HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Reserved on 09.08.2019

Delivered on 14.01.2020

Court No. – 27

Case :- CRIMINAL APPEAL No. – 79 of 1997

Appellant :- Sita Ram @ Guni and another

Respondent :- State Of U.P.

Counsel for Appellant :- J.N.Chaudhary, Amit Chaudhary

Counsel for Respondent :- Govt. Advocate

Hon’ble Karunesh Singh Pawar,J.

1.Heard Shri Amit Chaudhary, learned counsel for the appellants, Shri Shiv Nath Tilhari, learned AGA for the State and perused the record.

2.During pendency of this appeal, the appellant no.1-Sita Ram had died therefore, in respect of appellant no.1, the appeal was abated vide order dated 04.04.2017.

3.This criminal appeal has been filed against the judgment and order dated 13.02.1997 passed in Session Trial No.196 of 1995 in Crime No.97 of 1994 whereby Special Judge, Unnao vide aforesaid judgment has convicted and sentenced each of the appellants under Sections 366, 376 IPC for ten years rigorous imprisonment in each sections. The sentences were directed to run concurrently.

4.In brief, prosecution case is that informant Shiv Shankar, brother of the prosecutrix gave a written report dated 14.3.1994 at Police Station Maurawan, District Unnao alleging that her sister Siya Dulari went to ease herself in the night of 25.2.1994 at around 9:30 p.m. then the appellants Sita Ram and Ramesh Yadav with an intent to sell her had taken her away which has been seen by Billeshwar, Shiv Pyare, and Rudrapal Singh of the village. He further stated that his father had already given an information regarding missing of his sister on 27.2.1994 at Police Station Maurawan. Lastly, it has been stated in the written report, that sister of the informant while going out from the house has taken away Rs.9000/-, golden ring and other jewellery with her. The tilak ceremony of the prosecutrix was fixed on 03.03.1994, and marriage was fixed on 14.03.1994. Upon a written report, Chik FIR was registered which is Exhibit Ka-9. The Investigating Officer took up the investigation and recorded the statements of the prosecution witnesses under Section 161 Cr.P.C. A spot inspection was done, site plan was prepared after conducting the inspection, which is Exhibit Ka-6. On 15.03.1994 during investigation, appellant Ramesh Yadav was arrested and his statement was taken and on that basis appellant no.1 was arrested and the prosecutrix was recovered at 10:30 a.m. at Charbagh Railway Station. The prosecutrix was medically examined on 16.03.1994 by P.W.4. Thereafter, charge sheet was filed. The prosecution has produced five witnesses:- P.W.1 Shiv Shankar, is the informant and brother of the prosecutrix ; P.W.2 is the prosecutrix; P.W.3 Mahavir, is father of the prosecutrix ; P.W. 4 is Dr. Kusum Dubey who has medically examined the prosecutrix; and P.W. 5 is Pramod Kumar Tiwari, Investigating Officer.

5.The case was committed to the court of Sessions by the Court of Munsiff Magistrate, Unnao vide order dated 17.2.1995. Thereafter charges were framed against the accused persons and the same were read out and explained to the accused persons to which they pleaded not guilty.

6.After examining witnesses, statements under Section 313 Cr.P.C. of appellants were taken in which their defence was of total denial, and of false implication due to enemity.

7.P.W.1 in his statement before the Court has stated that accused appellants Sita Ram and Ramesh Yadav were residents of his village. He further stated that accused persons with an intent to sell the prosecutrix had taken her away on 25.2.1994 when she at around 9:30 p.m. had gone outside to ease herself, at that time, her age was 15-16 years while the accused persons fled with her. A missing report was lodged by his father on 27.2.1994. On 13.3.1994 Billeshwar, Shiv Pyare and Rudra Pal Singh told him that they have seen the accused persons along with the prosecutrix and who have taken her away. He has proved the FIR as Exhibit Ka-1. On 15.03.1994, the accused appellant no.2 Ramesh Yadav was arrested by the police who told that accused Sita Ram and prosecutrix will go to Lucknow. Then appellant no. 2 along with police personnel, the informant and his Uncle Lallu Prasad, came to Charbagh Railway Station, Lucknow and there at Platform No.1, he found accused appellant no.1 Sitaram and Siya Dulari sitting. In the cross examination by the defence, he has stated that prosecutrix was studying in Class-V around 13-14 years back. He has denied the suggestion that when Siya Dulari, prosecutrix fled with the accused persons at that time her age was 22 years.

8.P.W.-2, the prosecutrix Siya Dulari in her statement has stated that at the time of occurrence, she was not married however, marriage was fixed. She has stated she was 15-16 years old. She further stated that 2½ years back when she went to ease herself in the night at around 9:30 p.m. then Sita Ram and Ramesh Yadav were hiding behind Jamun tree and while she was preparing to return they caught hold of her. Sita Ram caught her hands and hold her mouth, Ramesh Yadav hold her feet and when she tried to raise alarm Sita Ram threatened her with a country made pistol and said do not shout otherwise they will shoot her. Thereafter, she was locked in the kothri of tubewell. In the morning she was taken by the accused persons in the field of mustard and Rabi thereafter Ramesh Yadav went to his home and Sita Ram raped her twice. After sometime, Ramesh Yadav came and again raped her against her consent. During day time, they kept her in the open mustard field and in the night they used to lock her in the kothri. This went for three days and she was subjected to rape 7-8 times in three days by both of the accused persons. Thereafter, on third day, Sita Ram and Ramesh took her to Lucknow on a cycle and when she used to cry she was shown pistol, therefore, she kept mum. From Lucknow, they took her to Gonda by bus and there in Satai ka purwa, she was locked in a room inside a house, which was locked from outside. They used to come in the night and raped her for 15 days continuously. On 14.03.1994, Ramesh Yadav returned home. On 15.03.1994, she came to Charbagh Railway Station, Lucknow. Sita Ram asked Ramesh Yadav to go to the village and try to find out the news in the village and told him to come at Charbagh Railway Station, Lucknow and he will wait. In the cross examination, she has stated that 13-14 years back she has passed out Class V. The alleged kothri of tubewell in which she was kept belongs to one of the villager which was empty. There was no window in the kothari only a door was there. It was situated at a distance of 10-12 fields away from the village. The accused persons remained with her in kothari for three days. All the three persons came to Lucknow on a cycle. She further stated that in the bus in which she was sitting few persons were there. However, 1-2 policemen were also there. She tried to raise alarm, because of accused persons she could not do so. Later on, she says that there were 15-16 persons in the bus. In the bus Ramesh Yadav and Sita Ram were armed with country made pistol which they were carrying in open. She was kept in Gonda in a house where there were ladies and children but her room was locked. She raised alarm which was not heard by anybody for a period of 15 days. She has denied suggestion that before the occurrence, she has written so many letters to Sita Ram which showed her affair with him. She has further denied the suggestion that she took with her Rs.9000/- cash, golden earring along with other jewellery. She has further denied the suggestion that she was 22 years of age at the time of incident. Suggestion that she on her own accord went away from her home has also been denied. She has also denied suggestion that she was having an affair with Sita Ram. Lastly, she has also denied that she got a beating by her parents because of her relation ship with Sita Ram.

9.P.W.3 Mahavir, father of the prosecutrix stated in his Examination-in-chief that on the date of occurrence, his daughter went away from house and did not returned. He tried to find out in his relatives but she could not be traced out. Regarding incident, he had given a missing report which has been shown to him and he has proved as Exhibit Ka-3. In the cross, he has stated that 13-14 years back his daughter used to study in class V. He has re-affirmed his statement under Section 161 Cr.P.C. given to the Investigating Officer that her daughter while going away, took Rs.9000/- cash, golden earing and other jewellery along with her. He has further stated that 10-12 years back kothari of tubewell had fallen down/caved in. Upon a suggestion that whether his daughter/prosecutrix ran away on her own accord, he stated that he could not tell this fact.

10.P.W.4 Dr. Kusum Dubey, who conducted medical examination of the prosecutrix has stated that there were no signs of external or internal injury on the person of the prosecutrix, hymen was old and torn. P.W. 4 had proved the medical examination report of the prosecutrix which is Exhibit Ka-4. In her opinion, the age of the prosecutrix according to ossification test was above 18 years. No live or dead spermatozoa was found in the pathology report and no definite opinion of rape has been given by her.

11.P.W. 5 Shri Pramod Kumar Tiwari, the Investigating Officer, in his examination-in-chief has stated that FIR was lodged in his absence. He got information on 14.03.1994 itself and on the same day, he went to Gulal Khera village and took the statement of complainant Shiv Shankar, mother of the prosecutrix Smt. Rampati, uncle of complainant Lallu Prasad and witnesses Billeshwar, Shiv Pyare and Krishna Pal, thereafter conducted the examination of the spot on the same day and prepared the site plan in his writing. After seeing the site plan, he has proved it which is Exhibit Ka-6. He further stated that on 15.03.1994, during investigation accused Ramesh Yadav was arrested. His statement was recorded on the basis of his statement, accused Sita Ram was arrested from Charbagh Railway Station, Lucknow at 10:30 a.m. who was with the prosecutrix. Fard report was prepared by him and on which prosecutrix Sita Ram and Ramesh Yadav had signed and has proved Fard which is Exhibit Ka-2. On the spot, he took the statement of the prosecutrix and accused Sita Ram and on the basis of statement of prosecutrix, section 376 IPC was added. After concluding the investigation, he has submitted charge sheet before the lower court and has proved it which is Exhibit Ka-8. He has further proved the chik report prepared by Head Moharrir, Shri Purushottam Narain Tandon, who was posted with him, Chik report is Exhibit Ka-9. In his cross examination he has stated that father, mother and uncle of the prosecutrix in their statements under section 161 Cr.P..C. had informed him that prosecutrix had gone somewhere after taking Rs.9000/- cash, golden ring and other jewellery. He had also taken the statement of Krishna Pal Singh, Shiv pyare and Billeshwar who told him that on 25.02.1994 at about 10:00 p.m. Sita Ram, Ramesh Yadav and prosecutrix were going somewhere. He lastly stated that at the time of arrest, no fire arm was recovered from Sita Ram. He denied the suggestion that he has arrested the prosecutrix Siya dulari from District Gonda and Sita Ram and Ramesh Yadav from their village.

12,Learned counsel for the appellant has made following submissions :

1.Appellant Ramesh was not seen by anybody going along with the prosecutrix and co-accused Sita Rram on 25,02.1997;

The allegation levelled was that appellant Ramesh was seen by two persons of the village namely Billeshwar and Shiv Pyare accompanying the prosecutrix and co accused Sita Ram on 25.02.1994. Despite the fact that statements of both the witnesses were recorded under Section 161 Cr.P.C. by the Investigating Officer, none was produced in the Court. The truth is that none had seen the appellant Ramesh going along with the prosecutrix and co-accused Sita Ram. As witnesses Bileshwar and Shiv Pyare were not ready to support the false prosecution story against appellant Ramesh, they were deliberately not produced before the trial Court.

Appellant Ramesh has been implicated only for the reason that he was a friend of accused Sita Ram and the complainant party suspected that he had a hand in the elopement of the prosecutrix with accused Sita Ram.

2.The prosecutrix went with co-accused Sita Ram out of her own free will

(i).The father of the prosecutrix Mahabir examined as P.W.3 had reported at the police station regarding the missing of his daughter and in his report he had alleged that the prosecutrix had taken away valuables from the home including Rs.9000/- cash, gold ear-ring, a pair of Payal and kamar peti the statement of witness Mahabir is evidence of the fact that the prosecutrix was not abducted by anyone rather she had eloped with co-accused Sita Ram out of her own free will in a planed manner.

(ii).Admittedly, the prosecutrix was kept in a ”kothri’ for three days in a village which did not have any door. She also alleged that during day time she was kept in the Rabi field while in the night she was confined in the Kothri. The fact that still she did not make any attempt to escape is a pointer to the fact of her willingness to stay with appellant Sita Ram.

(iii).Admittedly, the prosecutrix was later on kept in a room in a house which had other persons living in it as well and still the prosecutrix did not make any attempt to seek help from others also goes to show that she was not confined there against her will.

(iv).The prosecutrix was taken on a cycle to Lucknow during day time and from Lucknow she was taken by bus to Gonda. It was stated by the prosecutrix in her statement that in the bus there were 15-20 persons including policemen also. The fact that the prosecutrix did not seek anybody’s help in the bus also goes to show her willingness to accompany the accused Sita Ram.

3.The testimony of the prosecutrix is not reliable.

It has been submitted that from the facts narrated above, it is evident that the testimony of the prosecutrix that she was raped by the accused persons is not believable and the conviction based on her testimony cannot be sustained.

4.Medical opinion does not support the story of forced sex/rape on prosecutrix.

(i) The doctor opined that the age of the prosecutrix was more than 18 years ;

(ii) no dead or living spermatozoa was found in the vaginal smear ;

(iii) no opinion about rape could be given.

The medical opinion of the doctor virtually rules out the story of rape in the light of the fact that the prosecutrix had alleged that during rape she used to struggle and therefore, absence of any injury on the external or internal part of the body does not support the prosecution story of forced sex by the accused.

13.Further contention of learned counsel for appellant is that the Hon’ble Supreme Court has held in catena of decisions that if the statement of the prosecutrix is of sterling quality and inspires confidence then corroboration from other evidence need not be sought, but where the statement of the prosecutrix is shaky and does not inspire confidence then corroboration should be sought from other evidence collected during investigation.

14.It is next contended by learned counsel for the appellant that the prosecutrix was recovered along with appellant no.1 (at the time of arrest of appellant no.1) Sita Ram from Charbagh Railway Station. Admittedly, at the time of recovery, prosecutrix was sitting at the railway platform along with accused appellant Sita Ram. Needless to say that a railway platform is a crowded place and there is no evidence of the fact that the prosecutrix appears to have been confined at the place of sitting by the appellant no.1 Sita Ram or any force was applied as no fire-arm was recovered which goes to show that she was not sitting there against her wishes. He further submitted that according to prosecution story, both accused persons had katta with them which they used to threaten the prosecutrix but as admitted by the Investigating Officer no fire arm was recovered from both the accused persons.

15.Per contra, Shri Shiv Nath Tilhari, learned AGA submits that before entering into the detail arguments, he would like to submit that main argument on behalf of State is that it is a matter of committing gang rape and a lady/prosecutrix cannot be a consenting party to several persons simultaneously.

16.In support, he has placed reliance on catena of decisions which are as follows :

(i).MD Iqbal and another vs. State of Jharkhand 2013 (14) SCC 481; in this case it has been submitted that in view of provisions of Section 114-A of Indian Evidence Act, 1872 there is a presumption as to the absence of consent in case of gang rape and it will be presumed that the prosecutrix did not give consent.

(ii).Puran Chand vs. State of Himachal Pradesh 2014 (5) SCC 689. He submitted that a girl would not put herself to disrepute and would not go to support her parents to lodge false FIR of rape due to enmity as there is no delay in lodging the FIR.

(iii).State of U.P. vs. Chhotey Lal reported in 2011 (2) SCC 550; the Honb’le Court has held in para 30 which is reproduced as under :

“30. The learned counsel for the respondent submitted that no alarm was raised by the prosecutrix at the bus-stand or the other places where she was taken and that creates serious doubt about the truthfulness of her evidence. This argument of the learend counsel overlooks the situation in which the prosecutrix was placed. She had been kidnapped by two adult males, one of them, A-1, wielded a firearm and threatened her and she was taken away from her village. In the circumstances, she made sensible decision not to raise any alarm. Any alarm at unknown place might have endangered her life. The absence of an alarm by her at the public place cannot lead to an inference that she had willingly accompanied A-1 and A-2. The circumstances made her a submissive victim and that does not mean that she was inclined and willing to have intercourse with A-1. She had no free act of the mind during her stay with A-1 as she was under constant fear.”

(iv).He further placed reliance in the case of State of Himachal Pradesh vs. Mango Ram 2007 7 SCC 224 ;

(v).State of Maharastra vs. Chandraprakash Kewalchand Jain 1990 1 SCC 550;

(vi).State of Punjab vs. Gurmit Singh and others (1996) 2 SCC 384;

(vii).Vijay @ Chinee vs. State of Madhya Pradesh (2010) 8 SCC 191;

(viii).State of Himachal Pradesh vs. Shree Kant Shekari (2004) 8 SCC 153.”

17.Next submission of learned AGA is that absence of injuries on private parts cannot be a ground to held that the appellant cannot be convicted. He has also placed reliance on the judgments reported in Devinder Singh and ors vs. State of Himachal Pradesh 2003 AIR (SC) 3365; and Deepak vs. State of Haryana 2015 (4) SCC 762;

18.Further reliance has been placed on Moti Lal vs. State of Madhya Pradesh 2008 (11) SCC 20 and has submitted that corroboration is not required from any other evidence including the evidence of Doctor to examine the victim of rape and does not find any sign of rape.

19.Next submission of learned AGA is that while appreciating the evidence of a witness, minor discrepancies on trival matters which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety. In support he has relied on the judgments reported in State of Rajasthan vs. Om Prakash 2007 AIR (SC) 2257 and State of U.P. vs. M.K. Anthony AIR 1985 (SC) 48.

20.Learned AGA has also submitted that even in case of immoral character of prosecutrix, it does not give any right to the accused persons to commit rape on the prosecutrix against her consent. In support, he has relied on State of Maharastra and another vs. Madhurkar Narayan Mardikar 1991 1 SCC 57; where it has been held that even a women of easy virtue is entitled to privacy. He further relied on State of Punjab vs. Gurmit Singh and others 1996 AIR (SC) 1393. Lastly, it has been submitted by learned AGA that Investigating Agency not conducting investigation properly or was negligent cannot be a mere ground to discredit the testimony of the prosecutrix and has submitted that non recovery of weapon of assault (Katta/country made pistol) will not come to the aid of the accused appellant.

21.Having considered the rival contentions advanced by learned counsel for the parties, this Court carefully proceeds to examine the evidence of prosecution witnesses.

22.Considering the evidence of prosecution witnesses, it appears that missing report though was lodged by father of prosecutrix P.W.3 however, FIR has been lodged by brother of prosecutrix who is P.W.1. P.W.1 has stated in his examination in chief that Billeshwar, Krishna Pal and Rudrapal Singh of his village saw the prosecutrix with the appellants Sita Ram and Ramesh. He has further stated that prosecutrix was recovered along with Sita Ram while both of them were sitting at Platform No.1 at Charbagh Railway Station, Lucknow. In his cross examination, he has stated that when the prosecutrix eloped she was 22 years of age. He denied the suggestion that the prosecutrix eloped with Sita Ram on her own accord. He further denied the suggestion that prosecutrix can write letters.

23.P.W.2 prosecutrix Siya Dulari while giving statement under section 161 Cr.P.C. has not levelled any allegation against appellant no. 2 Ramesh. She has clearly stated that appellant no. 2 Ramesh has done no wrong to her. However, while giving statement under section 164 Cr.P.C. before the Court, she made substantial improvement and levelled the allegation of committing rape against appellant no. 2 Ramesh also for the first time. In her statement under section 164 Cr.P.C. she has stated that she was kept in Gonda for 15-16 days and both the accused appellants took her to Lucknow and appellants Ramesh and Sita Ram both were arrested from Charbagh railway station.

24.This statement of prosecutrix given under section 164 Cr.P.C. that both accused were arrested at Charbagh, again changed in the Court while deposing as P.W.2 before the trial court and stated that on 14.03.1994 Ramesh went home and she came along with appellant no. 1 Sita Ram at Charbagh Railway Station where she was found sitting along with Sita Ram only by the police and thereafter Sita Ram was arrested thus contradicted her earlier two statements. In her cross examination, she has stated that while she was sitting in the bus either at Qaiserbagh or Charbagh they were one or two police personnels also, she tried to raise alarm but could not succeed as both the accused persons were armed openly with country made pistols. She further stated that she was kept in Gonda for 15 days and in that house several ladies and children were residing but she was not allowed to meet anybody since the door of the room was locked. She cried but no one heard. She has denied the suggestion that she can write letters. She further denied the suggestion that before occurrence, she wrote several letters to Sita Ram. She denied that she had written love letters to Sita Ram and said that she has never written to Sita Ram, that she could not sleep all night and used to weep. She has further denied the suggestion that she eloped with Sita Ram along with Rs.9000/- golden ear rings, kamar peti and a pair of payal. She has further denied the suggestion that she on her own accord went from her house. She further denied suggestion that she was in love with Sita Ram since long. She further denied that due to this relation ship with Sita Ram, she was beaten several times by her parents. She has also denied the suggestion that after going away from home, she was not kept in Kothri rather directly taken to Lucknow. The evidence of prosecutrix P.W.2 right from the stage of statements recorded under section 161 Cr.P.C. to 164 Cr.P.C. and in deposition before the Court suffers from material improvement. Under Section 161 Cr.P.C. she has not levelled any allegation of rape against appellant no. 2 whereas for the first time in her statement under Section 164 Cr.P.C. she has also roped appellant no.2 and alleged that rape has been committed by him also. In her statement under section 164 Cr.P.C. the prosecutrix has further stated that she came to Lucknow along with appellant nos.1 and 2 both whereas while testifying before the Court below as P.W. 2 she said that Ramesh came back home on 14.3.1994 and she along with Sita Ram came to the Railway Station where Sita Ram was caught whereas in the statement under Section 164 Cr.P.C. she stated that Sita Ram and Ramesh both were caught at Charbagh Railway Station, Lucknow. The inconsistency in the statements of prosecutrix goes to the root of the matter, there is substantial improvement at several stages and material contradictions which cannot be said to be minor contradictions.

25.P.W.3 while deposing before the Court has re-confirmed his statement under section 161 Cr.P.C. and supported the story as stated by him in his missing report. He has not levelled any allegation against the appellant No.2. In his cross examination, he has reiterated and confirmed his earlier stand given in the missing report that the prosecutrix took away Rs.9000/- cash, golden ear rings, kamar peti and one pair of payal along with her. He has not supported the version of prosecutrix that the aforesaid cash and ornaments were kept by her at some place in the house. He has further stated in his cross that 10-12 years back, kothri near a tubewell had fallen down/caved in. He has further stated that he does not know whether his daughter/prosecutrix was of a good character. Upon being asked as to whether prosecutrix had gone on her own accord he has fairly stated that he could not tell this fact.

26.P.W.4 Dr. Kusum Dubey who medically examined the prosecutrix has stated that she has not found any mark of injury on the person of the prosecutrix. In the internal examination, no mark of injury was found on her private parts. Her hymen was old and torn and has stated that she performed one finger test in her vagina. Lastly, she has stated that she could not give any definite opinion about rape on the prosecutrix.

27.P.W.5 in his cross examination, has stated that complainant, his father, mother and uncle in their statements have told him that prosecutrix has gone somewhere along with Rs.9000/- cash, golden ear rings, kamar peti and a pair of payal. He has also stated that he took the statement of Kishan Pal singh, Shiv Pyare and Billeshwar who told him that at 10 o’clock in the night on 25.2.1994 Sita Ram, Ramesh and prosecutrix Siya Dulare were going somewhere. He further stated that at the time when Sita Ram was arrested no fire arm was recovered. He denied the suggestion that Siya Dulare-prosecutrix was recovered from district Gonda and Sita Ram and Ramesh have been arrested from their village.

28.So far as the argument of learned AGA regarding delay in lodging the FIR is concerned, there is no need to go in detail as this ground has not been raised by learned counsel for the appellant. The case law cited by him are distinguishable on facts because in the case of MD. Iqbal and others (Supra) the statement of prosecutrix was duly corroborated with medical evidence (Para 14) and was found worthy of credence. Hence, the conviction of the accused was upheld by the Supreme Court.

29.In Puran Chand vs. State of Himachal Pradesh (2014) 5 SCC 689, it was held that since offence of rape was proved and prosecution version was relied on in view of supporting circumstantial evidence and Section 114-A of Indian Evidence Act was held to be applicable impliedly. In this case the offence of rape has not been proved therefore, there is no occasion of application of Section 114-A of Evidence Act to draw the presumption as to the absence of consent.

30.In Hem Singh vs. State of U.P. (Supra) a minor girl was taken from lawful guardianship of her brother. Her testimony was intact and found trust worthy and the judgment of High Court was reversed.

31.In State of Himachal Pradesh vs. Prem Singh reported in (2009) 1 SCC 420 offence of rape was not established.

32.In Mukesh vs. State of Chattisgarh, (Supra), the prosecution version was supported by P.W. 3, P.W.11 and 12 as well as injury on the fore head of the prosecutrix and further there was ample corroborative material and testimony of the prosecutrix was found to be trust worthy which is not in the present case.

33.In State of Maharastra vs. Madhukar Narain (1991) 1 SCC 57, it was a matter of departmental enquiry and High Court erred in embarking upon re-appreciation of the evidence against the decision in disciplinary proceedings.

34.In Vijay @ Chinee vs. State of Madhya Pradesh, (Supra) it was held that statement of the prosecutrix was found to be worthy of credence and reliable, which required no corroboration and there was statement of doctor P.W.3 who opined that the hymen of the prosecutrix was found to be completely torn and fresh blood was oozing out hence presumption of Section 114-A of Indian Evidence Act was taken that she did not gave her consent. In this case, the testimony of the prosecutrix requires further material in view of inconsistency in her statement.

35.In State of Himachal Pradesh vs. Shree Shekari (Supra) it was a case of minor girl of 14 years old which was made pregnant by her own teacher. The testimony of the victim was found worthy of credence and prosecution was successful in explaining the delay and the Hon’ble Supreme Court in para 21 held as under :-

“It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice.”

36.In State of Maharastra vs. Chandraprakash Kewalchand Jain (Supra), the evidence of prosecutrix was found worthy of credence. The clothes of the prosecutrix were found to be stained with human blood and semen. The semen group found on her clothes tallied with that of accused.

37.In Deepak vs. State of Haryana (2015) 4 SCC 762, the victim was a minor girl. Sexual intercourse was admitted by the accused and rape was proved and therefore, statutory presumption was drawn by the court and also it was duly corroborated with the medical evidence.

38.In State of Himachal Pradesh vs. Mango Ram (2000) 7 SCC 224 the victim was again a minor girl. Rape was proved. The evidence of prosecutrix was corroborated by medical and other evidences also.

39.In State of Punjab vs. Gurmit Singh and others, (Supra) the statement of prosecutrix was found to be intact and was well supported by medical evidence and ample corroboration was available on record to lend further credence to the testimony of the prosecutrix.

40.In MD Iqbal and another vs. State of Jharkhand (Supra) the statement of prosecutrix was corroborated by medical evidence and offence of rape was proved hence, the trial court rightly draw presumption that victim did not consent and this was upheld by the Hon’ble Supreme Court.

41.In Vijay Raikwar vs. State of Madhya Pradesh (2019) 4 SCC 210 in this case chain of circumstance was complete and the accused could not give any explanation with regard to the incriminating evidence against him.

42.In AIR 1985 SUPC 48 State of U.P. vs. M.K. Antony, the accused murdered his wife and children and made extra judicial confession to his friend. Evidence of friend was found reliable and trustworthy and conviction of accused on that basis was held proper.

43.In State of Rajasthan vs. Om Prakash AIR 2007 SC 2257 the accused was convicted under Section 302 IPC on the evidence of solitary witness. The unnatural conduct of the accused had strengthened the prosecution case. Irrelevant details which do in anyway corrode the credibility of a witness cannot be levelled as omissions or contradictions.

44.In Vijay @ Chinee vs. State of Madhya Pradesh (2010) 8 SCC 191; in this case offence of rape was proved. There was no dispute regarding place of occurrence and incident that occurred. Defence failed to establish that it was a case of consent. Medical examination of accused and prosecutrix was conducted next day. The accused persons were not known to prosecutrix therefore, it was held not to be a case of consent.

45.In State of Himachal Pradesh vs. Shri Kant Shikari (2004) 8 SCC 153 the victim was a minor girl raped by her own teacher. Testimony of the victim was found to be trustworthy. It was held that if the Court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence direct or circumstantial which would lend assurance to her testimony.

46.In Devinder Singh vs. State of Himachal Pradesh 2003 SC 3365 the evidence of the prosecturix was not found trustworthy and the accused were acquitted.

47.In Deepak vs. State of Haryana (2015) 4 SCC 762 the prosecutrix was minor. The testimony of prosecutrix was intact and corroborated with medical evidence that rape was committed by accused with the prosecutrix. The accused did not disputed the sexual intercourse and he failed to give any satisfactory explanation under 313 Cr.P.C. nor was able to adduce evidence to rebut the presumption contained under Section 114-A of Evidence Act, 1872.

48.In Moti Lal vs. State of Madhya Pradesh (2008) 11 SCC 20; it was held that if prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy.

49.Therefore, aforesaid judgments relied on by learned AGA do not support his case for the reasons that testimony of the victim/prosecutrix suffers from material inconsistency, substantial improvement and contradiction which go to the root of the matter and therefore, the corroborative material or some material short of corroboration is needed which is not available and no evidence in that regard has been led. The testimony of the prosecutrix does not inspire confidence.

50.The Hon’ble Supreme Court in Mohd. Ali @ Guddu vs. State of Uttar Pradesh (2015) 7 SCC 272 has held as under :-

“Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned Trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be appropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testiony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.”

51.In Hem Raj v. State of Haryana, (2014) 2 SCC 395 it has been held that :-

“10. Faced with such a situation, we were anxious to find out whether there can be any clinching medical evidence suggesting rape, but, unfortunately, the prosecuton has failed to examine Dr.Anjali Shah, who had examined the prosecutrix. The MLR was produced in the Court by P.W.6 J.B. Bhardwaj, Medical Record Technician. This is a serious lapse on the part of the prosecution. We are aware that lapses on the part of the prosecution should not lead to unmerited acquittals. This is, however subject to the rider that in such a situation the evidence on record must be clinching so that the lapses of the prosecution could be condoned. Such is not the case here. The MLR does suggest that the hymen of the prosecutrix was torn. It is also true that the prosecutrix has brought on record FSL report which shows that human semen was detected on the salwar of the prosecutrix and on the underwear of the accused. However, it is difficult to infer from this that the prosecutrix was raped by the appellant. The prosecutrix herself has vacillated on this aspect. It was pointed out that no injuries were found on the prosecutrix. We do not attach much importance to this aspect because presence of injures is not a must to prove commission of rape. But the prosecutrix’s evidence is so infirm that it deserves to be rejected. Her brother has come out with a case that the appellant tried to rape the prosecutrix. He did not say that the appellant raped the prosecutrix. Taking an overall view of the matter, we find it difficult to sustain the prosecution case that the prosecutrix was raped by the appellant. This is a case where the appellant must be given benefit of doubt. ”

52.In Dola vs. State of Odisha 2018 SCC Online SC 1224 it has been held that in para 31 which is reproduced as under :-

31. 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 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.”

53.In Sham Singh vs. State of Haryana 2018 SCC Online SC 1042, it has been held in paras 26 and 27:

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

27. We find that the trial court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape.”

54.In view of the above, law laid down by the Hon’ble Supreme Court law can be summarized as under :

“An accused can be convicted under section 376 IPC on the basis of sole testimony of the prosecutrix, if such testimony is worthy of credence and inspires confidence and is of sterling quality then corroboration from other evidence is not required. But where the statement of prosecutrix suffers from material inconsistency, contradiction and does not inspire confidence, then some other material may be even short of corroboration from other evidence collected during investigation is necessary.”

55.After going through evidence of the prosecution witnesses, it appears that complainant, his father, mother and uncle as well as Investigating Officer all have stated that prosecutrix went away with Rs.9000/-, golden ear rings, kamar peti and one pair of payal has gone somewhere. Only the prosecutrix has denied this fact. Statement of the prosecutrix at every stage has improved and changed and has contradicted her earlier statement. The testimony of prosecutrix suffers from material inconsistency. The law in this regard is settled that on sole testimony of the prosecutrix, conviction can be based and there is no need for any corroborative material provided the testimony of the prosecutrix is worthy of credence.

56.Here in this case, the statement of prosecutrix is highly improbable and inconsistent in view of the fact that while she was kept at Gonda for 15 days in a house inside one room which was locked from outside and accused persons only used to come in night, during day time she had ample opportunity to raise alarm and it appears quite improbable that inmates of the house which included several ladies and children did not hear her alarm for a period of 15 days. There is material improvement in the testimony of the prosecutrix from her statement under Section 161 Cr.P.C. to Section 164 Cr.P.C. and then in Court as P.W.2. At one place, she has not levelled any allegation against appellant no.2 whereas in her statement under section 164 Cr.P.C. for the first time, she has alleged commission of offence by him. In her statement under Section 164 Cr.P.C. she has stated that both the appellants took her from Gonda to Lucknow and at Charbagh Railway Station, Lucknow. Both of them were arrested whereas in deposition before the Court, she says that appellant no. 2 on 14.3.1994 came back to his house and only the appellant no. 1 brought her to Lucknow was arrested by the police at Charbagh Railway Station Lucknow.

57.The statement of father of the prosecutrix P.W.3 that the alleged Kothri in which she was kept for three days in the same village had already fallen down 10-12 years back coupled with the fact that the Investigating Officer has not even visited/prepared the site plan of the said Kothri neither any investigation regarding the kothri or the house at Gonda where the prosecutrix was allegedly kept for 15 days has been done. No statement of the inmates of the house at Gonda has been taken by Investigating Officer and also the most important and independent witnesses namely Billeshwar, Krishna Pal, and Shiv Pyare who saw the prosecutrix in the company of appellants on 25.02.1994 have not been produced before the court rather they have been withheld by the prosecution are enough to demand some more material than the sole testimony of the prosecutrix to convict appellant no.2.

58.In the present case, the failure of Investigating Agency not to examine independent witness before the court who saw the prosecutrix in the company of appellants in the night of 25.2.1994 namely Billeshwar, Shiv Pyare and Rudra Pal Singh, not investigating the inmates of the house at Gonda where the prosecutrix was allegedly kept for 15 days and raped by both the appellants, not conducting any investigation of kothri which according to evidence of P.W.3 had already fallen down/caved in 10-12 years back and not conducting investigation of house at Gonda non preparation of site plan of the house at Gonda and that of kothri, non recovery of fire arm from either of the accused persons and improbable story set up by the prosecutrix that the accused persons were carrying arms in open, in a bus where police personnel were also there, does not inspire confidence in prosecution case.

59.There are two places where the rape is alleged to have been committed. First the Kothri situated in the village of prosecutrix where she was kept for three days and was subjected to rape for all three days. Second is the house at Gonda where the prosecutrix was kept for 15 days in a room locked from outside. P.W.3 in his statement has said that Kothri in the village had already fallen down 10-12 years back coupled with the fact that Investigating Officer has not visited there, not made any investigation of Kothri, has not mentioned this into the site plan, not making any recovery from there makes this first place of occurrence doubtful.

60.So far as the second place of occurrence i.e. house at Gonda where the prosecutrix is said to have been kept and raped for fifteen days, again no investigation regarding this place has been done. The Investigating Officer has not even visited this place. The inmates (ladies and children) have not been examined, no site plan of this place has been made, nothing has been recovered and therefore, this second place also becomes doubtful. The medical examination of the prosexutrix does not corroborates the prosecution story. This lack on the part of Investigating Agency in not producing corroborative material and independent witnesses of fact who in their statement under Section 161 Cr.P.C. had stated that they saw the prosecutrix in the night on 25.2.1994 with the appellants at Nautanki (operatic theatre performance in northern India) as they had also come to see the theatre performance, causes serious doubts about the truthfulness of the prosecution case in view of the law laid down by the Hon’ble Supreme Court in the cases of Mohd. Ali @ Guddu vs. State of Uttar Pradesh (Supra) ; Hem Raj vs. State of Haryana (Supra); Dola vs. State of Odisha (Supra); Sham Singh vs. State of Haryana (Supra). Thus, for the reasons stated above, I am of the opinion that prosecution has failed to prove the offence of rape against appellant No.2 beyond reasonable doubt.

61.Since the rape in this case could not be proved beyond reasonable doubt therefore, there is no occasion to draw presumption under Section 114-A of the Indian Evidence Act regarding absence of consent of the prosecutrix.

62.To prove the charge under section 366 IPC prosecution has to prove that prosecutrix was abducted and further the abduction was for the purposes mentioned under section 366 IPC. The testimony of the prosecutrix suffers from improvement, improbability and not trustworthy. Prosecutrix was major and according to statements of P.W.1, P.W.3 and P.W.5 she went away along with Rs.9000/- cash, golden earrings kamar peti and other jewellery although her marriage was fixed shortly, this shows that she willingly went away. Prosecutrix was seen by the independent witnesses with the appellants at Nautaknki (operatic theatre performance) in the night of 25.02.1994 also shows that the prosecutrix went away willingly. The fact that these independent witnesses namely Billeshwar, Shiv Pyare and Rudra Pal Singh have not been produced by the prosecution before the Court has further weakened the case of prosecution. For these reasons, I am of the view that the prosecution has also failed to prove the charge under Section 366 IPC. Therefore, the finding recorded by the learned Trial Court in this regard is erroneous and is hereby reversed.

63.Thus, in view of the aforesaid discussions, the findings recorded by the trial court on the basis of testimony of the prosecutrix cannot be affirmed and the same is reversed.

64.In view of such evidence led by prosecution, the discussions made hereinabove, it will not be proper to convict the accused appellant hence, the judgment and order dated 13.02.1997 passed by the trial court is set aside.

65.Accordingly, the appeal is allowed.

The accused appellant is directed to be released from jail, if not wanted in any other case.

Order Date: 14.01.2020

Ps