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Dola @ Dolagobinda Pradhan vs The State Of Odisha on 29 August, 2018

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Non-Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1095 OF 2018
(Arising from SLP (Crl.) No. 8578/2017)

DOLA @ DOLAGOBINDA PRADHAN ANR. ..APPELLANTS

VERSUS

THE STATE OF ODISHA ..RESPONDENT

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The judgment dated 10.05.2017 passed in CRA No. 267 of

1992 by the High Court of Orissa at Cuttack confirming the

judgment of conviction and order of sentence dated 20.07.1992

passed by the Assistant Sessions Judge, Bonai, in ST No. 65/2

of 1991-1992, is called in question in this appeal. By the

impugned judgment, the High Court has confirmed the

judgment and order of conviction passed against the appellants

for the offence under Section 376(2)(g) of the Indian Penal Code
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(for short ‘the IPC’) and order of sentence of Rigorous

Imprisonment for ten years.

3. The case of the prosecution in brief is that when the

victim-prosecutrix was enroute home from her road side “eating

house” (hotel) near Khuntagaon weekly market at about 8:00

p.m. on 24.03.1990, the appellants suddenly emerged from

behind a ‘Mahulatree’ and gagged her mouth by a napkin and

physically carried her to a roadside date-palm clump. Akshya

Pradhan (Appellant No.2) threatened the victim with dire

consequences by showing a knife at her, and being frightened,

the victim could not raise any alarm. The appellants made her

lie on the field and both of them committed rape on her. The

victim thereafter rushed to her house and narrated the entire

episode to her husband. She also showed her torn inner

garments worn at the time of occurrence and the injury

sustained by her on her cheeks. The next day, at about 11.00

a.m. the victim and her husband went to the police station and

lodged the First Information Report (Ext. 1). The Investigating

Officer (PW-7) took up the investigation and filed the
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charge-sheet against both the accused for the above-mentioned

offence. After framing the charges, the Sessions Court held the

trial. As mentioned supra, the Trial Court convicted both the

accused for the offence punishable under Section 376(2)(g) of

the IPC and the same came to be confirmed by the High Court.

4. Ld. Counsel for the appellants, taking us through the

material on record, submitted that an implicit reliance cannot

be placed on the uncorroborated testimony of the victim, who

had a strong motive to implicate the appellants falsely in a

serious crime. The victim’s husband has not supported the

case of the prosecution. The story as put forth by the victim

bristles with inherent improbabilities and exaggerations. The

case of the prosecution is not supported by the medical

evidence and the entire case of the prosecution is a cooked-up

story against the appellants in order to take revenge against

them because of a business rivalry.

Ld. Counsel for the State argued in support of the

judgments of the Trial Court as well as the High Court.
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5. It is well settled law that if the version of the prosecutrix is

believed, basic truth in her evidence is ascertainable and if it is

found to be credible and consistent, the same would form the

basis of conviction. Corroboration is not a sine qua non for a

conviction in a rape case. The evidence of a victim of sexual

assault stands at par with the evidence of an injured witness

and is entitled to great weight, absence of corroboration

notwithstanding. If the evidence of the victim does not suffer

from any basic infirmity and the “probabilities factor” does not

render it unworthy of credence, as a general rule, there is no

reason to insist on corroboration, except from medical evidence,

where, having regard to the circumstances of the case, medical

evidence can be expected to be forthcoming. When a grown up

and married woman gives evidence on oath in Court that she

was raped, it is not the proper judicial approach to disbelieve

her outright.

6. In this regard it would be useful to quote certain

observations of this Court in the case of Bharwada Bhoginbhai
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Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is

observed that:

“10. By and large these factors are not relevant
to India, and the Indian conditions. Without the
fear of making too wide a statement, or of
overstating the case, it can be said that rarely
will a girl or a woman in India make false
allegations of sexual assault on account of any
such factor as has been just enlisted. The
statement is generally true in the context of the
urban as also rural Society. It is also by and
large true in the context of the sophisticated,
not so sophisticated, and unsophisticated
society. Only very rarely can one conceivably
come across an exception or two and that too
possibly from amongst the urban elites.

Because: (1) A girl or a woman in the tradition
bound non- permissive Society of India would
be extremely reluctant even to admit that any
incident which is likely to reflect on her chastity
had ever occurred. (2) She would be conscious
of the danger of being ostracised 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
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extremely embarrassed in relating the incident
to others being over powered by a feeling of
shame 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 to be
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.

11. In view of these factors the victims and
their relatives are not too keen to bring the
culprit to books. 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. On principle the
evidence of a victim of sexual assault stands on
par with evidence of an injured witness. Just as
a witness who has sustained an injury (which is
not shown or believed to be self inflicted) is the
best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a
victim of a sex-offence is entitled to great weight,
absence of corroboration notwithstanding. And
while corroboration in the form of eye witness
account of an independent witness may often be
forthcoming in physical assault cases, such
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evidence cannot be expected in sex offences,
having regard to the very nature of the offence.
It would therefore be adding insult to injury to
insist on corroboration drawing inspiration from
the rules devised by the courts in the Western
World (Obeisance to which has perhaps become
a habit presumably on account of the colonial
hangover). We are therefore of the opinion that if
the evidence of the victim does not suffer from
any basic infirmity, and the “probabilities
factors” does not render it unworthy of credence,
as a general rule, there is no reason to insist on
corroboration except from the medical evidence,
where, having regard to the circumstances of the
case, medical evidence can be expected to be
forthcoming, subject to the following
qualification: Corroboration may be insisted
upon when a woman having attained majority is
found in a compromising position and there is a
likelihood of her having levelled such an
accusation on account of the instinct of
self-preservation. Or when the ‘probabilities
factor’ is found to be out of tune”.

(emphasis supplied)

7. In Sadashiv Ramrao Hadbe v. State of Maharashtra,

[(2006) 10 SCC 92], this Court reiterated that the sole

testimony of the prosecutrix could be relied upon if it inspires

the confidence of the Court:

“9. It is true that in a rape case the accused
could be convicted on the sole testimony of the
prosecutrix, if it is capable of inspiring confidence
in the mind of the court. If the version given by
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the prosecutrix is unsupported by any medical
evidence or the whole surrounding circumstances
are highly improbable and belie the case set up
by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts
shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case
is improbable and unlikely to happen.”

8. However, as is also evident from the observations above,

such reliance may be placed only if the testimony of the

prosecutrix appears to be worthy of credence. In this regard, it

is also relevant to note the following observations of this Court

in the case of Raju v. State of Madhya Pradesh, [(2008) 15 SCC

133], which read thus:

“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspected and should
be believed, more so as her statement has to be
evaluated on a par with that of an injured witness
and if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and
we respectfully agree with them, but at the same
time they cannot be universally and mechanically
applied to the facts of every case of sexual assault
which comes before the court.

11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but
at the same time a false allegation of rape can
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cause equal distress, humiliation and damage to
the accused as well. The accused must also be
protected against the possibility of false
implication, particularly where a large number of
accused are involved. It must, further, be borne in
mind that the broad principle is that an injured
witness was present at the time when the incident
happened and that ordinarily such a witness
would not tell a lie as to the actual assailants, but
there is no presumption or any basis for assuming
that the statement of such a witness is always
correct or without any embellishment or
exaggeration.”

Having due regard in our mind to the above-mentioned

settled position in law, we have assessed the entire material on

record meticulously.

9. The victim/prosecutrix (PW-1) has deposed that on the

night of the incident, at about 7:00 p.m., the accused persons

forcibly lifted her while she was going alone to her house from

her hotel, her husband having left already. Though she wanted

to shout, she could not do so since the accused showed a knife

and threatened her with dire consequences. After this, both the

accused persons committed rape on her. According to her, her

saya (petticoat) (MO No. II) was stained with semen. The police

had seized her saree, saya, and blouse, and she was examined
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by the doctor at the instance of the police. Although in the

examination-in-chief she has deposed about the exact names of

each of the accused, and the details of the incident, her

admissions in the cross-examination raise several doubts as to

the veracity of her version as found in the examination-in-chief.

In her cross-examination, she admitted that both the accused

persons have a hotel near her hotel; she is the first wife of her

husband; her sister is the second wife of her husband and is

also residing with her husband; the spot of the incident is in

between her hotel and Nuadihi Chowk; the road bifurcates at

Nuadihi Chowk and buses usually turn at that chowk; there

are shops on that chowk; her hotel is towards the west of that

road; the hotel of one Purna Bira is near her hotel; the house of

Purna Bira is close to the hotel where he resides with his family

members; Nuadihi U.P. School is near that chowk; there are 4

to 5 residential houses near that U.P. School; and teachers also

live on the school campus. The scene of offence is a corner

place in between the U.P. School and residential houses

situated near the school. She further deposed that there are

village roads near the scene of offence which connect to the
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main road. There are cultivable lands between the village road

and the spot. The spot is encircled by cultivable lands. There

are small stones near the spot. The spot is not plain, but it is

uneven. She further admitted in the cross-examination that

she did not meet anybody while going to her house after the

alleged incident, and that none of the neighbours came to her

house when she disclosed the matter to her husband. Her

husband, her brother-in-law, one servant boy and she herself

work in the hotel. One Mr. Dasarathi Sahu is a partner for this

hotel business. Vehicles ply throughout the day and night in

front of her hotel. In her hotel, food is usually served till 10.00

p.m. Curiously, she admitted that she could not say if the

occurrence took place on 24.03.1990. On the day of the

occurrence, there was a weekly market in the village and in that

market, business is usually carried on from morning till 10.00

p.m.

10. From the aforementioned admissions of the victim, it is

clear that the scene of offence is a busy area wherein a number

of buses ply, many shops and residential houses exist, and a
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school is also situated. The scene of offence is near a circle

wherein buses pass through frequently. The business in that

area generally ends only at 10.00 p.m., which means that the

area in question is a very busy area till 10.00 p.m. According

to the prosecution, both the accused persons lifted the victim

forcibly from the road, sometime between 7:00 and 8:00 p.m.

and took her from that busy area and committed the offence of

rape on her. Such a story put forth by the prosecution which

prima facie appears to be improbable needs to be proved by the

prosecution beyond reasonable doubt. Though both the Courts

concurrently concluded against the accused persons, we, in

order to satisfy our conscience, have gone through the evidence

on record.

11. In her cross-examination, it was also admitted by the

victim that there is a Village Forest Protection Committee at

village Sadhubahal, and that people sometimes used to sell

firewood by removing the same from the forest and the

adjoining forests. She denied knowing that the Appellant No.1,

Dolagobinda Pradhan, was the President of the Village Forest
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Protection Committee, and that the Committee had asked her

husband to not remove firewood from the forest. However, she

admitted that there was a hot exchange of words between her

husband and the accused Dolagobinda, and that her husband

was assaulted by the people of village Sadhubahal, wherein

Dolagobinda also gave him blows. The occurrence of the said

assault had taken place in the morning on the date of

occurrence of rape. Again, on the very day in the evening, the

people of Sadhubahal created a disturbance at the hotel of the

victim/prosecutrix, demanding shifting of her hotel from that

place. According to the victim, the rape took place sometime

after that disturbance. Additionally, the prosecutrix deposed

that she, along with her husband, reported to the police about

the assault on her husband. Dolagobinda and the others

involved did not go to the police station when called. She also

stated that she, as well as her husband, was called to the police

station two days after the occurrence. In view of such

admissions of the victim, the submission made on behalf of the

accused that they have been falsely implicated in order to take

revenge against them appears to be well founded. It is the case
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of the defence that the prosecutrix and her husband used to

indulge in cutting of firewood from the forest and selling the

same in the market, due to which the villagers, as well as the

President of the Forest Protection Committee (Appellant No.1),

were aggrieved, and a tussle had taken place in that regard.

12. Curiously, the victim has not sustained any injury except

some bruises on her cheeks. Her clothes were not even soiled

with mud. In her cross-examination, she admitted that there

was a tussle at the time of the alleged incident, and that she

tried to save herself. She also stated that both the accused

persons physically lifted her from the spot, and her bangles had

been broken, by which she had sustained bleeding injuries on

her hands. Furthermore, she said that she also sustained

marks of violence on her hands. She did not sustain any injury

on her knee, breasts and buttocks. She stated that she has no

acquaintance with the accused persons and she did not have

any kind of dealings with them. She further admitted that she

had worn eight bangles on each of her hands and all her

bangles on the right hand were broken and only one bangle of
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the left hand remained unbroken, and that all the bangles were

broken at the spot of offence.

13. Although the prosecutrix admitted that she sustained

bleeding injuries on her hand because of the shattering of eight

bangles worn by her on her right hand and seven bangles on

her left hand, and had marks of violence present on her body,

the medical records do not support the said version. The report

of the medical examination is at Ext. 4. It is clearly mentioned

in the said report that there is a bruise mark measuring half a

centimeter, which can be caused by a hard and sharp object,

on the right cheek. No other mark of injury was seen anywhere

on the body. There is no injury on the breasts, there is no

internal injury on any part of the body and no injury was found

on the vulva, pelvis and vagina. There are no signs of injury on

the thighs as well. Except for one bruise on cheek which

measures half a centimeter, no other injury was found on the

victim and the same is clear from the medical report (Ext. 4).

14. Thus, medical evidence does not support the case of the

prosecution. The Doctor (PW-4), who examined the victim,
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however, has deposed that there were four bruises, each

measuring half a centimeter on the left cheek and four bruises

each measuring half a centimeter on the right cheek. The

Doctor opined that the injuries are simple in nature and might

have been caused by a hard and sharp object. The Doctor did

not find any other injury on the body of the victim. There was

no injury on the back side of the body of the victim. Although

the Doctor has deposed in the examination-in-chief that the

injuries could have been caused by human bite, he has

admitted in his cross-examination that he has not mentioned

the shape of the injuries in his report. He further admitted that

a bruise can be caused by a blunt object like stone, wood, fist

blow etc. and can also be caused by a fall. While a bruise is

always accompanied by swelling, an abrasion caused by a

human bite is elliptical or circular in form, and is represented

by separated marks corresponding to the teeth of the upper and

lower jaw. If we were to believe that the abrasion was caused by

a bite, the same should have been elliptical or circular in form.

The said material is not forthcoming from the records.
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Moreover, the medical report (Ext. 4) is contrary to the

version of the Doctor with regard to the number of injuries as

well. The medical report merely states that the victim has

sustained a bruise mark measuring half a centimeter in size,

which means that only one bruise was found on the right cheek

of the victim. However, during his deposition the Doctor has

exaggerated to say that the victim has sustained four bruises

on each of her cheeks. In any event, merely on the basis of a

bruise or bruises on the cheeks, which can be caused even by a

fall or by an assault with a hard substance, it cannot be said

that the victim has suffered sexual assault.

15. The sample of semen and saliva including the petticoat

(saya) of the victim were sent to the Forensic Science

Laboratory (for short ‘the FSL’) for examination. The FSL’s

report disclosed that semen was not detected on the saya

(petticoat). All other exhibits collected and sent to the FSL, i.e.

the samples of saliva and semen collected for testing purposes

from the two accused and the prosecutrix’s husband, were

unsuitable for serological examination. Since the saya
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(petticoat) did not contain any seminal stain, it would be hard

for the Court to believe that sexual assault had taken place on

the victim, more particularly when the other material does not

support the case of the prosecution, and when it is not the case

of the prosecution that the victim has changed her dress or that

she had washed her clothes, etc. Per contra, the evidence on

record discloses that the victim stayed in her house all night

and thereafter, leisurely at 11.00 a.m. the next day, she went to

the police station and lodged the FIR, after which she was taken

for medical examination. If the offence of rape had really taken

place, and her saya was in fact stained with semen, the same

would have been depicted in the FSL report.

16. It was also admitted by the prosecutrix in her

cross-examination that she had not clearly seen the face of

anyone at the time of occurrence and she could not recognize

the persons committing the rape by face, but she could

recognize them hearing their voice. If we were to believe that

the victim did not have any acquaintance with any of the

accused persons, and that she could not see and recognize the
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faces of any of the accused persons at the time of occurrence, it

would appear improbable for her to recognize the accused

merely by hearing their voice. There cannot be any dispute that

when the persons are known to each other, a person can

certainly identify the other person by voice. However, the

question of identification by voice has to be dealt with by the

Court carefully. In Kirpal Singh vs. State of U.P., [AIR 1965 SC

712], this Court, while dealing with the question of voice

identification, observed as follows:

“4…It is true that the evidence about the
identification of a person by the timbre of his
voice depending upon subtle variations in the
overtones when the person recognizing is not
familiar with the person recognized may be
somewhat risky in a criminal trial. But the
appellant was intimately known to Rakkha
Singh and for more than a fortnight before the
date of the offence he had met the appellant on
several occasions in connection with the
dispute about the sugarcane crop. Rakkha
Singh had heard the appellant and his brother
calling Karam Singh to come out of the hut and
had also heard the appellant, as a prelude to
the shooting referring to the dispute about
sugarcane.”
(emphasis supplied)
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In light of the above observations, the Court found

that the voice identification of the accused by a witness, whose

credibility had otherwise been accepted by the courts below,

was not improbable. This principle was also applied by this

Court in Mohan Singh vs. State of Punjab, [AIR 2011 SC 3534].

In this case, voice identification was accepted, inter alia, on the

ground that there was no evidence adduced to challenge the

evidence of the witness that he had acquaintance with the

accused and that he knew the voice of the accused. The Court

also adverted to the decision of this Court in Inspector of Police

vs. Palanisamy, [(2008) 14 SCC 495], wherein it was held that

though identification from voice is possible, no evidence had

been adduced to show that the witnesses were closely

acquainted with the accused to enable voice identification and

that too from very short replies.

Thus, from the above cases we may cull out the principle

that identification from the voice of the accused may be

possible if there is evidence to show that the witness was

sufficiently acquainted with the accused in order to recognize

him or her by voice.

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In the matter on hand, the prosecutrix herself has

admitted that there was no acquaintance between the victim

and accused. In such a scenario, it would be difficult for us to

accept the version of the victim that she recognized the accused

from their voice. We reiterate the observations in Kirpal Singh

(supra) that the identification of a person by the timbre of his

voice is risky in a criminal trial, when the identifying person is

not familiar enough with the accused to be able to differentiate

between subtle variations in the overtones. In the view of the

lack of acquaintance between the prosecutrix and the accused,

it will not be safe for us to accept her version regarding the

identity of the accused, given the absence of a Test

Identification Parade.

17. The crown to these suspicious circumstances is that

PW-3, the prosecutrix’s husband, was declared hostile. In his

examination-in-chief, he deposed that the victim reached their

house between 7-8 p.m., crying. He refused to speak about

what she told him, out of shame. In his cross-examination by

the prosecution, he denied being told by his wife that the

accused forcibly lifted and raped her. He only admitted being
22

told that the accused dragged her on the way. Thus, he

maintained that his wife had not narrated the rape incident to

him, even upon a specific query by the public prosecutor in this

regard.

He also admitted to the occurrence of the tussle over the

allegations of theft of forest produce levelled against him by the

accused and around forty other persons, all of whom assaulted

him on the morning of the alleged incident of rape and asked

him to shift his hotel away from its current location, which was

near the hotel operated by the accused. He specified that he

was not deposing falsely out of fear.

During his cross-examination on behalf of the accused, he

also admitted that a dispute occurred at his hotel on the day

before the date of the incident, in the absence of his wife. He

reiterated that on the day of the incident, around 50 persons

had created a disturbance at his hotel in the morning, though

he could not specify who hit him. He even went on to say that

his wife had sent someone to the police station after this

assault, whereupon the police came to his hotel, and even
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called everyone to the police station, though the accused did

not oblige.

With regard to the rape incident, he deposed that he

accompanied his wife to the police station on Sunday morning,

i.e. the day following the day of the alleged incident, reaching

around 10:00 a.m. and returning around 05:00 p.m. It may be

noted that the prosecutrix herself deposed in her

cross-examination that they returned around 1.30 to 2:00 p.m.

He claimed that having remained outside the police station

while his wife was examined, he had no knowledge of what

transpired inside. Finally, he admitted to not telling anyone in

the village about the rape incident or the visit to the police

station.

18. According to the prosecution, the incident has taken place

at about 7:00 p.m. to 8:00 p.m. on 24.3.1990. As per the

admissions of both the prosecutrix and her husband, PW-3, in

the morning as well as in the evening of the date of incident, a

number of people had gathered and created disturbance in the

hotel of the victim and PW-3, and assaulted him. It seems that
24

the running of the hotel by the victim and her husband was not

palatable to the accused and forty other persons in the village.

Added to this, PW-3 was stated to have been involved in the

theft of forest produce and in that regard the villagers had a

grievance against him.

19. As mentioned supra, the spot where the alleged rape had

been committed and the spot from where the victim was forcibly

physically lifted by the accused were not deserted places,

inasmuch as in the normal course of a day, numerous

passersby and vehicles ply there. It is unlikely that no one had

noticed the victim being lifted and subjected to forcible sexual

intercourse. Though the victim narrated the entire incident to

her husband (PW3), he has denied before the Court that the

victim informed him about the commission of forcible sexual

assault on her. Firstly, the husband (PW-3) refutes that the

victim told him that she was lifted from the spot and subjected

to forcible sexual intercourse. Secondly, PW-3 has deposed that

the victim told him that the appellants had dragged the victim

on the way. And finally, he has also denied stating to the
25

Investigating Officer that the victim told him that while she was

returning home from the hotel, the appellants have committed

rape on her. The deposition of PW-3 as mentioned supra,

practically does not support the version of the victim. There is

no reason as to why PW-3, being the husband of the victim,

would contradict her version. Moreover, the victim has deposed

that she did not see the face of anyone clearly, at the time of

occurrence and that she did not recognize the faces of the

persons committing rape on her. As we have observed supra,

in the instant case, the contention of voice recognition cannot

be accepted. That apart, though PW-3 was informed by the

victim about the incident immediately afterwards, which is the

natural conduct of a victim, strangely he was never examined

by the police, as per his own admission, though he was

standing outside the Police Station all throughout the recording

of his wife’s statement. The victim alone was taken inside the

Police Station for reasons best known to the prosecution. In

that context, the contentions of the defence that there is a

likelihood of creating a false case against the accused assume

importance.

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20. The evidence of the victim/prosecutrix and her husband

(PW-3) are unreliable and untrustworthy inasmuch as they are

not credible witnesses. Their evidence bristles with

contradictions and is full of improbabilities. We cannot resist

placing on record that the prosecution has tried to rope in the

appellants merely on assumptions, surmises and conjectures.

The story of the prosecution is built on the materials placed on

record, which seems to be neither the truth, nor wholly the

truth. The findings of the courts below, though concurrent, do

not merit acceptance or approval in our hands with regard to

the glaring infirmities and illegalities vitiating them, and the

patent errors apparent on the face of record resulting in serious

and grave miscarriage of justice to the appellants.

21. In the matter on hand, on going through the entire

material on record, we are of the clear opinion that the

prosecutrix apparently had motive to seek revenge against the

accused persons. The testimony of the victim in the peculiar

facts and circumstances of this case needs to be discarded,

since her testimony is a result of seeking revenge against the
27

accused and as her evidence is not free from blemish. The

prosecutrix’s evidence with regard to identification of the

accused was unworthy of credence as she has deposed that she

could not identify the faces of any of the accused persons,

coupled with the factum that no spermatozoa was found

evidencing recent sexual intercourse, as also there was no

injury on her body, except of course, a bruise on her cheek

measuring half a centimeter. No doubt, solely relying on the

version of the victim, a conviction can be recorded, but such

version should be reliable. If really the victim had deposed

about the incident to her husband immediately after the

incident, there is no reason for PW-3 being the husband of the

victim, to not depose about the same before the Court. The

testimony of PW-3 contradicts the story laid down by the

informant. At the cost of repetition, it can be observed that

firstly, PW-3 denies specifically that the informant told him that

she was lifted from the spot and subjected to forcible sexual

intercourse. Secondly, it is specified by PW-3 that the

informant merely told him that the accused were dragging her.

Finally, he also denies having stated to the Investigation Officer
28

that the victim told him that while she was returning from

hotel, the accused committed rape on her. The Courts have

accepted the voluntary statement of the victim while discarding

various other probabilities. The alleged scene of offence could

hardly be described as a deserted place or a secluded place for

the commission of such a ghastly crime. The spot where the

alleged rape was committed is practically near the market, and

near the main road wherein vehicles frequently ply and more

particularly when the day of the incident was a market day

which used to be busy up to 10.00 p.m. All the attending

glaring inconsistencies and improbabilities as also the other

evidence on record which demolishes the version of the victim

are conveniently ignored by the Trial Court and the High Court.

The Police have failed to recover the napkin which was used for

gagging the mouth of the victim. So also the knife allegedly

used by the accused Akshya Pradhan for threatening the victim

was not recovered. The knife would have contained the

fingerprints of the accused if it was really used by the accused.

A careful reading of the evidence of the prosecutrix and her

husband (PW-3) therefore leads us to the conclusion that the
29

case as made out by the prosecution appears to be concocted. It

cannot be said that the offence of rape has been proved beyond

reasonable doubt.

22. In our considered opinion, the Trial Court as well as the

High Court have convicted the appellants without considering

the aforementioned factors in their proper perspective. The

testimony of the victim is full of inconsistencies and does not

find support from any other evidence whatsoever. Moreover,

the evidence of the informant/victim is inconsistent and

self-destructive at different places. It is noticeable that the

medical record and the Doctor’s evidence do not specify

whether there were any signs of forcible sexual intercourse. It

seems that the First Information Report was lodged with false

allegations to extract revenge from the appellants, who had

uncovered the theft of forest produce by the informant and her

husband. The High Court has, in our considered opinion,

brushed aside the various inconsistencies pointed out by us

only on the ground that the victim could not have deposed

falsely before the Court. The High Court has proceeded on the
30

basis of assumptions, conjectures and surmises, inasmuch as

such assumptions are not corroborated by any reliable

evidence. The medical evidence does not support the case of the

prosecution relating to the offence of rape. Having regard to the

totality of the material on record and on facts and

circumstances of this case, it is not possible for this Court to

agree with the concurrent conclusions reached by the courts

below. At best, it may be said that the accused have committed

the offence of hurt, for which they have already undergone a

sufficient duration of imprisonment, inasmuch as they have

been stated to have undergone two years of imprisonment.

Accordingly, the appeal is allowed. The judgments of the Trial

Court as well as the High Court are set aside. The appellants

are acquitted of the charges levelled against them. They should

be released forthwith, if they are not required in any other case.

..………………………………..…….J.

[N.V. RAMANA]

..……………………………………….J.

[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;

AUGUST 29, 2018.

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