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Shankar C vs The State Of Karnataka on 28 June, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 28TH DAY OF JUNE, 2019

BEFORE

THE HON’BLE MR. JUSTICE K. NATARAJAN

CRIMINAL APPEAL NO.1391 OF 2017

BETWEEN:

SHANKAR C.
S/O. LATE CHANDRAIAH,
AGED ABOUT 22 YEARS,
RESIDENT OF ADARANGI,
KUDUR HOBLI, MAGADI TALUK,
RAMANAGAR DISTRICT.
… APPELLANT
(BY SRI MOHAN KUMAR D., ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY KUDUR POLICE STATION,
RAMANAGARA DISTRICT,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENGALURU.
… RESPONDENT
(BY SRI K.P. YOGANNA, H.C.G.P.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER ON SENTENCE DATED 24-7-2017
PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, RAMANAGARA, IN S.C. NO.71 OF 2015 CONVICTING
ACCUSED NO.1-APPELLANT FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 376, 363 AND 323 OF I.P.C.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27-3-2019 AND COMING ON
FOR PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:

JUDGMENT

This appeal is preferred by accused No.1 being

aggrieved by the judgment of conviction and order on

sentence passed by the III Additional District and

Sessions Judge, Ramanagara, (hereinafter referred to as

‘trial Court’, for the sake of convenience) in Sessions

Case No.71 of 2015 for having sentenced to undergo

rigorous imprisonment for 7 years with fine of

Rs.5,000/- for the offence punishable under Section

376 of Indian Penal Code (I.P.C) and in default of

payment of fine, to undergo simple imprisonment for 3

months; to undergo simple imprisonment for 3 years for

the offence punishable under Section 363 of I.P.C. and

to undergo simple imprisonment for 3 months for the

offence punishable under Section 323 of I.P.C. vide

judgment dated 24-7-2017.

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2. The appellant was accused No.1 and the

respondent Police was the complainant before the trial

Court. The ranks of the parties before the trial Court

are retained for the sake of convenience.

3. Heard the arguments of the learned counsel for

the appellant and the learned High Court Government

Pleader for the respondent-State.

4. Before adverting to the grounds urged by

learned counsel for the appellant and the learned High

Court Government Pleader for the respondent-State, it

is worth to mention the brief facts of the case of the

prosecution:

The Circle Inspector of Police, Magadi Circle, filed

a charge-sheet against accused No.1-Shankar C., the

appellant herein and Ravi Kiran-accused No.2 for the

offences punishable under Sections 323, 363 and 376D
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read with Section 34 of I.P.C. on the complaint of P.W.1-

prosecutrix filed on 28-3-2015 at 8.00 p.m. alleging that

when she was coming by walk from Adarangi towards

Kagimadu Village, accused No.1-Shankar and another

accused-Venkatesh have dragged her to Kodi Channel

and attempted to outrage her modesty and assaulted on

her face by hands. While the prosecutrix was sitting at

Rangaiahnapalya road, P.W.2 seen her and took her to

the Village. Thereafter, P.W.1 along with other Village

people went to Kudur Police Station and lodged the

complaint on 29-3-2015. Case in Crime No.110 of 2015

has been registered for the offences punishable under

Sections 363, 323 and 376D read with Section 34 of

I.P.C. and issued F.I.R. Thereafter, P.W.1 was referred

to the Hospital for medical examination, wherein it was

found that she has been subjected to rape by the

accused. Later, further statement of prosecutrix was

recorded by the Police and converted the case into
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Section 376 of I.P.C. Thereafter, accused No.1 and

another accused Ravi Kiran have been arrested and

they have been subjected to medical examination. Then

P.W.1 in her further statement stated that accused

Nos.1 and 2 abducted her to banana plantation, which

belongs to one Kempamma, situated near Kagimadu

Main Road and committed rape on her. Later, after

investigation, the Police filed charge-sheet against

accused Nos.1 and 2 for the offences punishable under

Sections 363, 323 and 376D read with Section 34 of

I.P.C. Accused were arrested and have been released on

bail. After committal, the trial Court framed the charges

against the accused. The accused pleaded not guilty

and claimed to be tried. Hence, they were put on trial.

5. The prosecution examined in all 9 witnesses as

P.Ws.1 to 9, got marked 17 documents as Exs.P1 to P17

and also got marked 13 material objects as MOs.1
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to 13. Then the accused were examined under Section

313 of the Code of Criminal Procedure, 1973. The case

of the accused was one of total denial, but not entered

into any defence and after hearing the arguments, the

trial Judge convicted accused No.1, but acquitted

accused No.2. Hence, this appeal is filed by accused

No.1.

6. Learned counsel for the appellant has

contended that while lodging the complaint by P.W.1

along with Village people, she has stated that accused

attempted to outrage her modesty and she has escaped

from them. So many villagers have signed the

complaint, but she has not whispered anything about

the rape. P.Ws.2 and 5 are the villagers, who have

enmical terms with the accused. Therefore, a false case

has been foisted against the accused. Even otherwise,

there is no medical evidence to corroborate the evidence
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of P.W.1. Police has setup a false case after thought.

There is no injury found on the body or seminal stains

found on the clothes of the prosecutrix. There is no

evidence against the accused to prove the case beyond

reasonable doubt. Complaint shows that the

complainant-prosecutrix was also raped by accused

No.2-Venkatesh, but later Ravi Kiran was brought as

accused No.2 and the name of Venkatesh was deleted.

There is no reason assigned by the prosecution in this

regard. Therefore, the evidence of P.W.1 is not sufficient

to prove the guilt against the accused. Hence, he

prayed for acquittal.

7. Per contra, the learned High Court Government

Pleader contended that the evidence of P.W.1 and the

medical evidence corroborate with each other, though

P.W.1 has not stated anything in the F.I.R., but her

subsequent statement clearly goes to show that this
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accused along with the other accused raped her. There

is no reason to disbelieve the evidence of P.W.1, who is

a natural witness. Since she being the village girl, there

may be some discrepancy in the evidence that she might

have suppressed the real fact. Therefore, her evidence

cannot be thrown out. Hence, he prayed for dismissal

of the appeal.

8. Upon hearing the arguments, it is necessary to

have a cursory look at the evidence adduced by the

prosecution before the trial Court, which is as under;

8.1 P.W.1-prosecutrix deposed before the Police

that she knows accused No.1-Shankar and accused

No.2-Ravi Kiran and about one and half-a-year prior to

her evidence, at about 7:00 p.m., when she was

proceeding to her sister’s house situated in Kagimadu

Village, at that time, accused Nos.1 and 2 came in the

motorbike. Accused No.2 closed her mouth, due to
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which, she sustained injury. Both the accused lifted

her to banana plantation and committed rape on her.

After the alleged act, when she was returning to her

house, she met P.W.2-Imran and Issack. One Nawaz

and Issack took her to the house and later, they

brought her to the Police Station. Thereafter, she was

sent to Magadi Hospital and complaint came to be filed

by the elders of the Village. She further says that at

about 8:00 p.m., they went to Police Station and filed

the complaint as per Ex.P1. She further says, the Police

have not inquired her and she has narrated entire

episode in her complaint. Thereafter, she was sent to

Rajarajeshwari Hospital. The clothes worn by her were

collected by the Police which are marked as MOs.1-4,

i.e. chudidar top, chudidar pant, veil and bra

respectively. She admits that she is unable to identify

the motorbike. In the cross-examination, she has

admitted that Police seized MOs.1 to 4 which were worn
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by her and admitted regarding lodging of the complaint

by herself along with her relatives. During cross-

examination, the learned counsel for the accused set up

defence that the accused has been falsely implicated.

P.W.1 has admitted that her younger brother-Nawaz

and Imram are friends. She has further admitted that

accused No.1 was working as a Driver under Nissar,

who is a President of Adarangi Grama Panchayat and a

member of Congress party and P.W.2-Imran is from JDS

party. P.W.2-Imran was defeated by Nissar in the

election. She also admits that she knows Venkatesh,

son of Govindappa, very well, who is also running auto-

rickshaw in Adarangi Village and there was quarrel

between her elder brother-Issack and Venkatesh with

regard to auto-rickshaw and a complaint has been

lodged in the Police Station. She further admits that

Venkatesh is having political influence and she has

given complaint in Ex.P1 naming Venkatesh as accused
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No.2. Police arrested and brought the said Venkatesh

to the Police Station. She was present in the Police

Station and identified the said Venkatesh. She further

admits that after discussing with the Police, some

political leaders came and got released the said

Venkatesh from the Police Station and she also admits

that the said Venkatesh is not the accused before the

Court. From the above admission of this witness, it is

clear that she has given a complaint against accused

No.1-Shankar and accused No.2-Venkatesh and

subsequently, the said Venkatesh was brought to the

Police Station and left free and thereafter, implicated

Ravi Kiran as accused No.2 and as per the evidence, she

knows the said Ravi Kiran from past 2 years before the

incident. When herself stated in the complaint-Ex.P1

and in the further statement, naming accused No.2 as

Venkatesh and later, there is no explanation given by

her to implicate Ravi Kiran as accused No.2, who is said
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to have committed rape on her. She has changed the

version of the complaint in Ex.P1 and further

examination of P.W.1 goes to show that place of

occurrence was on the way to Adarangi Village to

Kagimadu about one and half kilometer which is

situated on the main road of Nelamangala and there are

number of vehicles passing and public used to cross the

said road. She further admits that on the way going to

Kudur from Nelamangala, Ramanahalli is situated while

going to Kagimadu and Scheduled Caste colony is also

situated about one furlong away. There are so many

people residing. She further admits that near the place

of occurrence, i.e. survey No.30/2, there are residents

on both side and about 50 feet away, the house of

Srinivas is also situated and so many people are

residing on the way to banana plantation. Admission of

P.W.1 goes to show that there are number of houses

situated on both side on the place of occurrence and
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also there is Scheduled Caste colony situated just one

furlong on the way to the place of occurrence to

Adarangi main road. In further cross-examination,

P.W.1 has admitted that she has not stated in her

complaint about commission of rape. She also stated

that she has not disclosed the commission of rape

before the Doctor in Kudur, Magadi Hospital and

Bowring Hospital. After treatment in Rajarajeshwari

Hospital, she came to the Police Station and Police

obtained 2-3 signatures on some records. She also

admits that the Police have not done any Test

Identification Parade for identifying the accused. She

has stated that accused No.2 closed her mouth, due to

which, she sustained injury on her face and further

stated that accused No.2 bitten her on face and accused

Nos.1 and 2 both lifted her to banana plantation and

committed rape. Further, she has admitted that even

though there is no such incident occurred, but she has
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given false evidence and she further admitted that there

was rivalry between her brother Nawaz and Nissar as

accused worked under Nissar. Therefore, she lodged a

false complaint and the same was admitted by her.

This witness has turned hostile and in the cross-

examination, she has stated that accused raped her and

she has lodged complaint at the instigation of Nawaz

has been denied, and says, she has given a true case.

As per the evidence of P.W.1, on earlier occasion while

lodging the complaint-Ex.P1, she has not stated

accused Nos.1 and 2 committed rape on her, but she

has only stated they made an attempt to outrange her

modesty and in the cross-examination, she has stated

that she has not shown the spot to the Police or to

P.W.2. There is no consistency in her evidence in report

of commission of rape by the accused.

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8.2 P.W.2-Imran @ Abdul Reham has deposed

that about one and half-a-year prior to his evidence, at

about 7:30 p.m. to 8:00 p.m., Issack and himself were

proceeding on a motorcycle, they found P.W.1 was

sitting on the side of the road at Rangaiahnapalya. On

enquiry, she has informed that Shankar and Ravi Kiran

abducted her and committed rape on her. They took

the prosecutrix to her house. Thereafter, they went to

Police Station and lodged the complaint at midnight.

Police asked him to show the spot, he took the Police

and shown the banana plantation, which belongs

Hanumaiah, then Police prepared Ex.P2-spot

panchanama; seized chudidar pant and chappals. He

also identified the chudidar pant as MO.5 and chappals

as MO.6. In the cross-examination, he has admitted

that P.W.1 was known to him and he has admitted his

wife is also a member of the Grama Panchayat. There

was darkness in the road, he saw P.W.1 with the help of
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headlight of the motorcycle and brought back P.W.1 in

the motorcycle. He further admits that P.W.1 has not

shown the spot to him, but he has shown the spot to

the Police and in further cross-examination, he has

admitted that he has contested in Grama Panchayat

election and he also admits that he supported JDS

party and Nissar belongs to Congress party and accused

No.1 was working as a Driver with Nissar and he has

won the election against Nissar. In the further cross-

examination, he has admitted that he has not given any

statement to the Police stating that P.W.1 told that the

accused have committed rape on her. Even on perusal

of the evidence and admission of this witness and

evidence of P.W.1, she has not stated that the accused

have committed rape on her, when she met P.W.2 on

the said night. Even in the complaint, it is not revealed

by her or any other Village people about the commission

of rape on P.W.1. This witness also admitted that he
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knows Venkatesh and P.W.1 also told that Venkatesh

accompanied accused No.1 on the said date. He

further stated that while lodging the complaint, she has

not shown the name of accused No.2-Ravi Kiran, but

mentioned accused No.2 as Venkatesh. This witness

has denied the suggestion that due to political enmity,

the accused have been falsely implicated. His evidence

goes to show that P.W.1 has not told anything to him,

but brother of P.W.1 told that the accused have

committed rape on her. He has clearly admitted that

they have not named accused No.2-Ravi Kiran, but they

have named one Venkatesh in the complaint. If at all,

P.W.1 has been raped by accused Nos.1 and 2, she

could have informed in the Police Station while lodging

the complaint, but she has not whispered anything

about the commission of rape on her by the accused.
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8.3 P.W.5-Mohammed Thoufiq Ahmed is a panch

witness to seizure of motorbike of the accused under

Ex.P7 and identified the photographs of the vehicle.

8.4 P.W.6-Muneer Khan is one of the panch

witnesses to the spot panchanama, where MOs.5 and 6

were seized by the Police. He has supported the case in

respect of seizing of MOs.5 and 6 and he also speaks

about seizure of motorbike under Ex.P7. Seizure of

MOs.5 and 6 and seizure of motorbike were not

disputed by the accused.

8.5 P.W.3-Dr. Shreya M.S. has deposed that on

29-3-2015 at 10:50 p.m., she has examined P.W.1 on

the history of sexual assault by two persons. She has

found following injuries on P.W.1:

i. Petechial hemorrhage both left and right

cheek;

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ii. Swelling and redness over lips;

iii. Small scratch on dorsum on the right upper

limb, and

iv. Multiple bruise over lower limbs.

On examination, she found 0.5 x 0.5 cm tear

injury over introitus and hymen not intact. She has

collected vaginal smear, vaginal swab, vulval swab,

hand nail clipping, public hair, chudidar top, pant, veil

and bra for examination and gave report as per Ex.P3

that there are signs suggestive of recent use of forceful

penetration of vagina-anus and sexual violence cannot

be ruled out. She has stated that the injuries are

simple in nature and there are chances of sustaining

above injuries, if a lady is dragged to sexual assault.

During cross-examination, she has stated that prior to

examining P.W.1, the P.W.1 was examined by Kudur

Primary Health Centre and Government Hospital at
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Magadi, however, she has not received any such

information either in document or by P.W.1. Evidence

of this witness goes to show that P.W.1 was not referred

by those Doctors. She further states that they are

maintaining Medical Record in their hospital and they

have mentioned the case number, but she has not

produced any legal evidence to the Court. This witness

also admits that she has not collected the

undergarments of P.W.1 and she has not noticed the

signs of sperms or bloodstains on the clothes of P.W.1

and unable to say, whether the tear of hymen was fresh

or older one. Though she has stated that there were

bloodstains and hymen was tear, but unable to say

regarding commission of rape. She further admits that,

when forcible rape is committed on a woman on the

ground, there are chances of sustaining injuries on the

back bone and buttocks and there are chances of

clothes becoming soily, but no such thing was found on
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P.W.1 and no such soily was found on her clothes. She

further admits that she has not collected the

bloodstains and hymen rupture would be caused by

cycling and other reasons also other than rape and such

injury found on P.W.1 goes to show that she has

resisted while committing rape or any scratch marks on

her body.

9. On perusal of evidence of P.W.3-

Dr. Shreya M.S., she has not firmly stated that P.W.1

was subjected to commission of rape and since the tear

of hymen was new one, she has not mentioned the

shape of it. As per the evidence, there must be injuries

on the buttocks and the back of the victim, if she was

subjected to forcible rape. Apart from that, clothes of

P.W.1, i.e. MOs.1 to 4, vaginal smear, vaginal swab,

vulval swab, hand nail clipping, public hair and MOs.5

and 6 were sent to the F.S.L., but the F.S.L. report was
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negative and no seminal stains were found on any of the

articles sent to the F.S.L.

10. Apart from that, evidence of P.W.4-

Dr. Pradeep Kumar, who examined accused Nos.1

and 2, gave the medical examination report as per

Exs.P4 and P5 that there is no evidence of recent sexual

act. The clothes of accused No.1, i.e. MOs.7 to 10 and

clothes of accused No.2, i.e. MOs.11 to 13 were sent to

the F.S.L., but there was no seminal stains found on the

clothes of the accused. This witness also admits in the

cross-examination that if the accused attempted to have

forcible sexual intercourse in a dry garden land, there

are chances of sustaining scratch injuries on the legs,

palms and hands, but no such injuries were found on

the body of the accused. This witness further admits

that, since 2009, he has been working in Forensic

Medicine Department and he has examined as many as
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50 persons based upon the history of sexual assault.

He has clearly admitted that during sexual assault, if

the victim tried to escape from the clutches of the

assailant, there are chances of injury even on the

assailant. As per the evidence of this witness and on

examination of P.W.1 by P.W.3-Dr. Shreya M.S., they

have not found any such injuries or scratch marks on

the body of the accused or P.W.1 and no such skin

tissues found on nail clipping of P.W.1 in order to show

that P.W.1 tried to escape and caused any injury on the

accused at the time of offence.

11. On perusal of the evidence of P.W.1 compared

with P.Ws.3 and 4-medical witnesses, the evidence of

P.W.1 does not corroborates with the evidence of

medical witnesses to prove the contention of the

prosecution that P.W.1 was forcibly raped by accused
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Nos.1 and 2 on the alleged date, time and place

mentioned by her.

12. No doubt, there was some hymen rupture,

but as per the medical evidence, the Doctor has opined

that hymen rupture would be caused other than

intercourse and due to cycling or penetration of any

material. When forcible rape is committed on P.W.1, if

she has really resisted the accused, there must be some

injury found either on accused Nos.1 and 2 or scratch

marks or other marks on back of P.W.1 and there is no

seminal stains found on clothes. P.W.1 has not

whispered anything about rape at the first instance

while lodging the complaint-Ex.P1 to the Police, but

same was developed in the further statement, that too,

after examination by the Doctor, who suspected the

intercourse. However, P.W.4-Doctor, who examined

accused Nos.1 and 2, has categorically stated that the
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accused have not at all had any recent sexual

intercourse. Apart from that, there was enmity between

brothers of P.W.1 and the accused, who had worked in

favour of one Nissar in the election. They belong to

different political parties. Therefore, there is every

chance of falsely implicating the accused by P.W.1. In

this regard, the learned counsel relied upon the

following judgments of the Hon’ble Supreme Court:

12.1 In the case of ABBAS AHMAD CHOUDHARY

v. STATE OF ASSAM reported in (2010) 12 SCC 115,

wherein at paragraph No.9, it held as under:

“9. We are, however, of the opinion that the
involvement of Abbas Ahmad Choudhary
seems to be uncertain. It must first be borne
in mind that in her statement recorded on
17-9-1997, the prosecutrix had not attributed
any rape to Abbas Ahmad Choudhary.
Likewise, she had stated that he was not one
of those who kidnapped her and taken to
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Jalalpur Tea Estate and on the other hand
she categorically stated that while she along
with Mizazul Haq and Ranju Das were
returning to the village that he had joined
them somewhere along the way but had still
not committed rape on her. It is true that in
her statement in court she has attributed rape
to Abbas Ahmad Choudhary as well, but in
the light of the aforesaid contradictions some
doubt is created with regard to his
involvement.”

12.2 In the case of RAJA AND OTHERS v. STATE

OF KARNATAKA reported in 2016 (10) SCC 506,

wherein it has held as under:

“A. Penal Code, 1860 – Ss.376(2)(g)/366/392 r/w
S.34 – Gang rape after abduction – Appreciation
of evidence – Inconsistent testimony of prosecutrix

– Her conduct after alleged rape, dubious –
Medical opinion belies allegation of gang rape –
Plea of false implication cannot be discarded –
Seizures effected by investigating agency also do
27

not inspire confidence – Charge not proved
beyond reasonable doubt – Benefit of doubt –
Entitlement to – Reversal of acquittal by high
Court, set aside – All accused acquitted.”

12.3 In the case of RAI SANDEEP ALIAS DEEPU

v. STATE (NCT OF DELHI) reported in (2012) 8 SCC

21, wherein it has held as under:

“A. Penal Code, 1860 – S.376(2)(g) – Gang
rape – Appreciation of evidence – Material
contradictions – Totally conflicting versions of
prosecutrix, from what was stated in
complaint and what was deposed before
court – Conviction reversed

– Oral as well as forensic evidence not
supporting case of prosecution – Prosecutrix
(P.W. 4) alleging forcible sexual intercourse by
both appellant-accused, after entering her
sister’s house, where she was staying, `by
knocking at the door in the night at about
1.30 a.m. – Only a minor abrasion on right
28

side of neck below jaw, and no other injury
on private parts of prosecutrix, although it
was allegedly a forcible gang rape – There are
material variations in complaint and
deposition of prosecutrix in court as regards
identification of accused persons, as well as
manner in which occurrence took place – So-

called eyewitnesses (P.W.s 10 and 11, niece
and nephew of prosecutrix, respectively, who
were present in house when incident
allegedly took place) did not support story of
prosecution – Recoveries failed to tally with
statements made.

B. Criminal Trial – Witnesses – Generally –
“Sterling witness” – Characteristics of,
summarized – Evidence Act, 1872, Ss.155
and 137

Held:

A “sterling witness” should be of a
very high quality and calibre whose
version should, therefore, be
unassailable. The court considering
29

the version of such witness should
be in a position to accept it for its
face value without any hesitation. To
test the quality of such a witness, the
status of the witness would be
immaterial and what would be
relevant is the truthfulness of the
statement made by such a witness.

What would be more relevant would
be the consistency of the statement
right from the starting point till the
end, namely, at the time when the
witness makes the initial statement
and ultimately before the court. It
should be natural and consistent
with the case of the prosecution qua
the accused. There should not be
any prevarication in the version of
such a witness. The witness should
be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and
under no circumstance should give
room for any doubt as to the factum
30

of the occurrence, the persons
involved, as well as the sequence of
it. Such a version should have co-

relation with each and every one of
other supporting material such as the
recoveries made, the weapons used,
the manner of offence committed, the
scientific evidence and the expert
opinion. The said version should
consistently match with the version
of every other witness. It can even
be stated that it should be akin to the
test applied in the case of
circumstantial evidence where there
should not be any missing link in the
chain of circumstances to hold the
accused guilty of the offence alleged
against him. Only if the version of
such a witness qualifies the above
test as well as all other such similar
tests to be applied, can it be held
that such a witness can be called as
a “sterling witness” whose version
can be accepted by the court without
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any corroboration and based on
which the guilty can be punished. To
be more precise, the version of the
said witness on the core spectrum of
the crime should remain intact while
all other attendant materials,
namely, oral, documentary and
material objects should match the
said version in material particulars in
order to enable the court trying the
offence to rely on the core version to
sieve the other supporting materials
for holding the offender guilty of the
charge alleged.”

12.4 Further, unreported judgment in the case of

SHAM SINGH v. THE STATE OF HARYANA in Criminal

Appeal No.544 of 2018 decided on 21-8-2018, wherein it

has held at paragraph No.23 is as under:

“23. The evidence of the victim/prosecutrix
and the Aunt P.W.10 are unreliable,
untrustworthy inasmuch as they are not
32

credible witnesses. Their evidence bristles
with contradictions and is full of
improbabilities. We cannot resist ourselves to
place on record that the prosecution has tried
to rope in the appellant 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 court below, though
concurrent, do not desire the merit of
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 appellant.”

13. Similarly, in this case, P.W.1 gave complaint

only for attempting to outrage her modesty and there is

no complaint for committing rape on her, but later she

has improved her version in the further statement that

the accused have committed forcible rape on her and
33

there were so many houses near the place of occurrence

and she has not raised any hue and cry and tried to

resist the accused by scratching the body of the accused

and no injury found on her back and buttocks. Medical

evidence not sure about the fresh hymen rupture.

Evidence of P.W.4 goes to show that there is no recent

intercourse by accused persons. The undergarments of

P.W.1 were not seized. Chudidar top, pant, veil and bra

of P.W.1 and clothes of the accused were not found any

bloodstains or seminal stains. Even the vaginal smear,

vaginal swab and vulval swab do not contain any

seminal stains of the accused. The F.S.L. reports-

Exs.P3, P4 and P5 do not support the case of the

prosecution. Ex.P10 is acknowledgment for having

received the reports from F.S.L., but the same were not

placed before the Court by the Investigating Officer.

This Court can draw an adverse inference that

prosecution suppressed the F.S.L. reports as it could be
34

negative and may be against the prosecutrix.

Absolutely, there is no corroborative evidence in support

of the case of the prosecution. It is well settled law that

in a rape case, the evidence of prosecutrix is enough to

base the conviction. In the case on hand, there are lot

of contradictions in the evidence of prosecutrix and in

the complaint. There is improvement in her version.

There is political rivalry between the brothers of P.W.1

and the accused. Therefore, there are every chances of

falsely implicating the accused is not ruled out.

Therefore, as held by the Hon’ble Supreme Court in the

above stated cases, the prosecution is required to prove

the case of rape against the accused beyond all

reasonable doubt. The evidence of P.W.1 given in

different version and different stages stating that one

Venkatesh committed rape and later, she has changed

accused No.2 as Ravi Kiran instead of Venkatesh. The

Police have arrested Venkatesh and let him and not filed
35

any charge-sheet against him. P.W.1 has not shown the

spot to the Police, whereas P.W.2, who has not at all

seen the spot, has shown the spot to the Police and the

Police have prepared Ex.P2. These facts go to suggest

that the evidence of the prosecutrix is doubtful and

untrustworthy. Based upon assumptions, surmises

and conjectures, it cannot be believed. Therefore,

benefit of doubt has to be extended to accused No.1 and

when two versions are possible, the version favourable

to the accused has to be accepted. P.W.1 may be

consenting party for the sexual intercourse or there may

not be any offence of rape committed, but she has

stated that accused No.1 has tried to outrage her

modesty, later she has improved the version due to

political enmity between the accused and her brothers.

On both way, the benefit of doubt shall have to be

extended to the accused and the prosecution has failed

to prove the case of rape on P.W.1 beyond all reasonable
36

doubt. Though the trial Court acquitted accused No.2,

but failed to appreciate the entire evidence on record

and medical evidence, which was against the

prosecution. Thereby, the trial Court committed an

error in convicting accused No.1 based upon the

evidence of prosecutrix and prosecution witnesses.

Therefore, the appeal deserves to be allowed and

accused No.1 is also entitled for benefit of doubt on par

with accused No.2. Accordingly, I proceed to pass the

following

ORDER

i. Appeal is allowed;

ii. The judgment of conviction and order on

sentence dated 24-7-2017 passed by the III

Additional District and Sessions Judge,

Ramanagara, in Sessions Case No.71 of 2015 is

hereby set aside;

37

iii. Accused No.1 is hereby acquitted of the charges

leveled against him for the offences punishable

under Sections 363, 323 and 376 of I.P.C.; and

iv. The Registry is hereby directed to communicate

this order to the concerned Jail Authorities for

release of accused No.1 forthwith, if he is not

required in any other case.

Sd/-

JUDGE

kvk

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