incredible version, however, requires corroboration.

23. In yet another case bearing the title “State of Punjab Vs. Gurmit Singh
Ors” reported in “AIR 1996 Supreme Court 1393”, it has been held that
the testimony of the victim in cases of sexual offences 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 the accused, where her testimony
inspires confidence and is found to be reliable. Seeking corroboration of her
statement before relying upon the same, as a rule, in such cases, amounts to
adding insult to injury. Why should the evidence of a girl or a woman, who
complains of rape or sexual molestation, be viewed with doubt, disbelief or
suspicion? The Court, while appreciating the evidence of a prosecutrix, may
look for some assurance of her statement to satisfy its judicial conscience, since
she is a witness who is interested in the outcome of the charge levelled by her,
but there is no requirement of law to insist upon corroboration of her statement
to base conviction of an accused. The evidence of a victim of sexual assault
stands almost at par with the evidence of an injured witness and, to an extent, is

Cr. Appeal No. 08/2014 Page 41 of 52
even more reliable. Just as a witness, who has sustained some injury in the
occurrence, who 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 the given circumstances.
It must not be overlooked that a woman or a girl subjected to sexual assault is
not an accomplice to the crime, but is a victim of another person’s lust and it is
improper and undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice. Inferences have to be
drawn from a given set of facts and circumstances with realistic diversity and
not dead uniformity, lest the type of rigidity in the shape of rule of law is
introduced through a new form of testimony, making justice a casualty. Courts
cannot rely upon a fossil formula and insist upon corroboration, even if, taken
as a whole, the case spoken by the victim of sex crime strikes the judicial mind
as probable.

24. In case “State of H.P. Vs. Gian Chand”, reported in “2001 (6) SCC 71,
it has been observed that conviction for an offence of rape can be based upon
the sole testimony of the prosecutrix corroborate by medical evidence and other
circumstances, such as report of chemical examination, if same is found to be
natural trustworthy and worth being relied upon. The Court further held if the
evidence of the prosecutrix inspires confidence it must be relied upon without
seeking corroboration of her statement in material particulars. If for some
reason court finds it difficult to place implicit reliance on her testimony it may
look for evidence which may lend assurance to her testimony, short of

Cr. Appeal No. 08/2014 Page 42 of 52
corroboration required in case of an accomplice. The testimony of prosecutrix
must be appreciated in the back ground of entire case and trial court must be
alive to its responsibility and be sensitive while dealing with a case involving
sexual molestation. In the backdrop of the above legal position, with which we
are in respectful agreement the evidence of the prosecutrix needs to be analyzed
and examined carefully. But, before we do that, we state, as has been repeatedly
stated by this court, that a woman who is victim of sexual assault is not an
accomplice to the crime. Her evidence cannot be tested with suspicion as that of
an accomplice. As a matter of fact, the evidence of the prosecutrix is similar to
the evidence of an injured complainant or witness. The testimony of
prosecutrix, if found to be reliable, by itself, may be sufficient to convict the
culprit and no corroboration of her evidence is necessary. In prosecutions of
rape, the law does not require corroboration. The evidence of the prosecutrix
may sustain a conviction. It is only by way of abundant caution that court may
look for some corroboration so as to satisfy its conscience and rule out any false
accusations.

25. In “State of Maharashtra Vs. Chandraprakash Kewalchand Jain”,
reported in “(1990) 1 SCC 550″, it has been held that a woman who is victim of
sexual assault is not an accomplice to the crime but is a victim of another
person’s lust and therefore her evidence need not be tested with same amount of
suspicion as that of accomplice and therefore the rule of prudence that her
evidence must be corroborated in material particulars has no application, at the
most Court may look for some evidence which lends assurance……..”

“…….. A prosecutrix of a sex-offence cannot be put on par
with an accomplice. She is in fact a victim of the crime.
The
Evidence Act nowhere says that her evidence cannot be accepted
unless it is corroborated in material particulars. She is undoubtedly
a competent witness under
section 18 and her evidence must receive
the same weight as is attached to an injured in cases of physical

Cr. Appeal No. 08/2014 Page 43 of 52
violence. The same degree of care and caution must attached in the
evaluation of her evidence as in the case of an injured complainant
or witness and no more. What is necessary is that the court must be
alive to and conscious of the fact that it is dealing with the evidence
of a person who is interested in the outcome of the charge levelled
by her. If the court keeps this in mind and feels satisfied that it can
act on the evidence of the prosecutrix, there is no rule of law or
practice incorporated in the
Evidence Act similar to illustration (b)
to
section 114 which requires it to look for corroboration. If for
some reasons the court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for the evidence which may
lend assurance to her testimony short of corroboration required in
the case of an accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must necessarily
depend on the facts and circumstances of each case. But if a
prosecutrix is an adult and full understanding the court is entitled to
base a conviction on her evidence unless the same is shown to be
infirm and not trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that the prosecutrix
does not have a strong motive to falsely involve the person charged,
the court should ordinarily have no hesitation in accepting her
evidence.”

26. In “State of Punjab Vs. Gurmit Singh Ors, reported in “AIR 1996
SC, 1393, it has been observed that the Court overlooked 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
alarm. 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 can 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. 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 in 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

Cr. Appeal No. 08/2014 Page 44 of 52
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. Seeking corroboration of her statement
before relying upon the same as a rule, in such cases, amounts to adding insult
to injury. 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. The courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or insignificant discrepancies
in the statement of the prosecutrix, which are not of a fatal nature, to throw out
an otherwise reliable prosecution case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking corroboration of her
statement in material particulars. If for some reason the court finds it difficult to
place implicit reliance on her testimony, it may look for evidence which may
lend assurance to her testimony, short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases involved sexual
molestation. This Court has repeatedly laid down the guidelines as to how the
evidence of the prosecutrix in the crime rape should be evaluated by the Court.

27. The observations made in the case of “Bharwada Bhoginbhai Hirjibhai
Vs. State of Gujrat” reported in “AIR 1983 SC 853”, deserve a special
mention and have to be kept in mind invariably while dealing with a case of
rape. These are reproduced below, verbatim:-

“In the Indian setting, refusal to act on 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

Cr. Appeal No. 08/2014 Page 45 of 52
male dominated society. We must analyse 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 without feet
firmly planted on the soil of India and with our eyes focused 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, attitude, mores, responses of the Indian
society, and its profile. The identities of the two worlds are different.
The solution of the problems cannot therefore be identical……..”

“…….. Without the fear of making too wide statement, or of
overstating the case, if 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 an 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. She would face the risk of losing the love and respect of her
own husband and near relatives, and of her matrimonial
home and happiness being shattered.

5. If she is unmarried, she would apprehend that it would be
difficult to secure an alliance with a suitable match from a
respectable or an acceptable family.

6. It would almost inevitably and almost invariably result in
mental torture and suffering to herself.

7. The fear of being taunted by others will always haunt her.

8. She would feel extremely embarrassed in relating the
incident to others being overpowered by a feeling of shame

Cr. Appeal No. 08/2014 Page 46 of 52
on account of the upbringing in a tradition-bound society
where by and large sex is taboo.

9. The natural inclination would be to avoid giving publicity
to the incident lest the family name and family honour is
brought into controversy.

10. The parents of an unmarried girl as also the husband and
members of the husband’s family of a married woman,
would also more often than not want to avoid publicity on
account of the fear of social stigma on the family name and
family honour.

11. The fear of the victim herself being considered
promiscuous or in some way responsible for the incident
regardless of her innocence.

12. The reluctance to face interrogation by the investigating
agency, to face the court, to face the cross-examination by
counsel for the culprit, and the risk of being disbelieved,
acts as a deterrent.”

28. Testing the instant case on the touchstone of the judicial instances quoted
above, there appears to be no doubt in holding that a conviction can be based on
the sole testimony of the prosecutrix. What weighs with the court is the quality
and not the quantity of evidence. No invariable rule can be laid down as to how
many witnesses are required to prove the guilt of the accused. The statement of
the prosecutrix, herein this case, is trustworthy. It breeds confidence in the mind
of a reasonable and prudent man. The prosecutrix had no malice, ill will, hatred,
animosity or scores to settle with the accused or to take revenge from the
accused by falsely implicating them in the case at the cost of her reputation. The
mother of the prosecutrix has stated that her daughter was raped by the accused
No.1. This, she has stated, was narrated to her by the prosecutrix herself. The
law is that the statement of the ravished girl to the mother is legally admissible
as evidence of conduct under
section 8, Illustration (j) of the Evidence Act. And
Section 157 of the Evidence Act provides that “the statement of the girl made at
or about the time of the offence, is legally admissible as corroboration.

29. The medical opinion, in this case, is that the hymen of the prosecutrix
was found to be ruptured. The medical jurisprudence enunciates that the hymen

Cr. Appeal No. 08/2014 Page 47 of 52
usually ruptures in sexual intercourse if the penetration is beyond the opening of
the hymen. In case of the girls of tender age, hymen is deeply rooted. Due
cognizance of these facts has, therefore, to be taken. In the case at hand, the
prosecutrix has categorically stated in her testimony that the accused ravished
her chastity at least thrice during the first night of her stay in his house. She
wept and wailed before the Court while narrating this gruesome incident. The
statement of the prosecutrix supported by the medical expert confirms rape.
Corroboration to the statement of the prosecutrix by the medical evidence which
is not the rule of law but a rule of prudence proves penetration beyond the
hymen. The statements of the prosecutrix and the medical expert are sufficient
to come to the conclusion that she was ravished by the accused. Penetration of
male organ completely, partially or slightly would be enough to constitute the
offence of rape.

30. The argument of the learned counsel for the accused is that there is a
delay in lodging the FIR. The argument is a specious argument. It is true that
delay in lodging the FIR is fatal to the prosecution, however, this cannot hold
true in the case of a rape. In such cases, delay in lodging the FIR can be due to a
multiplicity of reasons. In “AIR 1996 SC 1393”, titled “State of Punjab Vs.
Gurmit Singh Ors”, it has been held that, in sexual offences, delay in the
lodging of the FIR can be due to variety of reasons, particularly, the reluctance
of the prosecutrix and 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. Even, if there is some delay in lodging FIR
in respect of the offence of rape, if it is properly explained and the explanation
is natural in the facts and circumstances of the case, such delay would not
matter.

Cr. Appeal No. 08/2014 Page 48 of 52

31. In a case titled “Karnel Singh Vs. State of M.P.”, reported in “AIR
1995 Supreme Court 2472”, it has been held that the reluctance to go to the
police is because of societal attitude towards the women who are victims of
sexual assault, it casts doubt or shame on her and her family rather than comfort
and sympathize with her. Therefore, delay in lodging FIR in rape cases does not
necessarily indicate that her version is false.

32. In case titled “Pammu Sreenu Vs. State of A.P.” reported in “2009 (3)
Crimes 35 (SC)”, the same view has been reiterated and it has been held that
ordinarily the family of a victim would not intend to get a stigma attached to the
victim. The delay in lodging the FIR in the case of this nature is a normal
phenomenon.

33. Again, in a case titled “Sohan Singh Anr Vs. State of Bihar”
reported in “2009 (4) Crimes 116 SC”, in paragraph No. 14, it has been held
that as far as delay in lodging the FIR is concerned, we are also satisfied that it
cannot be termed to be inordinately delayed. Even otherwise, in our considered
opinion, too, it cannot be said that there has been inordinate or unexplained
delay in lodging the FIR. When FIR by a Hindu lady is to be lodged with regard
to commission of offence like rape, many questions would obviously crop up
for consideration before one finally decides to lodged FIR. It is difficult to
appreciate the plight of the victim who has been criminally assaulted in such a
manner. Obviously, prosecutrix must have also gone through great turmoil and
only after giving it a serious thought, must have decided to lodged the FIR.

34. In spite of the rapid process of urbanization going on in the country, there
still remains a more than half the population of the country, which is rural in
habitat and rustic in culture. The culture of theirs consists of old traditions, old
sentiments, techniques, institutions like family marriage, religion, customs,
norms, standards, mores, social taboos, practices permitted and prohibited,

Cr. Appeal No. 08/2014 Page 49 of 52
relationships of blood, joint family system and a plethora of other overt and
covert factors of social behaviour. One of the customs, originating in ancient
history of the country, is to suppress even to the extent of breathing not a word
to any other person in the matter of pertaining to a crime against girls and
women, particularly sexual assaults or molestations or rapes.

35. It takes a long time for a family to decide whether or not to report such a
matter to the concerned authorities. The instant case is one such case. In it a
very unfortunate and sad event of an adult male sexually raping a fourteen years
old girl has taken place. The time gap between the occurrence of the crime and
reporting the crime is approximately six days. But the Judges, in such cases,
cannot take shelter behind the legalisms or eristic disputations. They must
exercise their own innate sense of Justice in such cases, particularly in rustic
areas of Arcadian social life. Delay in lodging the FIR in such cases can be
understood and it cannot be held to be fatal to the prosecution. Holding so will
be adding insult to the injury.

36. The tragedy of the rape must be fresh in the mind of the prosecutrix, her
parents and her uncle. However, they should be the last persons to fabricate the
case against the accused. Being relations, they cannot substitute a person in
place of the real culprit and, that too, in a heinous offence of rape. Very rarely
will a girl in India make false allegations of sexual assault. A girl, in the
tradition bound society of India, would be extremely reluctant even to admit any
incident which reflects on her chastity. She would be conscious of the danger to
which she will be exposed. She would be conscious of being lowered down in
the estimation of her own family members, relatives, friends, neighbours and
others. She will have to face the whole world. It is, therefore, always desirable
to test the evidence of the witnesses on the anvil of objective circumstances of
the case. The instant case must have shattered the prosecutrix. The incident

Cr. Appeal No. 08/2014 Page 50 of 52
might have shaken her life and soul. So, to say that the occurrence has been
manipulated by the prosecutrix, will be to rub salt into the wounds of the victim.

37. The behavioral pattern and perceptive habits of the witnesses have to be
judged as such. Too sophisticated approaches about human conduct cannot be
applied to those given to the lethargic ways of our villages. To hope for rigour,
in the proof of a correct version, is almost to hope for the moon.

38. The contention of the learned counsel for the accused that the accused
could not have committed the offence of rape in the way it has been imputed to
him, can be answered by stating that there is no end to human degradation,
where it is a question of sexual intercourse. There are cases where fathers and
uncles have sexually assaulted their daughters and nieces, male teachers doing
the same to their girl students. This is a tale of woe covered by thin veneer of
the so-called ‘modern fast civilization’. Those, who are behind the scenes, see
all the “course pulleys and dirty ropes”, which the ignorant audiences do not
know.

39. The upshot of the above discussion is that there appears to be no error in
the judgment of the learned trial Court. The learned trial Court has touched all
the aspects of the case extensively- be that the effect of the delayed FIR in the
case, the effect of inconsistencies in the statements of the witnesses which have
been rightly brushed aside, the argument that the appellant No.1 could not have
indulged in the horrifying crime of rape in presence of his wife, the age of the
prosecutrix on the date of the occurrence, the recovery of the prosecutrix from
the house of the accused, the contention of the defense that the prosecution has
examined interested and partisan witnesses only in the case and, to crown it all,
whether or not it was necessary to seek the corroboration of the statement of the
prosecutrix in the facts and circumstances of the instant case, where the medical
evidence confirms the rape. Viewed thus, the judgment of conviction and

Cr. Appeal No. 08/2014 Page 51 of 52
sentence of the learned trial Court does not call for any interference. It has to be
maintained and is, accordingly, upheld, as a consequence of which, the appeal,
alongwith all connected MP(s), is dismissed. Interim directions, if any, in force
as on date, shall stand vacated.

40. Registry to send down the trial Court record(s) to the Court(s) below
along with a copy of this judgement.

(M. K. Hanjura)
Judge
SRINAGAR
January 30th, 2018
“TAHIR”

Cr. Appeal No. 08/2014 Page 52 of 52

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