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Soban Singh Alias Ushtaj Ji vs State Of Uttarakhand on 16 March, 2018

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

Criminal Appeal No. 425 of 2014

Surendra Sharma @ Diliwala Surendra
Sharma @ Diliwala .. Appellant
Versus

State of Uttarakhand ..Respondent

With

Criminal Jail Appeal No. 25 of 2014

Trilok @ Tillu .. Appellant
Versus

State of Uttarakhand ..Respondent

With

Criminal Jail Appeal No. 29 of 2014

Soban Singh @ Ushtaj Ji .. Appellant
Versus

State of Uttarakhand ..Respondent
With

Criminal Jail Appeal No. 38 of 2016

Surendra Sharma Alias Delhiwala .. Appellant
Versus

State of Uttarakhand ..Respondent

Present: Mrs. Anjali Nauliyal, Km. Gauradevi Dev and Mrs.
Meena Bisht, Legal Aid Counsel for the appellant in
connected appeal.
2

Mr. Pratiroop Pande, A.G.A. along with Mr. Sachin
Panwar, G.A. for the State of Uttarakhand.

Reserved on : 15.02.2018
Delivered on : 16.03.2018

Hon’ble Sharad Kumar Sharma, J.

These are four connected Criminal Appeals,
which arises out of impugned judgment of conviction
u/s 376(2) (N), which was registered as FIR No. 93 of
2011, before SHO, Kotwali Dehradun. Being
Criminal Appeal No. 425 of 2014, “Surendra Sharma
@ Diliwala Surendra Sharma @ Diliwala Vs State of
Uttarakhand”, arising out of the same Sessions Trial
No. 117 of 2011. Criminal Appeal No. 425 of 2014
would be the leading case and would cover an
adjudication of Criminal Jail Appeal No. 25 of 2014
“Trilok @ Tillu Vs. State of Uttarakhand”, Criminal
Jail Appeal No. 29 of 2014 “Soban Singh @ Ushtaj Ji
Vs. State of Uttarakhand”, and Criminal Jail Appeal
No. 38 of 2016 “Surendra Sharma Alias Delhiwala
Vs. State of Uttarakhand.”

2. All the appeals arise out of common judgment of
conviction dated 11th June 2014, as rendered by 4th
Additional District and Sessions Judge, Dehradun in
Sessions Trial No. 117 of 2011 “State Vs. Surendra
Sharma and others”. By the judgment impugned, the
learned Trial Court had convicted the appellants u/s
376 (2) (N) of Indian Panel Code and they have been
3

sentenced to undergo ten years rigorous
imprisonment and with a fine of Rs. 5000/- each,
and in an event of failure to deposit the amount
payable towards fine, the accused appellant had
been further sentenced to undergo two months of
simple imprisonment.

3. Brief backdrops of the case are that one Mrs.
Rani, complainant and the mother of the prosecutrix
Ritu had lodged an FIR before SHO, Kotwali Nagar,
Dehradun on 20th March 2011 at about 9:05 a.m.
(paper 63 ka), wherein a brief set of allegation as
narrated in the FIR was, that she submitted that her
daughter Ritu i.e. the prosecutrix was married about
three years back with one Mr. Deepu, alias Pappu,
who was initially working in Hotel Parmar and for
about last four months, after leaving the prosecutrix,
is said to have gone to Delhi for work.

4. It was alleged by the complainant (Rani), the
mother of the prosecutrix, who had submitted in the
FIR that on 19th March 2011, when her daughter i.e.
the prosecutrix, who used to work as maidservant in
the home of one Mr. Laxmi, when she was returning
for home after work at about 8:30 p.m., she was
apprehended by Mr. Surendra Sharma alias Diliwala
near Tilak Road, Dehradun.

4

5. It was submitted by her that Mr. Surendra
Sharma could be identified by the prosecutrix,
because he too was working in hotel Parmar. The
complainant submitted that Surendra Sharma is
said to have told her daughter Ritu i.e. the
prosecutrix, that her husband Deepu, whose
whereabouts were not known for about last four
months, has come to Hotel Parmar and is sitting
there at the reception of the Hotel and hence he
asked the prosecutrix to accompany him to Hotel
Parmar to meet her husband.

6. It is also the case of the complainant (Rani) as
developed in the FIR that she, the prosecutrix
believing him, accompanied Surendra Sharma and
went to hotel Parmar, but there she was taken up to
a room on the top floor by force from the rear side of
the hotel. On reaching at the top floor, she was taken
in a room by Surendra Sharma, over where, other
co-accused, namely Trilok @ Tillu and Sohan Singh
were already present in the same room. It was also
the case of the complainant that when prosecutrix
reached in the room, the same was bolted from
inside and thereafter, all the accused commit the
offence of rape on her one by one, whose
identification could be made by the prosecutrix,
because all of them are said to be working in hotel
Parmar.

5

7. The complainant contended that on being taken
to the room Surendra Sharma took out the shalwar
of the prosecutrix and he committed rape on her and
thereafter other accused committed the offence on
the prosecutrix throughout the night one by one.
Complainant Smt. Rani informed that the
prosecutrix Ritu told her that she somehow managed
to escape from the hotel in a sub conscious state of
mind at about 5:00 am, but before escaping from the
hotel at about 4:30 am, it is her case that she had
given a call to the ambulance No. 108, from the
mobile of one of the accused person. The statement
by her as PW1 in that regard is as – **eSaus vfHk;qDr ds eksckbZy
ls Qksu fd;k FkkA** at about 4:30 am, which has taken her
to the Doon Mahila Hospital.

8. In the FIR, the complainant submitted that
when she learnt about the incident from a lady who
lives in the same locality where the complainant
resides, who works in the hospital, she informed her
that her daughter has been admitted to the Doon
Mahila Hospital, she rushed to the hospital and then
she contends that the entire story was narrated by
her daughter i.e. the prosecutrix and after that she
had lodged the FIR at about 9:05 am. The
complainant submitted that the accused persons,
taking advantage of the fact that her daughter was
slightly mentally retarded, and was suffering from
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some mental infirmities, the accused have taken the
advantage of that and had committed the offence of
rape. Consequently, the FIR was registered as FIR
No. 93 of 2011 u/s 376(2) (N) of the Indian Panel
Code. It was when the Sessions Court found the case
to be triable vide its order dated 12th July 2011
committed the case for its trial and the case on being
registered was transferred to the court of 4th
Additional District Judge, Dehradun, for its trial.

9. On being taken to the hospital, medical legal
examination was conducted on the prosecutrix by
Dr. Sujata Singh (PW4), who is shown to have
conducted the medical examination on 20th March
2011 at about 11:50 a.m. at District Female
Hospital, Dehradun. At the time of medical
examination, it is reported by the doctor that she
was in a conscious state and gave her consent to be
examined internally. On conducting medical
examination, Dr. Sujata Singh has opined that the
prosecutrix was a grownup lady, having all basic
biological features as expected to exist in a grown up
female; for example, that of breast and pubic hair, all
were well developed. It was observed in the medical
report that during the course of examination that no
mark of injury was seen on the external and internal
part and even on the private parts of the body. There
had been no discharge, the vagina easily admits two
7

fingers and there was no bleeding. The vaginal smere
was prepared and was sent for spermatozoa
examination. The X-ray of knee, joint and elbow was
sent for the purpose of determination of age,
supplementary report, forensic examination report
was called for.

10. On 7th April 2011, a supplementary medical
report was submitted by Dr Sujata Singh, the
medical officer, who apart from reiterating the outer
structure of the female has given an opinion/report
to the following effect:-

(i) Vaginal smere negative for spermatozoa;

(ii) On conducting the x-ray of other parts of the
body, the age of the prosecutrix was determined to
be above 18 years

11. On an overall scrutiny of the medical report as
well as the supplementary medical report, the doctor
has opined “there is no evidence of forced sexual
intercourse.”

12. The evidences which were collected from the
place of occurrence were sent to the Forensic Science
Laboratory (FSL), Uttarakhand vide, forwarding
Memo letter No. nil dated 8th April 2011 for the
purposes of examination of the presence of semen on
the exhibits, which was received through the Head
8

constable, 53CP Sushant Kumar Chauhan. The in-
charge of the biological division of the FSL,
Uttarakhand, Dr. Manoj Aagarwal, Senior Scientific
Assistant found that the semen was detected on
(exhibit 1) i.e. a stained cream colour salwar with
black round prints worn by the victim on the day of
commission of offence.

13. The presence of spots of semen were also shown
to have been found. On exhibits 2 and 3 i.e. the
undergarments of Trilok and Sobhan and also on
exhibit 4 and exhibit 5, which were the red and
yellow colour covers of the mattress and red and
yellow colour printed cover of pillows.

14. The Investigating Officer submitted the charge-
sheet on 04.06.2011 against the accused persons.
The accused persons in their written statement u/s
313 denied the allegations as leveled by the
prosecutrix and the incident of commission of an
offence u/s 376(2) N. The appellant apart from
denying the incident had also denied that fact of
collection of exhibits in their presence, which were
sealed and send for Forensic Science Laboratory
examination. Besides this, the appellants submitted
that they have been falsely implicated by the
prosecutrix by developing the incident of rape as she
had thought and had been made to believe that her
9

husband was removed from job due to them, hence
the entire story as developed by the prosecutrix was
to take revenge.

15. The prosecution in support of their case
recorded the statement as PW1 i.e. of the prosecutrix
Ritu; PW2, the complainant Rani (mother of the
prosecutrix); PW3, Jayendra, the owner of the Hotel;
PW4, Dr. Sujata Singh; PW5, Kuldeep Singh, driver
of the ambulance 108; and testimony of other
witnesses.

16. The prosecution in support of their case had
also relied upon the documentary evidence i.e. the
exhibits of fard baramdagi, five exhibits of the
clothes collected from the place of occurrence and
sent for FSL examination, arrest memo etc. The
defence, apart from recording of the statement u/s
313, while denying the occurrence of the said
incident, had also placed reliance on the documents,
filed through the list of three documents vide paper
number 33 Kha, one document each vide paper No.
71 Kha and 73 Kha. The learned 4th Additional
District and Sessions Judge, Dehradun vide its
judgment of conviction and sentence conviction
dated 6th June 2014, held the accused persons to be
guilty of the offence committed u/s 376(2) (N) of IPC,
and by virtue of the order dated 11th June 2014 had
10

sentenced them to undergo rigorous imprisonment of
ten years each and imposed a fine of Rs. 5,000/-
each and in an event of failure to pay fine within
time provided they had been directed to further
undergo simple imprisonment for period of two
months. Consequently, the present appeal dated 23rd
December 2014, filed by the accused, challenging
the judgment and sentence dated 11th June 2014.

17. In the grounds taken, the appellant submitted
as under:-

(i) That the judgment made is based on misreading
of the law and facts available on record;

(ii) The grievance of the appellant is that all
incriminating circumstances have not been put to
the appellant u/s 313 of Cr.PC, and there has been
an improper appreciation of evidence on the record

(iii) As, as per the averments in the FIR, Mrs. Rani,
the complainant and the mother of the prosecutrix
admits that the prosecutrix was not in a normal
state of mind; hence her statement as to be read
with caution.

(iv) In the ground, it is submitted that there is no
direct evidence on record to show as to how and
when the information about the incident travelled to
the complainant about the incident in next morning
11

i.e. on 20th March 2011 except the oral testimony of
PW2, about the fact that the information was given
by a lady who lives in the neighbour hood and works
in the hospital, she is said to have disclosed the fact
about her daughter being admitted to the hospital.
Mrs. Rani, the complainant though she has not
revealed the said fact in the FIR, disclosing the
source of knowledge.

(v) The Medical report, as well as the Forensic
Science Laboratory Report do not support the
prosecution story as according to the medical report,
the vaginal smear was found negative, which creates
doubt about the commission of an offence of rape.

(vi) It is the case of the appellant that according to
the statement of PW5, Kuldeep Singh, the driver of
the ambulance 108, he pleads that he has received
the phone call at 5:30 am from the call centre to the
effect, that prosecutrix who is said to be suffering
from abdomen pain is standing near Parmar Hotel,
wherein the prosecutrix has stated to him too, that
she was suffering pain in her abdomen, which may
not infer the commission of offence itself.

(vii) It is the case of the appellant that the first
statement after occurrence of the incident, which
has come was before the driver of the ambulance
108 to him she, did not disclosed the fact of the
12

incident of commission of rape, it reflects a report of
pain in abdomen, because even on her call to the call
centre it is not her case that she informed that she
had been raped, when this was the first statement
divulged by her after the incident.

(viii) If the medical report and the forensic science
laboratory report are seen together, the blood stains,
the stain of the semen were not compared with that
of the samples of appellant to substantiate the case.

(ix) The Medical report does not support the story of
the prosecution.

(x) As per the appellant, there is a doubt about the
propriety of the proceedings because the appellant
was not got medically examined and the potentially
test was not conducted nor the DNA test.

(xi) It is the case of the appellant in defence that the
alleged time of occurrence being that of 8:30 p.m, it
is a time where normally the place where hotel is
situated in a crowded area. The incident which is
said to have continued for whole night, it must have
been overheard by people around, no such case has
been developed or substantiate by the prosecutrix.

18. It is not the case of the prosecution that at the
time when the offence was being committed, there
was retaliation by the prosecutrix or even it is not
13

apparent from the statement of PW1, that she had
retaliated, because had it been so, it ought to have
been recorded on her statement and could have also
revealed from the medical report too which shows
that there was no external injuries or abrasions.

19. Heard learned counsel for the parties and
having gone through the records meticulously in
precision, this Court finds following glaring
circumstances, which are revealed from the records:-

(i) The backdrop under which the case was tried by
the learned trial Court, it is admitted that the
prosecutrix was married earlier with one Mr. Sanjay
and from the said wedlock, a daughter was born, but
at later stage, they were separated and the
prosecutrix was living separately with her mother.

(ii) Later on, it is also admitted that she solemnized
the second marriage with Deepu alias Pappu, whose
whereabouts were not known to her and it is also
admitted by her that she works as maidservant.

20. From the above circumstances, what could be
revealed is that it is not that the prosecutrix was an
introvert girl rather looking to the previous
matrimonial history, she was conscious of her right
and the legal consequences of the disputes and that
is why after being separated from Sanjay (first
14

husband) she voluntarily, entered into a second
marriage with Deepu alias Pappu, meaning thereby,
the prosecutrix was conscious of her rights and was
aware of worldly affairs.

21. According to the allegations as made in the FIR,
the complainant’s case is that as informed to her
that her daughter was apprehended by Mr. Surendra
Sharma at 8.30 p.m. on 19th March 2011 and was
taken to the Hotel Parmar on the pretext that her
husband Deepu had come there. Let this be the
situation and true according to her, and the story as
developed by the complainant, there is nothing on
record brought by the defence, the complainant i.e.
the mother of the prosecutrix have ever lodged any
missing report of the prosecutrix till lodging of FIR
for the first time at 9:05 a.m.

22. It is quite a normal reaction for any parent that
when a young daughter, who goes out to work,
doesn’t return in the late hours of the evening,
beyond the normal time of her return after work,
normally the parents would wait for the return for a
reasonable period, but later on further steps are
expected to be taken to know about the whereabouts
of the young daughter, this would be a natural
corollary, which would follow. In this case, either in
the FIR or in the statement of PW2, there is no such
15

averment as to what action she took when her
daughter didn’t returned after work after 8:30 p.m.
or beyond a reasonable time of return. Admittedly,
there is nothing on records to show that any efforts
have been made to lodge any missing report on 19th
March, 2011 when the prosecutrix goes missing after
8.30 p.m., which creates a doubt about the incident,
as to whether it was forced or by consent.

23. Rather there is a contrary statement made by
PW1, the prosecutrix pertaining to her husband, as
to whether he was missing or he has gone to Delhi
for some work, because admittedly, according to the
respective statements of PW1 (prosecutrix) and PW2
(complainant), the whereabouts of Deepu, the
husband of the prosecutrix was not known. It is an
admitted case of the prosecution that Deepu was
working in Hotel Parmar, where the accused persons
were also employed. Even there happens to be no
missing report was ever lodged by the prosecutrix,
giving the information about her husband Deepu
being missing, nor there is any FIR in that regard,
which too, may have some other reasons being to be
attributed to the incident.

24. Even otherwise also, if the statement of PW1 i.e.
the prosecutrix is scrutinized, it could be seen that it
is not her case that when she met Surendra Sharma
16

at Tilak Road, she was forced to accompanying him
to Hotel Parmar. Rather, it is an admitted case that
the prosecutrix, on being informed by Surendra
Sharma about the presence of her husband at the
reception of Hotel Parmar, she had voluntarily
accompanied Surendra Sharma, without any
resistance. It has also come on record that when
Surendra Sharma apprehended the prosecutrix on
19th March, 2011 at 8.30 pm from Tilak Road,
Dehradun, and when he informed the prosecutrix
that her husband is sitting at the reception of the
hotel Parmar, and when the prosecutrix was being
taken to enter into the hotel Parmar from the rear
side, the prosecutrix must have had expressed a
doubt, as to why she is being taken to hotel Parmar
from the rear side, because in her statement, she
stated that Surendra Sharma had informed her that
her husband is sitting at the counter of the hotel
Parmar. Relevant part of her written statement is
quoted hereunder:-

**eqs jkf 8-30 cts fnYyh okyk lqjsUnz feykA
mlus eqs crk;k fd rqEgkjk ifr okil vk x;k
gS og ijekj gksVy ds dkmUVj ij cSBk gS**

25. Yet, the prosecutrix has gone upto the top floor
of the hotel Parma without expressing any doubt
about the intentions of the accused. On scrutiny of
17

the statement of PW1, the prosecutrix submitted
that when she entered into the room, she found that
other co-accused were already sitting there and
Surendra Sharma locked the door from inside and
took out her salwar. It is not her case ever that she
objected or posed resistance when Surendra Sharma
was taking out her salwar. It is not her case ever
that she objected or posed resistance when Surendra
Sharma was taking out her salwar.

26. It is not the statement of prosecutrix that
Surendra Sharma, has exerted pressure or threat
while he was removing the salwar of the prosecutrix,
nor it is her case she opposed or retaliated and even
it is not her case before Court below that other co-
accused had assisted Surendra Sharma in taking
out of the salwar of the prosecutrix. She further in
her statement as PW1 has recorded the following
statement which is quoted hereunder:-

**;g eqs ihNs ds jkLrs ls gksVy esa dejs ds mij
okyh eafty esa ys x;kA ogkWa rhu yM+ds] fVYyw]
fcgkjh o “kksHku dejs esa mifLFkr Fks] fQj ljsUnz
us esjh lyokj mrkjh**

27. According to the statement of the prosecutrix,
the commission of the said offence is said to have
been committed throughout the night. In her
statement, as PW1, she submitted that each of the
18

accused had been committing the offence one by one
from time to time throughout the night of 19th March
2011 till 4.30 am of 20th March 2011. For the period
approximately from 8.30 pm to 4.30, am which is a
sufficient long period and it was quite expected that
if the prosecutrix was unwilling and non-consenting,
she should have made an effort to retaliate or raise
an alarm, or should have made an effort to escape,
but there is nothing as such on record or incidence
or in her statement that ever since 8.30 pm till 4.30
am, she has ever raised an alarm about the incident
to attract the passerby or inmates of the hotel or
made effort to escape.

28. If the chronology of the commission of offence is
considered from the statement of the prosecutrix, it
is that immediately after Surendra Sharma had
removed her salwar, she alleges that he had
committed rape. What is remarkable here is that it is
not her case that at the time when Surendra Sharma
was committing the offence, she was caught hold by
anyone or by the other co-accused, because had
there not been a consent, it is practically impossible
to commit a rape by force, and that too, when the
allegation of holding up at the time when Surendra
Sharma was committing offence is not part of the
statement or the FIR by the prosecutrix or the
complainant. The impugned judgment remarks while
19

considering the statement of the prosecutrix that one
of the accused has held her hands and legs, which is
contrary to the statement of PW1. Because it is her
case that all accused were working in Hotel Parmar
and known to her, she could have easily identified
him, and could have exclusively assigned their role
in commission of offence by other co-accused,
named as to who caught hold of her when offence
was being committed.

29. There is a doubt about the occurrence of the
incident, for the reason that in the statement of
PW1, she stated that she has given a call to
ambulance 108 from the mobile of one of the
accused persons. Even this story is unbelievable that
an accused person, who has committed the offence
of rape will provide his mobile or if taken by force
would not resist the prosecutrix from making a call
from his mobile to enable the prosecutrix to give a
call to ambulance 108 to attend her. The relevant
part of the statement of the prosecutrix is quoted
hereunder:-

**eSaus vfHk;qDr ds eksckbZy ls Qksu fd;k Fkk**

30. In her statement as PW1, she has further
recorded that after the phone call, when the
ambulance came, she was in a pathetic physical
condition, standing on the road in front of the hotel
20

waiting for 108 ambulance, and she was taken to the
hospital and medically examined, where her mother
came after receiving the information from a lady,
who is said to work in the hospital. According to the
evidence on record and even according to the
statement of the prosecutrix as recorded in her
cross-examination, she admits the fact that the
mobile phone, from which she gave a call was
deposited in the police station, but the said mobile
phone was never produced as an exhibit, nor any
document pertaining to deposit of the mobile phone
in the police station was produced. She, in her cross-
examination she had stated that apart from the call
given to the ambulance 108, no other call was made
by her from the said mobile phone or from any other
mobile, and there had been no other source of
information on which she is said to have relied for
giving the first information of the incident.

31. It is not the case of the prosecutrix that after
medical examination being conducted by Dr. Sujata
Singh, she has gone back to the place of occurrence.
Hence the statement recorded by her pertaining to
the preparation of fard baramdagi in her presence is
doubtful, as according to her own case, she was
taken to hospital by 108 Ambulance, where she had
undergone medical examination and treatment.

21

32. According to the statement, as recorded u/s 161
Cr.PC, she submitted that she often used to visit the
hotel. If this be the admitted case, the reaction which
would follow is that she ought to have had a doubt,
when she was being taken inside the hotel from the
rear side. The story of the prosecution is highly
unbelievable also, because when it is the case that
when she was being taken to the hotel from the rear
side, she in her statement u/s 161, submits that she
was being dragged by Surendra Sharma on the
staircases and by one hand, Surendra Sharma has
placed his other hand on mouth of the prosecutrix so
that she may not raise an alarm. Even if this is
presumed to be accepted, she in her statement had
also further submitted that when she reached at the
room, Surendra Sharma removed his hand from the
mouth of the prosecutrix and knocked the door,
which was opened by the other co-accused, who
were already sitting in the room at least at time she
could have raised an alarm and nothing stopper her
from doing so.

33. She admits that for some moment, her mouth
was left free, but she didn’t shout, hence there was
no reason as to why she had not shouted to draw the
attention of the inmates and the persons available in
and around the surrounding area. She further,
rather she had admitted in her statement that when
22

the accused person had removed his hand from her
mouth, she had never shouted. The relevant part is
quoted herein under:

**esjs eqag ls gkFk gVk;k fQj dejs dk
njokts dks [kV[kVk;k rks vUnj cSBs rhu
vfHk;qDrx.k us eqs vUnj ?klhV fy;k x;k
;g dguk lgh gS fd dqN nsj ds fy, eqag
[kqy x;k Fkk**

34. The prosecutrix admits that the room had
window, she admits that during the commission of
act, there had been physical altercations. Yet, there
was no sign of any shouting or any sought of
commotion taking place in the room. She submitted
that all the four accused have physically assaulted
her. But then, according to medical report, there is
no sign of injury, either internal or external.
Whereas, on the other hand, in her statement, she
has submitted that she has suffered grievous
injuries which were open wound and were bleeding.
This statement is contrary to the medical report at
least any ordinary medical officer would have given
report of open injuries, which does not show any
injury in the body of the prosecutrix. There is
another remarkable feature which creates a doubt
about the occurrence of the offence is pertaining to
the story of the call made by the prosecutrix to the
23

ambulance 108 from the mobile phone of the
accused. In continuation thereof, in her cross-
examination, she has stated that she has given a call
to the 108 ambulance from the room itself at 4:30
am. Relevant part of the written statement is quoted
hereunder:-

**———————eSa 108 okyksa dks dejs ls gh Qksu
dj fn;k Fkk**

35. Even this story could not be believed, because
when four accused persons are present there in one
room, who are said to have committed rape on her,
how she would manage to make a call and that too
from the mobile of one of the co-accused and that
too, while she was in the room itself along with four
accused male person, who were enough in numbers
to overpower her.

36. On scrutiny of the statement of PW5, the driver
of the ambulance 108, he has submitted that he has
received a call from the call centre at 5 O’clock,
wherein he was informed that the prosecutrix has
informed on phone that she is suffering from an
abdomen pain and she stated that she is standing
near the railway station. No lady, who has suffered
the wrath of rape, after escaping from the place of
occurrence from the clutches of accused person who
had committed rape on her, would stand in-front of
24

hotel Parmar itself awaiting the arrival of ambulance,
that too, when she was conscious of the fact that the
accused from whose illegal confinement she has
managed to escape are present in the hotel itself
from where she has escaped from their clutches.

37. The time at which she gave call to ambulance
108 is also relevant, because in statement of PW1
she made a statement that she had given a call at
4:30 am from cell of one of the accused and she
states that she escaped from the hotel at 5:00 am,
whereas the story in the FIR was that she gave call
to ambulance after escaping from the hotel. This too
does not repose trust and belies the prosecution
story.

38. The story of the prosecutrix, even otherwise
seems to be unbelievable because at the time when
she was taken to the hospital by Ambulance 108,
and when she was being medically examined at
11:50 am, which was a time much after the lodging
of the FIR at 9:05 am, there had been no justified
reason assigned by the prosecutrix as to why the
police was not informed about the incident, before
she went to hospital though it was medico legal case
when medical examination was conducted. On
perusal of report it does not show as to by whom she
was brought to hospital for medical examination,
25

and in such type of cases where doctor is conscious
that she was being medically examining for a case of
rape victim, it becomes incumbent to inform the
police first, which was not done in the instant case.

39. Right from inception of the proceedings by way
of lodging of the FIR, phone call to the Ambulance
108, her medical examination on 20.03.2011, it has
been a consistent case that the accused persons
were known to the prosecutrix as they too had been
admittedly working in same hotel Parmar, and that
the prosecutrix often used to visit the hotel, but on
scrutiny of the evidence and respective cases at no
point of time the appellants were medically examined
or any potentiality test was conducted on them nor
any DNA test was held, thus their direct involvement
in the incident of 19.03.2011 had not been
established beyond doubt. Even otherwise also the
prosecution has failed to adduce any independent
witness to establish the commission of offence.

40. The respondent to the appeal through its
Government Advocate had strongly harped on the
FSL report dated 31.05.2011 Paper Ex. Ka 21, which
shows that samples of clothes had show that semen
spots was detected on Exhibits 1,2,3,4 and 5, but
the presence of semen on Exhibits 2,3,4 and 5 might
be possible, but its presence may also be due to
26

natural biological reasons, its presence does not
establish commission of rape itself. There is another
reason if the prosecution was trying to read the FSL
in support of their case about the commission of the
offence, and in particular in case where the offence
complained is of u/s 376(2)(N) it was all the more
necessary from prosecution to hold medical
examination and get DNA test conducted of all the
accused independently, so as to arrive to a
conclusion as to which of the co-accused is actually
responsible whose semen was shown to be present.
In the absence of the same, no inference can be
drawn by a common analogy until and unless
specific allegation is established against the accused.

41. On scrutiny of judgment its apparently seems
that learned Trial Court of 4th Additional District and
Sessions Judge, Dehradun, had been swayed by the
fact that in accordance to the medical report it has
observed that the vagina was easily permitting
insertion of two fingers, and hence the medical
report has opined that the prosecutrix was habitual
of sexual intercourse. Learned Sessions Court, while
considering the impact of the judgment rendered by
the Hon’ble Apex Court as reported in 2011 (2) SCC
550 “State of Uttar Pradesh Vs. Chhotey Lal” has
laid down that merely because a female was a
habitual to sexual intercourse, will not make the
27

testimony of the prosecutrix unbelievable. In the said
case, the Hon’ble Apex Court was dealing with a
situation, where the prosecutrix was recovered after
three weeks and there was no sign of forcible
intercourse which could persists after such a long
period. Same is not the situation in the instant case
in which the prosecutrix herself had immediately
gone to hospital for getting medical examination
done on her.

42. In the present case the incident which is said to
have been committed is that in the night of 19th
March 2011, the prosecutrix admits the fact that she
was medically examined on the next day itself i.e. on
20th March 2011 at 11:50 a.m. It is quite obvious,
that when the prosecutrix was a married lady, she
bound to be medically reported as was habitual to
sexual intercourse, but that is not the solitary
ground which could have been extracted for the
purposes of the instant case for the reason that the
Hon’ble Apex Court has propounded that if there are
other sufficient material available, there need not to
be any corroboration of testimony of the prosecutrix,
if it is found reliable emphasis has been laid on the
reliability of the testimony of the prosecutrix. But in
the instant case, looking to the evidence and the
manner in which its appraisal has been made by the
learned Sessions Court it creates a doubt about the
28

forceful commission of an offence u/s 376 of the IPC
which reads as under:

“Section 376 – Punishment for rape

(1) Whoever, except in the cases provided for in sub-section (2), commits
rape, shall be punished with rigorous imprisonment of either description for
a term which shall not be less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.

(2) Whoever,–

(a) being a police officer, commits rape–

(i) within the limits of the police station to which such police
officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer’s custody or in the
custody of a police officer subordinate to such police officer;

or

(b) being a public servant, commits rape on a woman in such public
servant’s custody or in the custody of a public servant subordinate
to such public servant; or

(c) being a member of the armed forces deployed in an area by the
Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home
or other place of custody established by or under any law for the
time being in force or of a women’s or children’s institution,
commits rape on any inmate of such jail, remand home, place or
institution; or

(e) being on the management or on the staff of a hospital, commits
rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position
of trust or authority towards the woman, commits rape on such
woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of
age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman,
commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical
disability; or

(m) while committing rape causes grievous bodily harm or maims
or disfigures or endangers the life of a woman; or
29

(n) commits rape repeatedly on the same woman, shall be punished
with rigorous imprisonment for a term which shall not be less than
ten years, but which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of that person’s natural
life, and shall also be liable to fine.”

43. The Hon’ble Apex Court in the case of State of
U.P. v. Chhotey Lal (Supra) in its para 22 held as
under:

“22. In the backdrop of the above legal
position, with which we are in respectful
agreement, the evidence of the prosecutrix
needs to be analysed and examined carefully.
But, before we do that, we state, as has been
repeatedly stated by this Court, that a woman
who is a victim of sexual assault is not an
accomplice to the crime. Her evidence cannot
be tested with suspicion as that of an
accomplice. As a matter of fact, the evidence of
the prosecutrix is similar to the evidence of an
injured complainant or witness. The testimony
of the prosecutrix, if found to be reliable, by
itself, may be sufficient to convict the culprit
and no corroboration of her evidence is
necessary. In prosecutions of rape, the law
does not require corroboration. The evidence of
the prosecutrix may sustain a conviction. It is
only by way of abundant caution that the
court may look for some corroboration so as to
satisfy its conscience and rule out any false
accusations.”

The aforesaid judgment has laid down, that for
the purposes of placing reliance on the testimony of
the prosecutrix, which has to be tested along with
other corroborating evidences, with due caution for
the purposes of its scrutinizing the offence of a rape
as provided under section 375 IPC, various
parameters, which are required to be followed so as
30

to bring an act within the definition of rape has been
laid down. The exception clause, which makes an
offence as a rape is when it is against her will, her
consent, or without her consent, but when the same
has been obtained by putting her on fear. In the
present case, if the scrutiny of the statement of PW1
and PW2 is taken into consideration, there is no
such specific assertion or statements recorded by the
prosecutrix, as to in what manner, she was put
under threat by the convicts, rather the statement of
PW1 shows that she has not raised any alarm right
from the time when she was taken by the appellant
from Tilak Road, to the place of offence, which was a
room on the top floor of hotel Parmar.

44. The learned trial Court, while dealing with the
theory of opposition/retaliation being posed by the
prosecutrix for the purposes of inferring as to
whether there was consent or not, since the medical
examination was conducted on very next day and in
the absence of there being any marks of injury on
the internal or external parts of the victim, no
positive conclusion could be drawn, pertaining to the
commission of offence with or without consent in the
absence of their being a plea or evidence of any
opposition being given by the prosecutrix or being
established by medical report.

31

45. This Court in a judgment as reported in 2011
(2) U.D. 326 “Pushkar Singh Vs. State of
Uttarakhand” while considering the impact of the
judgment of the Hon’ble Apex Court (Supra), as dealt
with in its para 9 which reads as under:

“9. It has been contended by the learned
counsel for the appellant that there is no
other eyewitness except the prosecutrix.
But this argument is not sustainable at all.
Firstly because in rape cases, it has been
reiterated by the Hon’ble Apex Court, time
and again, that conviction can be based
solely on the statement of the prosecutrix in
the case of a rape, if the evidence is
trustworthy. In this regard, the verdict
pronounced by the Hon’ble Apex Court in
Shrawan v. State of Maharashtra, 2006(6)
SCJ 545 is noteworthy. Besides, it would
be worthwhile to have note of the judgment
of late pronounced by the Hon’ble Apex
Court in State of U.P. v. Chote Lal reported
in (2011) 2 SCC 550, wherein it has been
held that the sole testimony of the
prosecutrix in rape cases has its full
admissibility and corroboration is not
required at all.”

There, it has been held that mere statement of
the prosecutrix would be sufficient for conviction,
but with a caution that if the evidence is trustworthy
on record to create a situation, where it could be
inferred from the circumstances of the case, whether
there was a consent or not. But, in the instant case,
on scrutiny of evidence it shows that there was
32

sufficient evidence on record which do not support
the prosecution story, and in particularly, the
statement as recorded by PW1 and PW2. On an
overall scrutiny of the evidence and the facts which
were so much interconnected shows that it would
not fall to be within the purview of res gestae which
could make the facts, which are contradictory in
nature admissible under evidence and that too more
particularly when the learned Sessions Court had
not scrutinized the facts along with the evidence on
record in a judicious manner.

46. There is no eyewitness to the occurrence and
the entire case is based upon circumstantial
evidence. The normal principle is that in a case
based on circumstantial evidence the circumstances
from which an inference of guilt is sought to be
drawn must be cogently and firmly established; that
these circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should
form a chain so complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the accused
and they should be incapable of explanation of any
hypothesis other than that of the guilt of the accused
and inconsistent with their innocence.

33

47. In view of the definite law laid down by the
Hon’ble Apex Court, I find that the chain of the
circumstances linking the accused with the crime is
incomplete. The prosecution has miserably failed to
prove its case against the accused/appellants
beyond reasonable doubt.

48. Accordingly, the appeal is allowed. Judgment,
under challenge, is set aside. Appellants are
acquitted of the charges framed against them u/s
376(2)(N). The accused appellants are in jail. They
will be released forthwith, if unless not wanted in
any other case.

49. Let a copy of this judgment along with the LCR
be transmitted to the Court concerned for
information and compliance.

(Sharad Kumar Sharma, J.)
16.03.2018
Mahinder/

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