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Vikram Khimta vs State Of H.P on 1 November, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 579 of 2016
Reserved on 5.10.2018
Decided on 01. 11.2018

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[

Vikram Khimta ………Appellant
Versus

State of H.P. ……….Respondent

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.

For the appellant: Mr. Anoop Chitkara, Advocate.
For the respondent: Mr. S.C. Sharma, Mr. Dinesh Thakur and Mr. Sanjeev
Sood, Additional Advocate Generals.

Sandeep Sharma, J.

Instant criminal appeal filed under Section 374 (II) Cr.PC, is

directed against the judgment dated 30.9.2016, passed by the learned

Additional Sessions Judge-I Shimla, in Sessions trial No. 8-R/7 of 2013, whereby

learned court below while holding the appellant-accused guilty of having

committed offence punishable under Section 376 of IPC, convicted and

sentenced him to undergo imprisonment as under:-

“Under Section 376 of IPC
To undergo rigorous imprisonment for a period of seven

years and to pay a fine of Rs. 50,000/- and in default of
payment of fine, to further undergo simple imprisonment
for a period of one year.

2. Facts of the case as emerge from the record are that allegedly

on 13.6.2013, appellant/accused kidnapped/abducted the prosecutrix from

bus stand at Rohru, falling in jurisdiction of police station Rohru, District Shimla,

Whether reporters of the Local papers are allowed to see the judgment?

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with an intention to compel her to marry him. As per initial complaint,

Ext.PW2/A, which ultimately culminated into FIR No. 36/ 2013 dated 16.6.2013

(Ext. PW22/A), at Police Station Rohru, prosecutrix as well as accused were

.

studying together at Government College Sawara, District Shimla, H.P.

Allegedly, on 13.6.2013, accused called the prosecutrix and prosecutrix went

to Rohru to meet accused, where he instigated/pressurized her to solemnize

marriage with her and for this purpose, he took her to Shimla. Subsequently,

accused took the prosecutrix to the room of his friend namely Atul (PW25).

She alleged that they had started from Rohru on 13.6.2013, during evening

time and reached cemetery, Shimla on 14.6.2013, at about 5:00 AM. Though

prosecutrix made an attempt to make accused understand, but he under the

pretext of solemnization of marriage not only abducted her, but sexually

assaulted her against her wishes. During this period, accused allegedly

developed physical relations with the complainant-prosecutrix. In the

aforesaid background, complainant-prosecutrix by way of complaint

Ext.PW2/A prayed that legal action be taken against the accused and she

also intended to get herself medically examined. It may be noticed that

aforesaid complaint was filed at police post Sanjauli. PW23 LHC Sarita

forwarded the same alongwith rukka to HAG Rajinder (PW9) for registration of

case. Endorsement with regard to registration of zero FIR is Ext.PW24/A.

3. Careful perusal of FIR Ext.PW7/A reveals that accused had

threatened the complainant-prosecutrix that in case she did not come, he will

consume the poison and accordingly, prosecutrix left the home by asking her

parents that she is going to take admission in the college, but she did not go

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to the house in the evening and told her parents that she will stay with her

cousin at Rohru. Prosecutrix came to the bus stand Rohru, whereafter

accused took her to Shimla in a private vehicle belonging to person namely

.

Atul PW25. Prosecutrix reached Shimla alongwith accused as well as person

namely Atul (PW25) on 14.6.2013 at about 5:00 am. Allegedly, accused took

the prosecutrix to the room of Atul and had sexual intercourse with her against

her wishes. Thereafter, accused took her to the house of his god sister Minakshi

(PW8) and again committed sexual intercourse with her against her wishes.

Allegedly, prosecutrix had been insisting upon solemnization of marriage, but

the accused after having committed sexual assault upon her fled away and

parents of the accused gave beatings to the prosecutrix and threatened her

to eliminate her in case she discloses the alleged incident to anybody.

4. After registration of FIR, police got the prosecutrix medically

examined and procured MLC Ext.PW16/B. Similarly, accused was also

medically examined and his MLC Ext. PW21/B was obtained. As per opinion

rendered by the medical officer, there were no signs of prosecutrix’s having

undergone recent sexual intercourse, whereas medical officer, who

examined the accused opined that there is nothing suggestive of the fact

that accused is not capable of performing the sexual intercourse. After

completion of investigation, police presented challan in the court of learned

JMIC Rohru, who vide order dated 15.10.2013, committed the case to the

court of learned Sessions Judge, Shimla. Ultimately, matter came to be

assigned to the Court of learned Additional Sessions Judge, Shimla, for

disposal, who on being satisfied that prima-facie case exists against the

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accused, charged the present petitioner-accused for having committed

offences punishable under Sections 366 and 376 of IPC, whereas co-accused

Sikandar Khimta and Sunita Khimta were charged for having committed

.

offences punishable under Sections 323 506 read with Section 34 of the IPC,

to which they pleaded not guilty and claimed trial.

5. Prosecution with a view to prove its case examined as many as

28 witnesses, whereas accused did not lead any evidence in support of their

defence.

6. Learned Additional Sessions Judge on the basis of material

adduced on record by the prosecution held the petitioner-accused guilty of

having committed offence punishable under Section 376 of IPC and

accordingly, vide judgment dated 30.9.2016, convicted and sentenced him

as per description given herein above, however fact remains that learned

court below acquitted the petitioner-accused of the offences punishable

under Sections 366 of IPC. Learned court below also acquitted the other co-

accused Sikandar Khimta and Sunita Khimta for the offence punishable under

Sections 323, 506 and 366 of IPC. It may be noticed that no appeal,

whatsoever, came to be filed against the acquittal of the co-accused

Sikandar Khimta and Sunita Khimta, who happened to be the parents of the

present accused, under Sections 323, 506 and 366 of IPC and as such, same

has attained finality. In the aforesaid background, appellant-accused has

approached this Court in the instant proceedings, praying therein for his

acquittal after setting aside judgment of conviction recorded by the court

below.

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7. Mr. Anoop Chitkara, learned counsel representing the accused

while referring to the judgment of conviction recorded by the court below

vehemently argued that learned counsel below while holding accused guilty

.

under Section 376 IPC, miserably failed to appreciate the evidence in its right

perspective, as a result of which, erroneous findings to the detriment of the

accused have come to the fore. With a view to substantiate his aforesaid

argument, Mr. Chitkara while making this Court to peruse the statements

having been made by the various prosecution witnesses, contended that

prosecutrix had lodged false FIR with a view to compel the appellant to marry

her. He further argued that though allegations in the FIR are concocted but

even if allegations contained in the FIR are read in its entirety, they are of

consensual coitus on misconception of fact of promise of marriage. While

referring to the statement having been made by the prosecutrix PW2, Mr.

Chitkara, made a serious attempt to persuade this Court to agree with his

contention that both the appellant-accused and prosecutrix were closely

known to each other and prosecutrix was also active partner in the

consensual sexual intercourse, which took place with the will and consent of

the prosecutrix. While referring to the age of the prosecutrix i.e. 21 years, Mr.

Chitkara contended that she was fully informed about the consequences and

implications, be it social or getting pregnant of having joined the company of

the accused and thereafter, having sexual intercourse with him. Learned

counsel while making this Court to peruse the statement of prosecutrix in its

entirety, pointed out certain discrepancies to demonstrate that there are

material contradictions in the statement of prosecutrix. While making this

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Court to read statements of prosecutrix made in Court juxtaposing her initial

statement given to the police, Mr. Chitkara argued that there has been

consistent effort on behalf of the prosecutrix to improve her case, especially

.

to impress upon the court that her relationship with the accused was far older

than she as earlier stated 2-3 weeks. While referring to the initial complaint

having been filed by the prosecutrix as well as statement given to police and

magistrate under Section 164 Cr.PC, Mr. Chitkara contended that her

statement given before the court is in total contradiction to earlier statements

as referred above and probably, same was done because prosecutrix

realized that 2 to 3 weeks is too short a time for settlement of marriage. Mr.

Chitkara also argued that prosecutrix is absolutely incredible witness because

she substantially improved her initial story while deposing before the court

below during trial and her untruthfulness is proved by various contradictions.

While referring to the medical examination Ext.PW16/B of prosecutrix by PW16

Dr. Minakshi Sharma, Mr. Chitkara contended that there is no medical

evidence suggestive of the fact that prosecutrix had undergone intercourse

as alleged by her, rather he further argued that PW16 while giving her final

opinion has categorically opined that she is of the view that there is no finding

suggestive of the fact that prosecutrix has undergone recent sexual

intercourse. While referring to the report of FSL with regard to the evidence

collected from the spot, Mr. Chitkara contended that save and except DNA

on towel, nothing matched with the DNA collected from the accused. While

referring to the report submitted by the FSL qua Ext.P5 i.e. double bed sheet

which came to be recovered vide seizure memo Ext.PW2/C upon which, rape

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was allegedly committed on the night of 14.6.2013 in the building of Ramesh

Chuahan, Mr. Chitkara argued that two DNA profiles pertaining to male

individuals were obtained from Ext.P5 i.e. double bed sheet and both these

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profiles did not match with the DNA obtained from the accused. Lastly, Mr.

Chitkara argued that though as per report of FSL, DNA profile obtained from

the towel used for cleaning the private parts matched with DNA obtained

from the 10 FTA (accused), but that could not be a ground to conclude that

accused committed sexual intercourse with the prosecutrix.

8. Mr. S.C. Sharma, learned Additional Advocate General, while

refuting the aforesaid submissions having been made by the learned counsel

representing the accused strenuously argued that bare perusal of the

impugned judgment of conviction recorded by the court below, clearly

suggest that court below not only appreciated the evidence in its right

perspective, rather dealt with each and every aspect of the matter

meticulously and as such, there is no scope left for this Court to interfere with

the findings returned by the court below. With a view to refute the contention

put forth on behalf of the accused that there are material contradictions in

the statement of prosecution witnesses, Mr. Sharma, while making this Court to

peruse statement of prosecution witnesses, contended that story put forth by

PW2 (complainant-prosecutrix) stands fully corroborated by other prosecution

witnesses. He further contended that version putforth by the prosecutrix is

consistant, cogent and natural and at no point of time, defence was able to

shatter her testimony. Mr. Sharma further contended that though medical

evidence collected on record by the prosecution also corroborates the

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version put forth by the prosecution, but even if for the sake of arguments, it is

presumed that nothing emerged against the accused in the medical

evidence that may not be a ground to hold accused not guilty of having

.

committed offence punishable under Section 376 IPC. He further argued that

there is ample evidence on record that accused on the pretext of marriage

not only abducted the prosecutrix, rather repeatedly, sexually assaulted her

against her wishes. While referring to Section 375 IPC, wherein rape has been

defined, Mr. Sharma, made a serious attempt to persuade this Court to agree

with his contention that mere fondling of body parts of the prosecutrix by the

accused against her wishes amounts to rape and as such, learned court

below rightly held the accused guilty of having committed offence under

Section 376 IPC.

9. I have heard the learned counsel for the parties as well as gone

through the records of the case.

10. In her examination-in-Chief, prosecutrix (PW2) deposed that she

was called by the accused on 12.6.2013, and thereafter, she met the

accused at Rohru market on 13.6.2013, at 11:30 am, whereafter at 5:00 pm

accused called her and persisted her to perform marriage. Prosecutrix

deposed that accused threatened her that in case she does not solemnize

marriage with him, he will end up his life. As per prosecutrix, accused brought

her to Shimla in a vehicle of person namely Atul (PW25). They reached Shimla

on 14.6.2013, at about 5:00 am. At this stage, it may be noticed that if the line

of defence taken by the accused is considered/analyzed, there appears to

be no dispute with regard to the factum of prosecutrix having accompanied

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accused from Rohru to Shimla. As per prosecutrix, she was taken to the room

of Atul, which was situated in Cemetery at Shimla. Allegedly, Atul (PW25) left

the room in the morning, whereafter accused committed sexual intercourse

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with the prosecutrix against her wishes. As per prosecutrix, she asked the

accused to perform marriage first but her request was ignored by the

accused, who thereafter committed forcible intercourse by laying mattress on

the floor of the room. Prosecutrix deposed before the court below that

accused committed intercourse first time by using condom and thereafter,

second time without condom. As per prosecutrix, accused used brown

colored towel to clean his private part. She further deposed that after 3-4

hours, accused took her in a private taxi to the house of his god sister Minakshi

PW8 at Indernagar, Dhalli Shimla. Accused told his god-sister that he and his

girl friend (prosecutrix) are going to perform marriage and as such, she

allowed them to stay in her house. She deposed that in the house of Minakshi,

accused again committed rape with her 3-4 times on the mattress, which was

lying on the ground in the room. She also stated that accused used one

white colour muffler to clean the private parts. On 15.6.2013, prosecutrix

again requested the accused to perform marriage, but he on one pretext or

the other refused and thereafter, at about 2:00 pm, parents of the accused

i.e. accused Sikander Khimta and Sunita Khimta, came to the house of

Minakshi, to whom prosecutrix disclosed that accused brought her to Shimla

to perform marriage. Mother of the accused Sunita Khimta slapped the

prosecutrix and allowed accused to run away from there, whereafter

accused Sikandar Khimta asked prosecutrix to go home and not to disclose

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anything to anyone otherwise, they will kill her and her family members. She

also stated that at that time Minakshi (PW8) was not at home.

11. This Court with a view to ascertain the correctness of argument

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advanced by Mr. Chitkara that there are material contradictions in the

statements of the prosecutrix, perused statement of prosecutrix made in Court

juxtaposing same with her initial statement recorded under Section 154 Cr.PC.

i.e. complaint Ext.PW2.A (mark-B statement made under Section 164 Cr.PC).

At this stage, it may be noticed that since statement (mark-B) was not bearing

the signatures of the prosecutrix, it was not exhibited, rather marked as mark-

B. In her initial statement Ext.PW2/A prosecutrix alleged that she was on

talking terms with the accused for the last 3 weeks. Similarly, in the statement

recorded under Sectionb164 Cr.PC, she stated that she met the accused,

who is her senior in college for last 2-3 weeks, however, before court

prosecutrix deposed that accused was personally known to her as they were

students of Govt. College Sawara Hatkoti. It appears that prosecutrix

purposely did not state the period with regard to her relationship while

deposing before the court below with a view to impress upon the court that

her relationship was far older than she earlier stated it was 2-3 weeks. Similarly,

Ext.PW2/A reveals that complainant alleged that on 13.6.2013, she went to

Rohru to meet accused, whereas in her statement recorded under Section

164 Cr.PC (mark-b), she stated that on 13.6.2013, accused called her to

home. While deposing before the court, PW2 complainant stated that on

12.6.2013, accused called her through mobile phone at about 9 pm and on

the next morning, i.e. 13.6.2013, at about 6:30 am, he again called her to

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meet him at Rohru, whereafter on the pretext of getting admission in college,

she came to Rohru to meet the accused. PW2 also stated in her statement

before the court that accused met her at Rohru bazar.

.

12. If the aforesaid three statements having been made by the

prosecutrix are read juxtaposing each other, definitely there appears to be

attempt on the part of the prosecutrix to improve her version given in her

initial statement to the police and to the magistrate under Section 164 Cr.PC.

Similarly, this Court finds that there is contradiction with regard to the date on

which allegedly, accused had called the prosecutrix to Rohru. In complaint

Ext.PW2/A, prosecutrix alleged that on 13.6.2013, accused called her from her

home, whereas in her statement recorded under Section 164 Cr.PC, she

stated that on 13.6.2013, accused called her to his home, but interestingly, in

her statement given before the Court, she stated that on 12.6.2013, accused

called her through mobile phone at about 9 pm, whereafter on the next

morning by 6:30 am, accused again called her to meet him at Rohru,

whereafter on the pretext of getting admission in college, she came to Rohru

to meet the accused Vikram Khimta.

13. If aforesaid versions given by the prosecutrix are read in

conjunction, it clearly suggests that there is no mention, if any, of phone call

given by the accused on 12.6.2013 in the complaint Ext.PW2/A and thereafter

in statement recorded under Section 164 Cr.PC before the magistrate.

Similarly, this Court finds that prosecutrix in her statement recorded under

Section 154 Cr.PC (mark-B) claimed that accused had told her that in case

she does not come, he will consume the poison, whereas this aspect is totally

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missing in her initial complaint Ext.PW2/A. Subsequently, while deposing

before the Court, she stated that accused met her at Rohru Bazar on

13.6.2013, at about11:30 pm and thereafter, they visited Rohru Bazar and

.

took lunch. She further stated that after having lunch, they remained

together for some time and thereafter , by saying bye to accused, she went

to room of her cousin Kalpana Walia, accused again called her to come to

the bus stand Rohru, otherwise he will commit suicide by consuming poison.

At this stage, it would be appropriate to take note of statement of PW1 Ram

Lal, who stated that on 13.6.2013, prosecutrix came to Sarswati Nagar for

getting admission in BA in the college situate In Sarswati Nagar. He stated

that prosecutrix told him before leaving the home that she will go to the house

of Kalpana, who is in her relations for stay and will not come back in the night.

At the time of registration of FIR, there is no mention, if any, by the prosecutrix

that accused had threatened her of consuming poison on her not visiting him

but subsequently, she narrated aforesaid story. In FIR, prosecutrix did not state

that she had gone to meet accused due to fear that in case, she would not

go, accused would consume poison. Rather her statement made before the

court clearly suggests that she of her own, after having received call from the

accused had come to Rohru bazaar, whereafter they after having taken

lunch remained together for some time. She category stated that accused

called her at the house of Kalpana to come to bus stand Rohru, otherwise he

will commit suicide by consuming poison. On this aspect, if statement made

under Section 164 Cr.PC (mark-B), given by the prosecutrix is examined, she

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stated that she went due to fear that in case, she does not go, accused

would consume the poison.

14. Careful perusal of FIR lodged at the behest of the prosecutrix

.

suggests that prosecutrix alleged that accused had allured her to elope but

interestingly, while deposing before the court she improved her version by

deposing that he had not allured to perform marriage but had also

threatened her that if she would not accompany him, he would consume

poison. This Court may take note of the fact that prosecutrix at the time of

alleged commission of offence was 23 years of age and it is highly

improbable that she had come under the pressure of the accused solely

because of threat of suicide extended by the accused. Leaving it apart, PW2

complainant in her cross-examination admitted that she left Rohru with the

accused as she was interested to perform marriage with him. Having carefully

perused the statement of prosecutrix made before the trial court as well as

her initial version given in complaint, which subsequently culminated in FIR

Ext.PW22/A and statement made under Section 164 Cr.PC, this Court is

persuaded to agree with the learned counsel for the petitioner that

prosecutrix had prior acquaintance with the accused and she of her own

volition, joined the company of the accused. As has been taken note herein

above, it has come in the cross-examination of prosecutrix that she herself

was interested to perform marriage with the accused. Otherwise also,

statement of prosecutrix itself revels that she of her own volition joined the

company of the accused for leaving towards Shimla. She deposed before the

court that accused persisted to perform marriage, but she refused to marry.

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She stated that accused called vehicle of Atul (PW25) and thereafter, they

left Rohru in the said vehicle of the Atul (PW25) being driven by Atul (PW25).

This version put forth by the prosecutrix does not appear to be correct,

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especially, in view of the statement of PW25 Atul, who deposed that on

13.6.2013, at about 5 pm, he received telephonic call from the prosecutrix

and then, he met her at Rohru. He specifically stated that one boy (accused)

was accompanying the prosecutrix. He also stated that he was in his Bolero

vehicle bearing No. HP 10-A 2024. He stated that accused and complainant

asked him to drop them to Shimla and then he took them to Shimla and

dropped them at his quarter at Cemetery road. Most importantly, it has

come in the statement of PW25 that he dropped prosecutrix and accused on

the request of the prosecutrix. This witness categorically denied suggestion

put to him in his cross-examination that he knows the accused as he has

studied with him in DAV School. He also stated that prosecutrix was my god

sister. He also stated that for the first time, he saw the accused on the said

date i.e. 13.6.2013. Having carefully perused the statement of prosecutrix

juxtaposing the statement of Atul PW25, who remained alongwith the

prosecutrix and accused during their journey from Rohru to Shimla, this Court

has no hesitation to conclude that statement of prosecutrix does not inspire

confidence, rather story put forth by her appears to be untrustworthy.

15. At this stage, this Court may also take into consideration

statement of PW8 Minakshi, who deposed that she knows the family of

Kalpana Walia, who is in relation of the prosecutrix. She stated that she used

to visit the shop of Kalpana Walia at upper Bazar Rohru, wherein she came in

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contact of the prosecutrix. This witness deposed that on 14.6.2013, at about

4.45pm, she received a call from the prosecutrix, who sought her help by

stating that she has performed marriage with the person namely Vicky Khimta.

.

She deposed that prosecutrix told her that she has no place to stay and she

does not have money and as such, she requested her to meet her at Dhalli

near tunnel. She further stated that jeep came from Dhalli side at about 7 am

which was being driven by Atul (PW25), wherein prosecutrix alongwith

another person Vicky were sitting inside the jeep. She further stated that she

joined their company and thereafter they all went to the room of Atul (PW25)

near cemetery at Shimla. If aforesaid version put forth by this witness is

examined in light of statement given by the prosecutrix, this completely

demolishes the case of the prosecution because, in nutshell case of the

prosecution as projected before the court is that accused allured the

prosecutrix and thereafter, took her to Shimla on the pretext of marriage and

in this process, he was helped by PW8 Minakshi, who was alleged to be god

sister of the accused and PW25 Atul Rokta (friend of the accused), but as has

been noticed herein above, both the aforesaid prosecution witnesses i.e.

PW25 and PW8, have categorically deposed before the court below that they

had prior acquaintance with the prosecutrix, not with the accused and they

had joined the company of prosecutrix as well as accused at Rohru and

subsequently, at Shimla at the insistence/askance of the prosecutrix and not

at the asking of the accused.

16. There is another material contradiction, which compels this

Court to conclude that story put forth by the prosecutrix is unreliable, as per

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PW2 prosecutrix, accused took her to the room of Atul (PW25), which was

situate at Cemetery Shimla, whereas PW8 Minakshi deposed before the Court

below that she met prosecutrix and accused at Dhalli near Tunnel, whereafter

.

she joined their company and they all went to the room of Atul (PW25) near

Cemetery at Shimla. To the contrary Atul (PW25) stated that when they

reached at Cemetery Shimla, prosecutrix talked with her friend Minakshi on

mobile. PW25 further stated that Minakshi accompanied her to his room and

remained there up to leaving of his room by the prosecutrix, accused and

Minakshi (PW8). As per version put forth by Atul (PW25), he remained in his

room till the time prosecutrix, accused and Minakshi left for the house of

Minakshi (PW8) at Indernagar, whereas as per Prosecutrix, Atul (PW25) after

leaving them in his room went away and accused sexually assaulted her on

two occasions against her wishes. Factum with regard to the presence of

PW2 and PW25 Atul in the room of PW25 Atul, wherein prosecutrix was

allegedly taken by the accused at the first instance stands duly corroborated

with the versions put forth by PW8 and PW25. PW8 and PW25 both in their

depositions made before the Court below categorically stated that they all

went to the room of Atul (PW25) near Cemetery at Shimla with the prosecutrix,

which version of them totally belies the version put forth by the prosecutrix

that she was alone with the accused in the room with Atul on the date of

alleged incident. PW25 Atul categorically deposed that he remained in his

room till the time prosecutrix, accused and Minakshi left the room, meaning

thereby story putforth by the prosecutrix that accused sexually assaulted her

in the room of PW25 Atul is highly unbelievable, rather appears to be

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concocted one. Interestingly, if the statement of PW8 Minakshi is read in its

entirety, it reveals that PW8 Minakshi, Prosecutrix and the accused took bath

in the room of PW25 Atul and thereafter, they found nothing to eat in the

.

room of Atul (PW25) and as such, PW8 Minakshi took the prosecutrix and

accused to her room at Indernagar. She further stated that Atul (PW25) left

the room and she alongwith prosecutrix and Vicky came to her room. Since

PW8 Minakshi remained throughout with the prosecutrix and accused at the

room of Atul (PW25), story put forth by the prosecutrix with regard to the

forcible sexual intercourse committed by the accused in the room of Atul

(PW25), appears to be highly improbable and could not be believed. There

is no mention, if any, about use of condom by the accused while making

sexual intercourse with the prosecutrix in her initial statement i.e. complaint

PW2/A and her statement made under Section 164 Cr.PC (Mark B), whereas in

her deposition made before the Court, she claimed that accused for the first

time committed sexual intercourse by using condom and thereafter, second

time without condom. Similarly, there is no mention, if any, of use of brown

coloured towel by the accused for cleaning his private part in his statement

made under Sections 154 and 164 CrPC, whereas in her statement made

before the Court, she claimed that accused used brown coloured towel to

clean his private part. Though, prosecutrix deposed that accused committed

sexual intercourse with her without her consent forcibly and she had

requested the accused to first perform marriage, but accused ignoring her

request forcibly committed sexual intercourse by laying mattress on the floor

of the room, but she admitted in her cross-examination that there are so many

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residential accommodations around the building of Naveen Manta(PW4) at

Cemetery. She also admitted that there are other persons residing in the

same building but it is not understood that if she was being sexually assaulted

.

against her wishes, what prevented her from raising hue and cry. PW4

Naveen Manta (landlord of room of Atul PW25) in his statement deposed that

he has four tenants on the same floor. He also stated that on the alleged

date of incident, other tenants were also residing in his building and his

building is surrounded by other residential buildings. He also deposed that

nobody told him about the incident, whether occurred or not.

17. Prosecutrix in her initial version recorded in her complaint

(Ext.PW2/A) alleged that accused confined her in a room of his friend namely

Atul, whereas in her statement recorded under Section 164 Cr.PC (Mark B),

she alleged that accused kept her in the room of Atul for 3-5 hours,

whereafter he took her to the house of his cousin/god sister Minakshi (PW8) at

Indernagar, Dhalli. If the aforesaid version put forth by her is tested with her

statement given in the court, it creates suspicion on the correctness and

genuineness of the story put forth by the prosecutrix. PW2 in her statement

before the Court stated that after 3-4 hours, accused took her in private taxi

to the house of god sister Minakshi at Indernagar Dhalli. She further deposed

that accused had told his god sister that he and his girl friend are going to

perform marriage and as such, she allowed them to stay in her house,

whereas PW8 Minakshi stated that they all took bath in the room of Atul and

thereafter when they found nothing eatable in the room of the Atul (PW25),

she took prosecutrix and Vicky (accused) to her room but Atu l(PW25) left his

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room. She further stated that they took meal in her room and in the evening,

one person namely Rohit came to her room and took dinner and thereafter

Vicky (accused) and Rohit went to sleep in another room, whereas she and

.

prosecutrix slept in a separate room. If the aforesaid version put forth by PW8

Minakshi is considered vis-à-vis statement of PW2 complainant prosecutrix, it

creates serious suspicion with regard to the allegation of prosecutrix that

accused had committed sexual intercourse with her on two occasions in the

room of Minakshi (PW8). As per initial story put forth by the prosecutrix, she

had undergone intercourse twice in the house of Minakshi ( PW8), whereas in

the court, prosecutrix improved her statement by saying that accused

committed sexual intercourse 3-4 times, but statement of PW8 is totally

contrary to the probability of accused and prosecutrix sleeping together.

PW2 in her statement claimed that in the house of Minaskshi in the night,

accused again committed sexual intercourse with her 3-4 times on the

mattress, which was lying on the ground in the room having black and white

bed sheet with red flowers, but her aforesaid statement is totally contrary to

version putforth by her before PW16 Dr. Monika at the time of her

examination. PW16 deposed that prosecutrix’s alleged history disclosed that

she had undergone intercourse twice but if the version putforth by the

prosecutrix, wherein she alleged that on two occasions, she was sexually

assaulted at the room of Atul and thereafter 3-4 times at the house of Minakshi

(PW8) is examined in light of statement of PW16 Dr. Monika, it completely

belies the version of prosecutrix.

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18. Having carefully perused statements of PWs i.e. complainant

and PW8 Minakshi, and PW25 Atul, who are the material witnesses with

regard to the commission of offence , if any, committed by the accused

.

under Section 376 IPC, vis-à-vis statement of complainant-prosecutrix PW2, this

Court is compelled to agree with the contention of Mr. Chitkara, that story put

forth by the prosecution with regard to her having subjected to sexual

intercourse initially at the room of the Atul (PW25) and subsequently, in the

room of Minakshi (PW8) is highly doubtful and could not be accepted merely

being the statement of prosecutrix. If the version put forth by the prosecutrix

with regard to her having made request to Vicky to perform marriage and

arrival of parents of the accused in the house of PW8 Minakshi, is

examined/analyzed in the light of statements made by PW8, it again creates

serious doubt with regard to the correctness of version putforth by the

prosecutrix (PW2). Prosecutrix in her statement deposed that on 15.6.2013, she

again requested the accused to marry her, but he on the one pretext or the

other, refused and thereafter, at 2 pm, parents of accused i.e. Sikander

Khimta and Sunita Khimta, came in the house of Minakshi PW8, and she told

them that accused brought her to Shimla to perform marriage, whereas PW1

Ram Lal (father of the complainant), in his statement stated that prosecutrix

disclosed to her that accused called her parents at Shimla, who after

reaching Shimla threatened the prosecutrix not to disclose the incident to

anyone, otherwise they will kill her and her family. PW8 in her statement

stated that in the next morning, parents of Vicky (accused) came to her room

and prosecutrix started weeping and told that they want to perform

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marriage. This witness also stated that prosecutrix stated she will commit

suicide, in case her marriage was not solemnized with the accused.

Interestingly, this witness in her cross-examination admitted that when parents

.

of the accused came to her room, she along with prosecutrix and accused

was present there, whereas PW2 stated in her statement that parents of the

accused slapped her and allowed the accused to run away. Most

importantly, this has come in the statement of this witness that at that time,

PW8 was not at home. She deposed that Sikander Khimta and Sunita Khimta

also left the house, whereafter Minakshi came there. This version of her is in

total contradiction to the statement of PW8 Minakshi, who while

acknowledging the presence of parents of the accused, categorically stated

that she was present in the room along with prosecutrix and accused, during

visit of the parents of the accused.

19. Having examined aforesaid aspect of the matter, this Court finds

force in the argument of learned counsel representing the accused that

prosecutrix wanted to marry accused, but since parents of the accused were

not ready for the same, she lodged false complaint against the accused with

a view to pressurize him to marry her. Otherwise also, PW2 in his statement

categorically admitted that she lodged FIR only with an intention to perform

marriage with the accused and get justice. He also stated that today, she is

not interested to perform marriage with the accused Vikram. Though

prosecution with a view to prove its case examined as many as 28 witnesses

but having perused the record this Court finds that only statements of PWs1, 2,

8, 12 and 25 are material witnesses to determine the correctness of story put

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forth by the prosecution with regard to the alleged commission of offence

under Section 376 IPC by the accused, because other witnesses are formal

witnesses in nature and their statements may not be very important to

.

determine the guilt, if any, of the accused under Section 376 IPC.

20. Conjoint reading of statements made by PW1, PW2, PW8 and

PW25 clearly reveals that there are material contradictions in the statements

having been made by the aforesaid material prosecution witnesses. If the

statement of PW2 (prosecutrix) is examined/analyzed juxtaposing statements

of PW8 and PW25, who admittedly remained, in and around, throughout with

the prosecutrix and accused, at the time of the alleged commission of

offence, this Court is not willing to accept the contention of learned

Additional Advocate General that discrepancies, if any, are minor in nature

and can be ignored. Rather, this Court having noticed material

contradictions as have been taken note herein above is of the view that

contradictions as have been noticed herein above, completely belie the story

of the prosecution and compels this Court to draw inference that story put

forth by the prosecution with regard to forcible sexual intercourse committed

by the accused is concocted and far from the truth.

21. In the case at hand, entire story put forth by the prosecution

appears to be untrustworthy and full of contradictions. Hon’ble Apex Court

has repeatedly held that since the fundamental aspect of criminal

jurisprudence rests upon the well established principle that “no man is guilty

until proved so”, utmost caution is required to be exercised in dealing with the

situation where there are multiple testimonies and equally large number of

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witnesses testifying before the Court. Most importantly, Hon’ble Apex Court

has held that there must be a string that should join the evidence of all the

witnesses and thereby satisfying the test of consistency in evidence amongst

.

all the witnesses. In nutshell, it can be said that evidence in criminal cases

needs to be evaluated on touchstone of consistency. In this regard, reliance is

also placed on Judgment passed by the Hon’ble Apex Court in C. Magesh

and Ors. v. State of Karnataka (2010) 5 SCC 645, wherein it has been held as

under:-

“45. It may be mentioned herein that in criminal jurisprudence,
evidence has to be evaluated on the touchstone of consistency.
Needless to emphasise, consistency is the keyword for upholding
the conviction of an accused. In this regard it is to be noted that

this Court in the case titled Suraj Singh v. State of U.P., 2008 (11)
SCR 286 has held:- (SCC p. 704, para 14)

“14. The evidence must be tested for its inherent
consistency and the inherent probability of the
story; consistency with the account of other
witness is held to be creditworthy. The probative
value of such evidence becomes eligible to be
put into the scales for a cumulative evaluation.”

46. In a criminal trial, evidence of the eye witness requires a
careful assessment and must be evaluated for its creditability.
Since the fundamental aspect of criminal jurisprudence rests
upon the stated principle that “no man is guilty until proven so”,

hence utmost caution is required to be exercised in dealing with
situations where there are multiple testimonies and equally large
number of witnesses testifying before the court. There must be a

string that should join the evidence of all the witnesses and
thereby satisfying the test of consistency in evidence amongst all
the witnesses.”

22. Medical evidence adduced on record by the prosecution

otherwise nowhere indicates towards sexual intercourse, if any, committed by

the accused and as such, contradictions as have been taken note herein

above, certainly suggest that story put forth by the prosecution is not at all

trustworthy and at no point of time, prosecutrix was subjected to sexual

intercourse as alleged by her.

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23. Now this Court would advert to the medical evidence led on

record by the prosecution. At this stage, it would be appropriate to take note

of medical examination i.e. MLC Ext.PW16/B of prosecutrix by PW16 Dr.

.

Monika Sharma. PW16 in her opinion (Ext.PW16/B) categorically opined that

on physical and chemical examination, no findings were suggestive that she

had undergone intercourse as alleged by the prosecutrix. There were no fresh

tears on the hymen area.

24. After having perused categorical analysis, Dr. Monika (PW16),

also opined that keeping in view the aforesaid chemical analysis report and

findings of examination of the victim …., I am of the opinion that there are no

finding to suggest that she (….) has undergone recent sexual intercourse. It

has also come in the statement of PW16 that I have not found any struggle

marks on the body of the prosecutrix. There were no external and internal

injuries on the body of the prosecutrix. No spermatozoa were detected in the

virginal swab and smear of the prosecutrix.

25. It is also apparent from the medical evidence, especially,

chemical analysis report given by the FSL that except DNA on towel, nothing

else matched with the DNA collected from accused (Ex.PX PZ).

1. Single bed sheet, green colour, with pink stripes:

Ex. PW-1/A seizure memo of articles from the residence of Atul Kumar, on
17th June, 2013.

Single bed sheet, green colour, with pink stripes:
PW2 Pooja Steta, page 7, 9th line, “the mattress was covered with bed
sheet green in colour and rose colour lines.”
Ex.PX. FSL Report:

Result
(2) Human Semen was detected on:

Exhibit-6b (one gree and light pink) (bed sheet).
Ext PZ-FSL-DNA:

Report:

Exhibit-6b: one green, pink and grey coloured bed sheet. The exhibit was
stated to be single bed sheet.

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6. Exhibit-6b (Single bed sheet) yielded a DNA profile pertaining to a
female and this profile does not match with the DNA profile obtained from
Exhibit-3 (FTA, Pooja Stata)
Conclusion:

iii) Exhibit-6b (Single bed sheet) yielded a DNA profile pertaining to a
female and this profile does not match with the DNA profile obtained from

.

Exhibit-3 (FTA, Pooja Stata)

2. Used Condom:

Ex. PW-1/A, seizure memo of articles from the residence of Atul Kumar, on
17 June, 2013
Condom:

Used condom-subsequently sealed by police in a match box
Ex.PX, FSL Report:

Result
(3) Human semen was detected on:

Exhibit-7 (condom)
Blood was not detected on these exhibits.

Ext PZ-FSL-DNA:

Report:

Conclusion:

iv) Exhibit-7 (Condom) yielded highly degraded DNA from which a partial
and mixed DNA profile was obtained, from which nothing specific could
be inferred.

3. White colour muffler:

Ex. PW-2/B, seizure memo of Muffler of accused and clothes from

prosecutrix:

PW-2 Pooja Steta, page 7, 25th line, “The accused Vikram has also used
one white colour muffler to clean his private part.”
Ex.PX, FSL Report:

Result
(4) Blood and semen was not detected on:

Exhibit -4 e (muffler, pooja)

4. Clothes of prosecutrix:

Cloths of prosecutrix: Slex (Green), Red coloured shirt, White coloured shirt,
one brown coloured underwear, (All clothes were washed).
Ex.PX, FSL Report:

Result
(5) Blood and semen was not detected on:

Exhibit-4a (underwear, Pooja),
Exhibit-4b (slacks, pooja),
Exhibit-4c (vest, Pooja),
Exhibit-4d (upper, Pooja),
Exhibit-4e (muffler, Pooja)

5. Black and white bed sheet, with red flowers:

Ex.PW-2/C, seizure memo of bed sheet, upon which rape was committed
on the night of 14 June, 2013, in the building of Ramesh Chauhan, on 18
June, 2013
Black and white bed sheet, with red flowers,
PW-8 Minakshi, page 28, 34th line, “It is incorrect that bed sheet Ex.P-17
was taken into possession by the police from my room. Self stated that
said bed sheet not belongs to me.”

Ex.PX, FSL Report:

Result
(6) Human semen was detected on:

Exhibit-5 (one red, black and gray) (bed sheet),
Ext PZ -FSL-DNA:

Report:

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Exhibit-5 one off white, black and red coloured double bed sheet

4. From Exhibit-5 (Double bed sheet) two male DNA profiles (pertaining to
two individuals) were obtained. Neither of these profiles matches with the
DNA profile obtained from Exhibit-10 (FTA, Vikram Khimta).
Conclusion:

i) Two DNA profiles (pertaining to male individuals) were obtained from

.

Exhibit-5 (Double bed sheet) and both of these profiles matches with the

DNA profile obtained from Exhibit-10 (FTA, Vikram Khimta)

6. One towel, colour brown (bhura), make ANNALDIS. Recovery of this towel
is not proved:

Ex.PW01/A, seizure memo of articles from the residence of Atul Kumar, on
17 June, 2013

Towel:

One towel, colour brown (Bhura), make ANNALDIS:
PW-2 Pooja Steta, page 7, 14th line, “Accused Vikram has used brown
coloured towel to clean his private part.”
Ex. PX, FSL Report:

Result

(7) Human semen was detected on :

Exhibit -6a (towel),
Ext.PZ-FSL-DNA:

Exhibit-6a: one brown coloured towel. The exhibit was stated to be towel
used by the accused for cleaning after intercourse.
Report:

Exhibit-6a: one brown coloured towel. The exhibit was stated to be towel
used by the accused for cleaning after intercourse.

5. The DNA profile obtained from Exhibit-6a (Towel, used for cleaning after
intercourse) matches completely with the DNA profile obtained from
Exhibit-10 (FTA, Vikram Khimta).

Conclusion:

i) The DNA profile obtained from Exhibit -6a (Towel, used for
cleaning after intercourse) matches completely with the DNA profile

obtained from Exhibit-10 (FTA, Vikram Khimta).

26. If the aforesaid report/chemical analysis report is perused, it

reveals that Ext.6/B (single bed sheet) yielded a DNA profile pertaining to

female and this profile did not match with the DNA profile obtained from Ext.

3 FTA i.e. prosecutrix.

27. Allegedly, police had recovered one used condom Ext.PW1/A

vide seizure memo of articles from the residence of Atul Kumar (PW25) on

17.6.2013, which was allegedly used by accused while committing sexual

intercourse with the victim, however it has been categorically opined by the

FSL that though Ext.7 (condom) yielded highly degraded DNA from which, a

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partial and mixed DNA profile was obtained, from which nothing specific

could be inferred.

28. If the aforesaid report is perused in its entirety, from Ext.P5 i.e.

.

(double bed sheet), two male DNA profiles (pertaining to two individuals)

were obtained, but neither the profiles matched with the DNA profiles

obtained from Ext.10 FTA, of accused. FSL has categorically concluded that

two DNA profiles pertaining to two male individuate were obtained from Ext.5

(double bed sheet) and both of them, did not match with DNA profile

obtained from Ext.10 FTA Vikram (accused).

29. One brown coloured towel recovered from the residence of Atul

Kumar (PW25) vide Ext.PW1/A (seizure memo of articles from the residence of

Atul i.e. on 17.6.2013), was also sent for chemical analysis. DNA profile

obtained from Ext.6A i.e. towel allegedly used for cleaning after intercourse

matched completely with DNA profile obtained from Ext.10 (FTA, Vikram

Khimta), but this Court is of the view that same could not be a ground for

court below to arrive at a conclusion that accused forcibly committed sexual

intercourse with the prosecutrix, especially when there is categorical finding

by the medical officer based upon chemical analysis report that there is no

evidence that prosecutrix had undergone intercourse as alleged by her.

Since story put forth by the prosecutrix with regard to her being subjected to

sexual intercourse in the room of PW25 Atul and thereafter in the room of PW8

Minakshi, does not appear to be trustworthy, as has been discussed herein

above, mere matching of DNA profiles of the accused with DNA profile

obtained from Ext.6A i.e. towel, is not sufficient to conclude the guilt, if any, of

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the accused, especially when factum if any of complainant having been

subjected to sexual intercourse is highly doubtful.

30. Otherwise also, this Court finds from the record that recovery of

.

towel allegedly used by the accused for cleaning his private parts after

having sexual intercourse with the prosecutrix is highly doubtful. As per story of

prosecution, Ext.6a (brown color towel) was recovered from the room of Atul

on 17.6.2013. As per site plan Ext.PW26/A, residence of Atul Kumar was at

third storey of the building of Naveen Manta. PW 1 Ram Lal in his statement

deposed that when we reached the room, it was locked and the key was

with the police. He further stated that said key was found in the purse of the

accused but interestingly, as per own story of the prosecution, accused was

not with the police. He also stated that he had not seen the key personally

with the police and the lock was opened by the police. Prosecutrix/PW2

deposed that when we visited the building of Naveen Manta at Cemetery,

room was already locked but I do not know who locked the same.

Interestingly, she stated that the key was with her as the key was found by her

in the room, which was situate in Indernagar, when she and Vikram left the

room at Cemetery, she had not locked the said room. PW4 Naveen Manta,

landlord of Atul (PW25), stated that room was not opened by the police in his

presence and as such, he cannot say from where police obtained key of the

room. He also stated that police had already entered into the room when he

reached the spot. This witnesses (PW4) stated that police obtained his

signatures at police station Dhalli and he cannot tell about the time when he

visited the police station and the seal impression “T” was given to him by the

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police at the police station Dhalli. This witness though categorically stated

that no proceedings took place at the spot/residence i.e. his building, PW26

Sub-Inspector, Madan Lal deposed that when we visited cemetery on

.

17.6.2013, in the quarter of Atul Rukta PW25, room was locked. He stated that

key of the room was taken from owner of the building Naveen. He also

admitted that neither he narrated this fact regarding taking of the key from

Naveen Manta in the police challan nor he mentioned in the Ext.PW1/A. He

also stated that Atul Rokta (PW25) met him on 23.6.2013 and prior to this, he

did not consult him. He also stated that key of the room of Atul was found

near the door, which was kept there. He stated that he made statement to

the effect that key of the room was obtained from the owner of the building

Naveen Manta is incorrect. He admitted that Atul was not present and also

was not contacted and as such, no permission was obtained to open the

room, however, he self stated that we tried to contact, but he could not

contact him.

31. If the aforesaid versions putforth by PWs1, 2, 4 and 26, who are

witnesses to recovery Ext.PW1/A, are perused in conjunction, it creates

suspicion with regard to the recovery of brown colored towel from the

residence of Atul on 17.6.2013. All the aforesaid witnesses have in unison

stated that when they visited the house of the Atul (PW25), room was locked.

All the witnesses have given contradictory version with regard to their having

procured key of the room. As per PW1 Ram Lal, key was found in the purse of

the accused, who was admittedly not present on the spot at the time of the

recovery of towel Ext.P1/A. To the contrary, PW2 complainant claimed that

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key was with her, which she found in the room situate at Indernagar, where

she stayed with the accused. PW26 SI Madan Lal claimed that key of the

room was taken from the owner of the building, who categorically denied

.

that key was obtained by police from him, rather he deposed that room was

not opened by the police in his presence.

32. Having carefully perused aforesaid version put forth by the

witnesses of recovery, this Court finds considerable force in the argument of

Mr. Chitkara, that recovery, if any, of towel is not proved in accordance with

law, and as such, finding, if any, given by the FSL qua the same could not be

taken into consideration by the court below while ascertaining the guilt of the

accused.

33. After having perused statements/depositions having been

made by the material prosecution witnesses i.e PW1, PW2, PW8 and PW25, this

Court has no hesitation to conclude that prosecution has been not able to

prove beyond reasonable doubt that on the date of alleged incident,

prosecutrix, PW2 was subjected to sexual intercourse against her wishes

repeatedly, initially at the room of Atul PW25 and subsequently, in the room of

PW8 Minakshi. Statement of prosecutrix PW2, is full of contradictions and does

not inspire confidence, rather version putforth by her is not at all probable but

even if the same is examined/scrutinized in the light of the statements having

been made by other material prosecution witnesses i.e. PW8 and PW25, it

compels this Court to draw inference that story putforth by the prosecutrix is

not worth credence and court below wrongly placed heavy reliance upon

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the sole testimony of the prosecutrix, while holding accused guilty of having

committed offence punishable under Section 376 IPC.

34. There cannot be any quarrel with the proposition of law laid

.

down by the Hon’ble Apex Court in catena of pronouncements that in case

of rape, evidence of prosecutrix must be given predominant consideration,

and finding of guilt in case of rape can be based upon the uncorroborated

evidence of the prosecutrix, but apart from above, Hon’ble Apex court has

also held that if the story put forth by the prosecutrix is improbable and belies

logic, placing sole reliance upon her statement would be violence to the very

principles which govern the appreciation of evidence in a criminal matter. In

this regard, reliance is placed on judgment rendered by the Hon’ble Apex

Court in case titled Tameezduddin alias Tammu v. State of NCT of Delhi, (2009)

15 SCC 566, wherein it has been held as under:-

“9.It is true that in a case of rape the evidence of the prosecutrix
must be given predominant consideration, but to hold that this
evidence has to be accepted even if the story is improbable and

belies logic, would be doing violence to the very principles which
govern the appreciation of evidence in a criminal matter. We are
of the opinion that story is indeed improbable.

10.We note from the evidence that PW.1 had narrated the sordid
story to PW.2 on his return from the market and he had very
gracefully told the appellant that everything was forgiven and

forgotten but had nevertheless lured him to the police station. If
such statement had indeed been made by the PW2 there would
have been no occasion to even go to the police station.
Assuming, however, that the appellant was naive and unaware
that he was being lead deceitfully to the police station, once
having reached there he could not have failed to realize his
predicament as the trappings of a police station are familiar and
distinctive. Even otherwise, the evidence shows that the appellant
had been running a kirana shop in this area, and would, thus,
have been aware of the location of the Police Station. In this view
of the matter, some supporting evidence was essential for the
prosecution’s case.

11. As already mentioned above the medical evidence does not
support the commission of rape. Moreover, the two or three

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persons who were present in the factory premises when the rape
had been committed were not examined in Court as witnesses
though their statements had been recorded during the course of
the investigation.

12.In this background, merely because the vaginal swabs and the

.

salwar had semen stains thereon would, at best, be evidence of

the commission of sexual intercourse but not of rape. Significantly
also, the semen found was not co-related to the appellant as his
blood samples had not been taken. In this background the
evidence of the defence witness, Mohd. Zaki becomes very

relevant. This witness testified that there was no occasion for PW.2
to have come to the factory as no payment was due to him on
any account. The courts below were to our mind remiss in holding
that as no written accounts had been maintained by Mohd. Zaki
and no receipt relating to any earlier payment to PW.2 had been
produced by him, his testimony was not acceptable, the more so,
as the factory was a small one and Mohd. Zaki was a petty

factory owner.

13.We also see from the orders passed by this Court from time to
time and particularly the Order of 25th October, 2004 that the
counsel for the appellant had pointed out that though the

appellant had been sentenced to imprisonment for a term of
seven years, he had already exceeded that period but was still in

custody and he was accordingly bailed out after verifying this
fact on 16th November 2004. In normal circumstances we would
not have passed a detailed order in this background but as an
allegation of rape, is one of the most stigmatic of crimes, it calls
for intervention at any stage.”

35. Reliance is placed on judgment rendered by the Hon’ble Apex

Court in case titled Rajoo v. State of MP, AIR 2009 SC 858, wherein it has been

held as under:-

9. The aforesaid judgments lay down the basic principle that
ordinarily the evidence of a prosecutrix should not be suspect
and should be believed, the more so as her statement has to be

evaluated at par with that of an injured witness and if the
evidence is reliable, no corroboration is necessary. Undoubtedly,
the aforesaid observations must carry the greatest weight and we
respectfully agree with them, but at the same time they cannot
be universally and mechanically applied to the facts of every
case of sexual assault which comes before the Court. It cannot
be lost sight of that rape causes the greatest distress and
humiliation to the victim but at the same time a false allegation of
rape can cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected against the
possibility of false implication, particularly where a large number
of accused are involved. It must, further, be borne in mind that
the broad principle is that an injured witness was present at the
time when the incident happened and that ordinarily such a
witness would not tell a lie as to the actual assailants, but there is

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no presumption or any basis for assuming that the statement of
such a witness is always correct or without any embellishment or
exaggeration. Reference has been made in Gurmit Singh’s case
to the amendments in 1983 to Sections 375 and 376 of the India
Penal Code making the penal provisions relating to rape more
stringent, and also to Section 114A of the Evidence Act with

.

respect to a presumption to be raised with regard to allegations

of consensual sex in a case of alleged rape. It is however
significant that Sections 113A and 113B too were inserted in
the Evidence Act by the same amendment by which certain
presumptions in cases of abetment of suicide and dowry death
have been raised against the accused. These two Sections, thus,

raise a clear presumption in favour of the prosecution but no
similar presumption with respect to rape is visualized as
the presumption under Section 114A is extremely restricted in its
applicability. This clearly shows that in so far as allegations of rape
are concerned, the evidence of a prosecutrix must be examined
as that of an injured witness whose presence at the spot is

probable but it can never be presumed that her statement
should, without exception, be taken as the gospel truth.
Additionally her statement can, at best, be adjudged on the
principle that ordinarily no injured witness would tell a lie or
implicate a person falsely. We believe that it is under these
principles that this case, and others such as this one, need to be

examined.

10. Undoubtedly, the charge under section 366 of the IPC has not
been made out as per the findings of the courts below. We,
however, find that the evidence of rape is distinct from the other
charge and the matter should be examined in that background.
We are, accordingly, of the opinion that merely because the

accused have been acquitted for the offence punishable
under Section 366 of the IPC is ipso-facto no reason to disbelieve
the entire prosecution story on this solitary ground.

11. The veracity of the story projected by the prosecution qua

allegations of rape must, thus, be examined. It has come in the
evidence of PW8 that the prosecutrix had been married while a
child but her gauna had not been performed as her husband,

had, in the meanwhile, taken a second wife. The Doctor PW1 Dr.
Smt. Christian has, however, opined that the prosecutrix was so
habituated to sexual intercourse that it was not possible to
ascertain as to when she had last been subjected to it. It has also

come in the evidence of PW8 that the police had often
questioned the prosecutrix as to why she was indulging in
prostitution. The prosecutrix herself also admitted that she had
once been arrested in the Ajanta Hotel case but had been
bailed out by Shri Bansal, Advocate. It is indeed surprising that
though, as per her allegations, all 13 accused had assaulted her
one after the other, but the doctor did not find even a scratch on
her person. The trial court and the High Court have not accepted
the plea raised by the accused as to the adverse character of
the prosecutrix as the evidence on this score was not conclusive.
We are of the opinion, however, that in the light of the facts
mentioned above, it is probable that the prosecutrix was indeed
involved in some kind of improper activity.

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12. The other evidence in the matter would have to be examined
in this background. Primary emphasis has been placed by Mr.
Ranjit Kumar on the identification of the accused. It has been
submitted that the identification itself was faulty whereas the
State Counsel has argued to the contrary and submitted that as
the accused were known to the prosecutrix she had been in a

.

position to identify them. The question of identification is, to our

mind, the determining factor in this case. In the FIR the prosecutrix
has named four of the accused as having committed rape on
her, they being Nandoo, Bindu, Pintoo and Raju. PW8, who was
unsure, as to the identity of the accused, however, stated that
she knew Nandoo, Pyaru, Pawan, Pintoo and Raju but conceded

that she had not known any of the accused at the time of the
incident but after the police had enquired about the names of
the boys in her presence, she had come to know who they were.
It is also significant that the Court had recorded a note that even
after she had named the five accused she had been able to
identify only Pawan and she had not been able to identify any of

the other accused. She also stated that some of the boys had
been arrested on the day of the incident and that she had been
called to visit the police station several times to identify them and
that the police had often threatened her and her daughter that if
they did not come to the police station they would file a case
against them. In the last paragraph of her examination-in-chief

PW8 clearly stated that she was not in a position to identify the
boys at the time of incident or even in Court. It is significant that

the prosecutrix, her mother and all the accused were residents of
Ruabandha and as per the prosecutrix’s evidence she was aware
of the identity of only a few of them whom she had named in the
FIR. It is also significant that in her examination-in-chief the
prosecutrix stated that at the time when she had been taken
away on the Luna she did not know the names of the accused

who were taking her away and that she was not personally
acquainted with any of the boys at the time of incident and did
not know their names and was not in a position to recognize
them. In paragraph 46 of the evidence, this is what she had to
say:

“Police personnel had taken me to Police Station at about 2.30

O’clock in the night. Immediately after lodging the report there,
they came at the place of occurrence taking me there and had
got identified the accused persons having taken them out of their
houses. Then the police personnel had taken the accused

persons also at the Police Station. In that night nine boys had
been brought having arrested. Remaining five boys had been
brought by the police on the second day. I had identified those
also in the Police Station.

After arrest of nine-ten boys, they had taken near the house
where incident had taken place and they had asked to identify
the remaining boys. Then I had identified 4-5 boys from that
crowd. I had gone to the Police Station having sit in Daga with all
those boys. Witness now states that 2-3 boys had been arrested
from the houses, remaining 6-7 boys had been arrested from
Dance site, remaining 4-5 boys had been brought having
arrested on the second day.

I had not gone to the houses of the boys for identification. Police
personals had called them in the hotel and I used to identify them
there.”

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We are of the opinion that in the light of the categorical
statements of the two main prosecution witnesses, the
identification of the accused is extremely doubtful.

13. The test identification parade conducted by PW5 Sakharam
Mahilong, Naib Tehsildar is equally farcical. This witness stated that

.

36 persons in all, including 9 of the accused, had been

associated with the parade held by him on 30th December 1986
but he also admitted that the 9 accused had been covered with
black and brown coloured blankets. To our mind the only
inference that can be drawn from this admission is that similar and

distinctive blankets had been provided so as to facilitate the
identification of the accused. Moreover, in the light of the fact
that the witness had been shown to the prosecutrix not once but
several times while they were in police custody, the identification
parade held by PW5 is even otherwise meaningless.

14. The learned State counsel has, however, placed special

emphasis on the fact that the underwear handed over by the
accused to the investigating officer were found by the chemical
examiner to be stained with semen which corroborated
the prosecution story. In the light of the fact that we have found
the identification of the accused to be doubtful, the recovery of

the underwear becomes meaningless. But we have nevertheless
chosen to examine this submission as well. In this connection, we

have gone through the evidence of Durga Prasad Shukla PW10,
the investigating officer. We notice that the underwear of some
of the accused had been produced by them on 29th December
1986 whereas the remaining accused had likewise produced their
underwear on the 2nd of January 1987. We find it some what
difficult to believe that the accused had themselves provided the

evidence of having committed rape soon after the incident, and
even more surprising, that some of them had done so three days
after the incident. The recovery of the stained underwear is a
factor which, by itself, cannot support a case of rape against the
accused.

15. On an examination of the entire evidence, we are of the
opinion that it would be difficult to conclusively show the

involvement of each of the accused beyond reasonable doubt.

To our mind the truth and falsehood are so
inextricably intertwined, that it is impossible to discern where one
ends and the other begins.

16. As already noted above Raju, son of M. Billya did not file an
appeal in this court. In the light of the fact that we have found
the prosecution story to be doubtful, Raju too must be given the
benefit of doubt in the light of the judgments in Raja Ram Ors.
Vs. State of M.P. (1994) 2 SCC 568, Arokia Thomas vs. State of T.N.
(2006) 10 SCC 542 and Suresh Chaudhary etc. vs. State of Bihar
(2003) 4 SCC 128. We, accordingly allow the appeals and acquit
the present appellants, as also Raju son of M. Billya.

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36. Reliance is placed on judgment rendered by the Hon’ble

Supreme Court in case titled Radhu v State of Madhya Pradesh, (2007) 12 SCC

57, wherein it has been held as under:-

.

“6. It is now well settled that a finding of guilt in a case of rape,
can be based on the uncorroborated evidence of the
prosecutrix. The very nature of offence makes it difficult to get
direct corroborating evidence. The evidence of the prosecutrix

should not be rejected on the basis of minor discrepancies and
contradictions. If the victim of rape states on oath that she was
forcibly subjected to sexual intercourse, her statement will
normally be accepted, even if it is uncorroborated, unless the
material on record requires drawing of an inference that there
was consent or that the entire incident was improbable or
imaginary. Even if there is consent, the act will still be a ‘rape’, if

the girl is under 16 years of age. It is also well settled that absence
of injuries on the private parts of the victim will not by itself falsify
the case of rape, nor construed as evidence of consent. Similarly,
the opinion of a doctor that there was no evidence of any sexual
intercourse or rape, may not be sufficient to disbelieve the
accusation of rape by the victim. Bruises, abrasions and scratches

on the victim especially on the forearms, writs, face, breast, thighs
and back are indicative of struggle and will support the

allegation of sexual assault. The courts should, at the same time,
bear in mind that false charges of rape are not uncommon. There
have also been rare instances where a parent has persuaded a
gullible or obedient daughter to make a false charge of a rape
either to take revenge or extort money or to get rid of financial

liability. Whether there was rape or not would depend ultimately
on the facts and circumstances of each case.”

7. Sumanbai (PW-3) stated in her evidence that when she entered
the hut of Gyarsibai responding to her invitation, Radhu who was

inside the hut, shut the door and forcibly committed rape by
inserting his penis twice; that when she started crying, Radhu
gagged her with cloth and kept her confined in the room during

the night and released her only the next day morning; and that
thereafter she went and informed her mother as to what
happened. This version is in consonance with her report of the
incident recorded in the FIR (Ex.P5) which was read over and

accepted by her in her evidence. Lalithabai (PW-4) stated that
when her daughter returned on Tuesday morning and told her
that Radhu had raped her by force the whole night. Significantly,
the prosecutrix, in her cross-examination, has given a completely
different version. She stated that when Radhu committed the
‘bad’ act by inserting his penis twice, she fainted and remained
unconscious throughout the night; that she came back to her
senses only the next day morning; that she did not know what
happened during the night; that when she regained
consciousness and walked out of the place, Radhu was present
but Gyarsibai was elsewhere. She also asserted that she told the
police that she had become unconscious when the ‘bad’ act was
committed. If she lost consciousness when the alleged act was
committed, and if she regained consciousness only the next
morning and left the house of Gyarsibai without any obstruction,

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the prosecution case that the prosecutrix was gagged by Radhu,
that the prosecutrix was confined in his house during the entire
night by use of force by Radhu, that she was freed by Radhu only
the next morning, becomes false.

8. In her examination-in-chief, Sumanbai categorically stated that

.

Gyarsibai called her to her house when she was going to the shop

of Sony for buying sugar and tea. In her oral report of the incident
registered as FIR (Ex.P5), she had stated that she went to
Gyarsibai’s house, while on the way to the shop. But in the cross-
examination, she stated that Gyarsibai called her when she was

coming back from the shop after purchasing tea and sugar. She
also stated that she could not tell the value of the goods
purchased by her at that time. Thus, the prosecution case that
the incident occurred when she was going to the shop to
purchase tea and sugar is not proved.

9. Sumanbai stated that the incident took place on Monday

night, that she returned on Tuesday morning and her father
returned on Wednesday, that she and her father went to the
house of Gulabbai and Ram Lal at Barud and she narrated the
incident to Ramlal, that Ramlal also accompanied them to the
Barud Police Station. Sumanbai’s mother Lalita Bai (PW4) also

stated that on Wednesday her husband took their daughter
Sumanbai to Barud Police Station, and that after returning from

the Police Station, her husband told her that they had also taken
her brother Ram Lal, who resided at Barud, to the Police Station.
Mangilal (PW-7) father of Sumanbai, did not mention about Ram
Lal or his wife Gulabbai in his examination in chief. However, in his
cross-examination, he stated that he went to the house of his
relative Ramlal at Barud and Ramlal accompanied them to the

police station. But, Ram Lal was not examined. Ram Lal’s wife
Gulab Bai, examined as PW-5, was declared hostile and she
denied that Mangilal and Sumanbai visited their house and
informed them about the incident. She also stated that neither
she nor her husband accompanied Sumanbai to the Police

Station. Therefore the prosecution case that Sumanbai and her
father informed Ramlal about the incident on 30.1.1991 appears
to be doubtful.

10. Sumanbai’s mother Lalithabai states that when Sumanbai did
not return on Monday night, she and her son-in-law Ramesh
searched for her up to 3 a.m. on Tuesday morning. In her cross-

examination, she stated that she searched for Sumanbai in the
village, and that she also asked Gyarsibai about Sumanbai. In the
cross-examination, she stated that she did not remember whose
houses she went to enquire about her daughter, and that she did
not remember whether she had gone to anyone’s house at all.
Lalithabai further stated that she told her son-in-law Ramesh
about the incident and asked him to go to Chacharia to inform
her husband about the incident and to bring him back. Mangilal
also said his son-in-law came and informed him about the
incident. Sumanbai stated that her brother-in-law was sent to
bring back her father; that her brother-in-law’s name is Ramesh
but the SHO wrongly wrote his name as Dinesh in the FIR.
Significantly, Dinesh or Ramesh, brother-in- law of Sumanbai was
not examined to corroborate that there was a search for

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Sumanbai on the night of 28.1.1991 or that he was appraised
about the incident by his mother-in-law on 29.1.1991 and that he
went and informed his father-in-law about the incident.

11. Thus the two persons (other than the parents) who were
allegedly informed about the incident namely Ramesh (on

.

29.1.1991) and Ramlal (on 30.1.1991) were not examined and

consequently there is no corroboration.

12. Dr. Vandana (PW-8) stated that on examination of Sumanbai,
she found that her menstrual cycle had not started and pubic

hair had not developed, and that her hymen was ruptured but
the rupture was old. She stated that there were no injuries on her
private parts and she could not give any opinion as to whether
any rape had been committed. These were also recorded in the
examination Report (Ex. P8). She, however, referred to an
abrasion on the left elbow and a small abrasion on the arm and a
contusion on the right leg, of Sumanbai. She further stated that

she prepared two vaginal swabs for examination and handed it
over along with the petticoat of Sumanbai to the police
constable, for being sent for examination. But no evidence is
placed about the results of the examination of the vaginal swabs
and petticoat. Thus, the medical evidence does not corroborate

the case of sexual intercourse or rape.

13. We are thus left with the sole testimony of the prosecutrix and
the medical evidence that Sumanbai had an abrasion on the left
elbow, an abrasion on her arm and a contusion on her leg. But
these marks of injuries, by themselves, are not sufficient to
establish rape, wrongful confinement or hurt, if the evidence of
the prosecutrix is found to be not trustworthy and there is no

corroboration.

14. Lalithabai says that when Sumanbai did not return, she
enquired with Gyarsibai. Sumanbai also says that she used to

often visit the house of Gyarsibai. She says that Radhu’s parents
are kaka and baba of her mother and Radhu was her maternal
uncle. The families were closely related and their relationship was

cordial. In the circumstances, the case of the prosecution that
Gyarsibai would have invited Sumanbai to her house to abet her
son Radhu to rape Sumanbai and that Gyarsibai was present in
the small house during the entire night when the rape was
committed, appears to be highly improbable in the light of the

evidence and circumstances.

15. The FIR states that one Dinesh was sent by Lalithabai to fetch
her husband. Lalitabai and Mangilal have stated that they did
not know anyone by the name Dinesh. Sumanbai stated in her
evidence that on 29.1.1991, as her father was away, her brother-
in-law went to bring back her father, that the name of her
brother-in-law is Ramesh, but the SHO wrongly wrote his name as
‘Dinesh’. But none else mentioned about such a mistake. Neither
Ramesh nor Dinesh was examined.

16. The evidence of the prosecutrix when read as a whole, is full
of discrepancies and does not inspire confidence. The gaps in the
evidence, the several discrepancies in the evidence and other

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circumstances make it highly improbable that such an incident
ever took place. The learned counsel for the respondent
submitted that defence had failed to prove that Mangilal, father
of prosecutrix was indebted to Radhu’s father Nathu and
consequently, defence of false implication of accused should be
rejected. Attention was invited to the denial by the mother and

.

father of the prosecutrix, of the suggestion made on behalf of the

defence, that Sumanbai’s father Mangilal was indebted to
Radhu’s father Nathu and because Nathu was demanding
money, they had made the false charge of rape, to avoid
repayment. The fact that the defence had failed to prove the
indebtedness of Mangilal or any motive for false implication, does

not have much relevance, as the prosecution miserably failed to
prove the charges. We are satisfied that the evidence does not
warrant a finding of guilt at all, and the Trial Court and High Court
erred in returning a finding of guilt.

17. We, therefore, allow the appeal, set aside the judgments of

the courts below and acquit the accused of all charges.”

37. Reliance is placed on judgment rendered by the Hon’ble

Supreme Court in case titled Vimal Suresh Kamble v. Chaluverapinake Apal

SP (2003) 3 SCC 175, wherein it has been held as under:-

“18. However, the evidence of the prosecutrix does not inspire

confidence. The occurrence took place at about 12.30 p.m. on a
Sunday. The High Court has observed that on a Sunday, if the
prosecutrix had raised an alarm it would have been heard by
many persons who would have immediately come to her rescue,

particularly in such a society where the respondent No.1 resided.
On a Sunday most of the residents are at home at about 12.30
p.m. and, therefore, it was surprising that no one heard the cries

of the appellant when she was raped by respondent No.1. There
after also the conduct of the prosecutrix is rather surprising. She
was loitering in the locality till about 2.30 p.m. i.e. for about 2 hours
after the incident. She again went to the flat of respondent No.1
on the second floor after having come down immediately after

the occurrence. The reason given by her is that she wanted to
return the keys to respondent No.1. At one stage she stated she
had decided to handover the keys to one of the neighbours, but
actually she did not handover the keys to anyone. When she
went up to the flat of respondent No.1 she met PW.2 and his wife.
But she did not tell them about the incident. She then came back
home and went to sleep. In the evening when her husband came
she did not report the incident to him. At night, as usual, she
cooked food for the family and went to sleep. Next morning she
came to the society and attended to her routine work.
Admittedly she worked in four flats on that day but she did not
report the matter to anyone. Later in the afternoon she went to
the house of her brother. It is there for the first time that she
reported the matter to her sister-in- law Smt. Tarabai, who has not

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been examined. Only thereafter they went to the police station
and lodged the report at about 3.00 p.m.

19.Respondent No.1 in his examination under Section 313 Cr. P.C.
stated that the case had been fabricated only to extort money.
He was a resident of the State of Karnataka and that is why PW.4

.

Manohar Sawant, a Shivsena leader, supported the prosecutrix. A

false case had been lodged against him. On 25th April, 1992 the
prosecutrix had asked him for some money but he refused to pay
her saying that her salary had already been paid by his wife. On
26th April, 1992 she again came to him and again demanded

money which he refused. She threatened him saying that if he did
not give her money, he will have to face the consequences. In
sum and substance, the defence of respondent No.1 appears to
be that no such occurrence took place at all and a false case
had been filed to extort money from respondent No.1 who was a
government employee.

20.In cross-examination PW.1 (prosecutrix) asserted that she was
determined to lodge a complaint. She also knew that taking bath
would cause disappearance of the evidence of rape and yet she
took a bath as she was feeling dirty. Thereafter she went to sleep.

21.On an overall appreciation of the evidence of the prosecutrix
and her conduct we have come to the conclusion that PW.1 is

not a reliable witness. We, therefore, concur with the view of the
High Court that a conviction cannot be safely based upon the
evidence of the prosecutrix alone. It is no doubt true that in law
the conviction of an accused on the basis of the testimony of the
prosecutrix alone is permissible, but that is in a case where the
evidence of the prosecutrix inspires confidence and appears to

be natural and truthful. The evidence of the prosecutrix in this
case is not of such quality, and there is no other evidence on
record which may even lend some assurance, short of
corroboration that she is making a truthful statement. We,
therefore, find no reason to disagree with the finding of the High

Court in an appeal against acquittal. The view taken by the High
Court is a possible, reasonable view of the evidence on record
and, therefore, warrants no interference. This appeal is dismissed.”

38. It is quite apparent from the aforesaid exposition of law that

ordinarily, the evidence of prosecutrix should not be suspected and should be

believed and if the evidence is reliable, no corroboration is necessary, but the

Hon’ble Apex Court in the aforesaid judgments, has very carefully observed

that statement made by the prosecutrix cannot be universally and

mechanically applied to the facts of every case of sexual assault which

comes before the Court because rape cases cause the greatest distress and

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humiliation to the victim but at the same time, false allegation of rape can

cause equal distress, humiliation and damage to the accused as well. The

Hon’ble Apex Court in Rajoo v. State of MP (supra), has categorically held that

.

the accused must also be protected against the possibility of false implication

and it must be borne in mind that the broad principle is that an injured witness

was present at the time when the incident happened and that ordinarily such

a witness would not tell a lie as to the actual assailants, but there is no

presumption or any basis for presuming that the statement of such a witness is

always correct or without any embellishment or exaggeration. In the case at

hand, as has been discussed in detail, statement of prosecutrix is full of

contradictions and story put forth by her is highly improbable. Evidence

available on record clearly suggests that it was prosecutrix, who of her own

volition, joined the company of the accused and thereafter, came to Shimla

from Rohru. PW8 and PW25 have categorically deposed before the court

below that they joined the company of the prosecutrix and accused on the

askance of the prosecutrix as they were of her prior acquaintance.

Statements having been made by PW8 and PW25 clearly suggest that they

remained throughout with the accused and prosecutrix on the dates of

alleged incident, coupled with the fact that nothing has emerged in the

medical evidence suggestive of the fact that prosecutrix was subjected to

sexual intercourse in recent times. Leaving everything aside, it has specifically

come in the statement of prosecutrix that she wanted to marry accused. She

categorically stated in her cross-examination that she lodged FIR against the

accused to pressurize him to solemnize marriage with her. If evidence, be it

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ocular and documentary, is read in its entirety, it nowhere indicates that

prosecutrix was subjected to sexual intercourse by the accused and as such,

her sole testimony being highly improbable, deserves to be rejected

.

outrightly, especially, when same has been not corroborated by any of the

material prosecution witnesses.

39. The Hon’ble Supreme Court in case titled Rai Sandeep @ Deepu

v. State (NCT) of Delhi, 2012 (8) SCC 21, has held that sterling witness should

be of a very high quality and caliber, whose version should, therefore, be

unassailable. The Hon’ble Apex Court has held that such witness should be in

a position to accept it for its face value without any hesitation. To test the

quality of such a witness, the status of the witness would be immaterial and

what would be relevant is the truthfulness of the statement made by such a

witness. What would be more relevant would be the consistency of the

statement right from the starting point till the end. Relevant paras of the

judgment is reproduced herein below:-

22. In our considered opinion, the ‘sterling witness’ should be of a
very high quality and caliber whose version should, therefore, be

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

truthfulness of the statement made by such a witness. What would
be more relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the
Court. It should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness should
be in a position to withstand the cross- examination of any length
and howsoever strenuous it may be and under no circumstance
should give room for any doubt as to the factum of the
occurrence, the persons involved, as well as, the sequence of it.
Such a version should have co-relation with each and everyone
of other supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the scientific

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evidence and the expert opinion. The said version should
consistently match with the version of every other witness. It can
even be stated that it should be akin to the test applied in the
case of circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the accused
guilty of the offence alleged against him. Only if the version of

.

such a witness qualifies the above test as well as all other similar

such tests to be applied, it can be held that such a witness can
be called as a ‘sterling witness’ whose version can be accepted
by the Court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain

intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version
in material particulars in order to enable the Court trying the
offence to rely on the core version to sieve the other supporting
materials for holding the offender guilty of the charge alleged.

23.On the anvil of the above principles, when we test the version
of PW- 4, the prosecutrix, it is unfortunate that the said witness has
failed to pass any of the tests mentioned above. There is total
variation in her version from what was stated in the complaint and
what was deposed before the Court at the time of trial. There are
material variations as regards the identification of the accused

persons, as well as, the manner in which the occurrence took
place. The so-called eye witnesses did not support the story of the

prosecution. The recoveries failed to tally with the statements
made. The FSL report did not co-relate the version alleged and
thus the prosecutrix failed to instill the required confidence of the
Court in order to confirm the conviction imposed on the
appellants.

24. With the above slippery evidence on record against the
appellants when we apply the law on the subject, in the decision
reported in State of Punjab v. Gurmit Singh Ors. (supra), this
Court was considering the case of sexual assault on an young girl

below 16 years of age who hailed from a village and was a
student of 10th standard in the Government High School and that
when she was returning back to her house she was kidnapped by

three persons. The victim was stated to have been taken to a
tubewell shed of one of the accused where she was made to
drink alcohol and thereafter gang raped under the threat of
murder. The prosecutrix in that case maintained the allegation of

kidnapping as well as gang rape. However, when she was not
able to refer to the make of the car and its colour in which she
was kidnapped and that she did not raise any alarm, as well as,
the delay in the lodging of the FIR, this Court held that those were
all circumstances which could not be adversely attributed to a
minor girl belonging to the poor section of the society and on that
score, her version about the offence alleged against the accused
could not be doubted so long as her version of the offence of
alleged kidnapping and gang rape was consistent in her
evidence. We, therefore, do not find any scope to apply
whatever is stated in the said decision which was peculiar to the
facts of that case, to be applied to the case on hand.

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25. In the decision reported in Ashok Kumar v. State of
Haryana (supra), this court while dealing with the offence
under Section 376 (2) (g) IPC read with explanation held as under
in Para 8:

“8.Charge against the appellant is under Section 376(2)(g) IPC. In

.

order to establish an offence under Section 376(2)(g) IPC, read

with Explanation I thereto, the prosecution must adduce
evidence to indicate that more than one accused had acted in
concert and in such an event, if rape had been committed by
even one, all the accused will be guilty irrespective of the fact

that she had been raped by one or more of them and it is not
necessary for the prosecution to adduce evidence of a
completed act of rape by each one of the accused. In other
words, this provision embodies a principle of joint liability and the
essence of that liability is the existence of common intention; that
common intention presupposes prior concert which may be
determined from the conduct of offenders revealed during the

course of action and it could arise and be formed suddenly, but,
there must be meeting of minds. It is not enough to have the
same intention independently of each of the offenders. In such
cases, there must be criminal sharing marking out a certain
measure of jointness in the commission of offence.”

26. Applying the above principle to the case on hand, we find

that except the ipse-dixit of the prosecutrix that too in her chief
examination, with various additions and total somersault in the
cross examination with no support at all at the instance of her
niece and nephew who according to her were present in the
house at the time of occurrence, as well as, the FSL report which
disclosed the absence of semen in the socks which was stated to

have been used by the accused as well as the prosecutrix to
wipe of semen, apart from various other discrepancies in the
matter of recoveries, namely, that while according to the
prosecutrix the watch snatched away by the accused was ‘Titan’
while what was recovered was ‘Omex’ watch, and the chain

which was alleged to have been recovered at the instance of
the accused admittedly was not the one stolen, all the above
factors do not convincingly rope in the accused to the alleged

offence of ‘gang rape’ on the date and time alleged in the
chargesheet.

27. In the decision reported as State of Himachal Pradesh v. Asha

Ram – AIR 2006 SC 381, this Court highlighted the importance to
be given to the testimony of the prosecutrix as under in para 5:

5. ………………………..It is now well-settled principle of law that
conviction can be founded on the testimony of the prosecutrix
alone unless there are compelling reasons for seeking
corroboration. The evidence of a prosecutrix is more reliable than
that of an injured witness. The testimony of the victim of sexual
assault is vital, unless there are compelling reasons which
necessitate looking for corroboration of her statement, the courts
should find no difficulty in acting on the testimony of a victim of
sexual assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It is also a well-
settled principle of law that corroboration as a condition for

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judicial reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under the given
circumstances. The evidence of the prosecutrix is more reliable
than that of an injured witness. Even minor contradictions or
insignificant discrepancies in the statement of the prosecutrix
should not be a ground for throwing out an otherwise reliable

.

prosecution case.” (emphasis added)

28. That was a case where the father alleged to have committed
the offence of rape on one of his daughters who was staying with
him while his wife was living separately due to estranged

relationship. While dealing with the said case, where the
prosecutrix, namely, the daughter, apart from the complaint
lodged by her, maintained her allegation against her father in the
Court as well. This Court held that the version of the prosecutrix in
the facts and circumstances of that case merited acceptance
without any corroboration, inasmuch as, the evidence of rape
victim is more reliable even that of an injured witness. It was also

laid down that minor contradictions and discrepancies are
insignificant and immaterial in the case of the prosecutrix can be
ignored.

29. As compared to the case on hand, we find that apart from

the prosecutrix not supporting her own version, the other oral as
well as forensic evidence also do not support the case of the

prosecution. There were material contradictions leave alone lack
of corroboration in the evidence of the prosecutrix. It cannot be
said that since the prosecutrix was examined after two years
there could be variation. Even while giving allowance for the time
gap in the recording of her deposition, she would not have come
forward with a version totally conflicting with what she stated in

her complaint, especially when she was the victim of the alleged
brutal onslaught on her by two men that too against her wish. In
such circumstances, it will be highly dangerous to rely on such
version of the prosecutrix in order to support the case of the
prosecution.

30. In the decision reported as Lalliram Anr. v. State of Madhya
Pradesh (supra) in regard to an offence of gang rape falling

under Section 376 (2) (g) this Court laid down the principles as
under in paras 11 and 12:

“11. It is true that injury is not a sine qua non for deciding whether

rape has been committed. But it has to be decided on the
factual matrix of each case. As was observed by this Court
in Pratap Misra v. State of Orissa where allegation is of rape by
many persons and several times but no injury is noticed that
certainly is an important factor and if the prosecutrix’s version is
credible, then no corroboration is necessary. But if the
prosecutrix’s version is not credible then there would be need for
corroboration. (See Aman Kumar v. State of Haryana.)

12. As rightly contended by learned counsel for the appellants, a
decision has to be considered in the background of the factual
scenario. In criminal cases the question of a precedent
particularly relating to appreciation of evidence is really of no
consequence. In Aman Kumar case it was observed that a
prosecutrix complaining of having been a victim of the offence of

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rape is not an accomplice. There is no rule of law that her
testimony cannot be acted upon without corroboration in
material particulars. She stands on a higher pedestal than the
injured witness. In the latter case there is injury in the physical form
while in the former both physical as well as psychological and
emotional. However, if the court finds it difficult to accept the

.

version of a prosecutrix on the face value, it may search for

evidence direct or circumstantial.” (emphasis added)

31. When we apply the above principles to the case on hand, we
find the prevaricating statements of the prosecutrix herself in the

implication of the accused to the alleged offence of gang rape.
There is evidence on record that there was no injury on the breast
or the thighs of the prosecutrix and only a minor abrasion on the
right side neck below jaw was noted while according to the
prosecutrix’s original version, the appellants had forcible sexual
intercourse one after the other against her. If that was so, it is hard
to believe that there was no other injury on the private parts of

the prosecutrix as highlighted in the said decision. When on the
face value the evidence is found to be defective, the attendant
circumstances and other evidence have to be necessarily
examined to see whether the allegation of gang rape was true.
Unfortunately, the version of the so called eye witnesses to at
least the initial part of the crime has not supported the story of the

prosecution. The attendant circumstances also do not co-relate
to the offence alleged against the appellants. Therefore, in the

absence of proper corroboration of the prosecution version to the
alleged offence, it will be unsafe to sustain the case of the
prosecution.

32. In the decision reported as Krishan Kumar Malik v. State of

Haryana (supra) in respect of the offence of gang rape
under Section 376 (2) (g), IPC, it has been held as under in paras
31 and 32:

“31. No doubt, it is true that to hold an accused guilty for

commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires confidence
and appears to be absolutely trustworthy, unblemished and

should be of sterling quality. But, in the case in hand, the
evidence of the prosecutrix, showing several lacunae, which
have already been projected hereinabove, would go to show
that her evidence does not fall in that category and cannot be

relied upon to hold the appellant guilty of the said offences.

32. Indeed there are several significant variations in material facts
in her Section 164statement, Section 161 statement (CrPC), FIR
and deposition in court. Thus, it was necessary to get her
evidence corroborated independently, which they could have
done either by examination of Ritu, her sister or Bimla Devi, who
were present in the house at the time of her alleged abduction.
The record shows that Bimla Devi though cited as a witness was
not examined and later given up by the public prosecutor on the
ground that she has been won over by the appellant.” (emphasis
added)

33. Applying the said principles to the facts of the case on hand,
we find that the solitary version of the chief examination of PW-4,

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the prosecutrix cannot be taken as gospel truth for its face value
and in the absence of any other supporting evidence, there is no
scope to sustain the conviction and sentence imposed on the
appellants.

34. The prosecution has miserably failed to establish the guilt of

.

gang rape falling under Section 376(2) (g), IPC against the

appellants. The conviction and sentence imposed on the
appellants by the trial Court and confirmed by the impugned
order of the High Court cannot, therefore, be sustained. The
appeals are allowed. The judgment and order of conviction and

sentence passed by the trial Court and confirmed by the High
Court are hereby set aside. The appellants are acquitted of all
the charges and they be set at liberty forthwith, if not required in
any other case.

40. Reliance is also placed on judgment rendered by the Hon’ble

Supreme Court in case titled Narender Kumar v. State (NCT of Delhi), 2012 (7)

SCC 171, wherein it has been held as under:-

28. The courts while trying an accused on the charge of rape,

must deal with the case with utmost sensitivity, examining the
broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the evidence of
witnesses which are not of a substantial character.

29.However, even in a case of rape, the onus is always on the
prosecution to prove, affirmatively each ingredient of the offence
it seeks to establish and such onus never shifts. It is no part of the
duty of the defence to explain as to how and why in a rape case
the victim and other witness have falsely implicated the accused.

Prosecution case has to stand on its own legs and cannot take
support from the weakness of the case of defence. However
great the suspicion against the accused and however strong the

moral belief and conviction of the court, unless the offence of the
accused is established beyond reasonable doubt on the basis of
legal evidence and material on the record, he cannot be
convicted for an offence. There is an initial presumption of

innocence of the accused and the prosecution has to bring
home the offence against the accused by reliable evidence. The
accused is entitled to the benefit of every reasonable doubt.
(Vide: Tukaram Anr. v. The State of Maharashtra,, AIR 1979 SC
185; and Uday v. State of Karnataka, AIR 2003 SC 1639).

30. Prosecution has to prove its case beyond reasonable doubt
and cannot take support from the weakness of the case of
defence. There must be proper legal evidence and material on
record to record the conviction of the accused. Conviction can
be based on sole testimony of the prosecutrix provided it lends
assurance of her testimony. However, in case the court has
reason not to accept the version of prosecutrix on its face value,
it may look for corroboration. In case the evidence is read in its

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totality and the story projected by the prosecutrix is found to be
improbable, the prosecutrix case becomes liable to be rejected.

31.The court must act with sensitivity and appreciate the
evidence in totality of the background of the entire case and not
in the isolation. Even if the prosecutrix is of easy virtue/unchaste

.

woman that itself cannot be a determinative factor and the court

is required to adjudicate whether the accused committed rape
on the victim on the occasion complained of.

32. The instant case is required to be decided in the light of the

aforesaid settled legal propositions. We have appreciated the
evidence on record and reached the conclusions mentioned
hereinabove. Even by any stretch of imagination it cannot be
held that the prosecutrix was not knowing the appellant prior to
the incident. The given facts and circumstances, make it crystal
clear that if the evidence of the prosecutrix is read and
considered in totality of the circumstances alongwith the other

evidence on record, in which the offence is alleged to have
been committed, we are of the view that her deposition does not
inspire confidence. The prosecution has not disclosed the true
genesis of the crime. In such a fact-situation, the appellant
becomes entitled to the benefit of doubt.

33.In view of above, the appeals succeed and are allowed. The

judgment and order dated 25.3.2009 passed by the High Court of
Delhi in Criminal Appeal No. 53 of 2000 and that of the trial court
dated 7.12.1999 are hereby set aside. The appellant is on bail, his
bail bond stands discharged.”

41. Reliance is placed on judgment rendered by the Hon’ble

Supreme Court in case titled Abbas Ahmad Choudhary v. State of Assam

(2010) 12 SCC 115, wherein it has been held as under:-

9. We are however, of the opinion that the involvement of Abbas

Ahmad Choudhary seems to be uncertain. It must first be borne in
mind that in her statement recorded on 17th September, 1997,
the prosecutrix had not attributed any rape to Abbas Ahmad
Choudhary. Likewise, she had stated that he was not one of those

who kidnapped her and taken to Jalalpur Tea Estate and on the
other hand she categorically stated that while she along with
Mizazul Haq and Ranju Das were returning to the village that he
had joined them somewhere along the way but had still not
committed rape on her. It is true that in her statement in court she
has attributed rape to Abbas Ahmad Choudhary as well, but in
the light of the aforesaid contradictions some doubt is created
with regard to his involvement.

10.Some corraboration of rape could have been found if Abbas
Ahmad Choudhary too had been apprehended and taken to
the police station by P.W. 5 -Ranjit Dutta the Constable. The
Constable, however, made a statement which was corraborated
by the Investigating Officer that only two of the appellants Ranju
Das and Md. Mizalul Haq along with the prosecutrix had been
brought to the police station as Abbas Ahmad Choudhary had

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run away while en route to the police station. Resultantly, an
inference can be rightly drawn that Abbas Ahmad Choudhary
was perhaps not in the car when the complainant and two of the
appellants had been apprehended by Constable Ranjit Dutta.

11.We are, therefore, of the opinion that the involvement of
Abbas Ahmad Choudhary is doubtful. We are conscious of the

.

fact that in a matter of rape, the statement of the prosecutrix

must be given primary consideration, but, at the same time, the
broad principle that the prosecution has to prove its case beyond
reasonable doubt applies equally to a case of rape and there
can be no presumption that a prosecutrix would always tell the
entire story truthfully.

42. Reliance is placed on judgment rendered by the Hon’ble

Supreme Court in case titled Dinesh Jaiswal v. State of MP, (2010) 3 SCC 232,

wherein it has been held as under:-

“10.Mr. C.D. Singh has however placed reliance on Moti Lal’s case
(supra) to contend that the evidence of the prosecutrix was liable

to be believed save in exceptional circumstances. There can be
no quarrel with this proposition (and it has been so emphasised by

this Court time and again) but to hold that a prosecutrix must be
believed irrespective of the improbabilities in her story, is an
argument that can never be accepted. The test always is as to
whether the given story prima facie inspires confidence. We are
of the opinion that the present matter is indeed an exceptional
one.

11.As already mentioned above, in our opinion, the story given by
the prosecutrix does not inspire confidence. We thus allow this
appeal, set aside the impugned judgments and direct that the
appellant be acquitted.”

43. Now, if this Court proceeds to test the version of prosecutrix

(PW2) on the anvil of principles laid down in the aforesaid judgment, it has no

hesitation to conclude that testimony of prosecutrix is not worth credence as

there is total variation in her version; what was stated in the complaint and

what was deposed before the court at the time of trial. Similarly, there are

material contradictions in her version with regard to her having met accused

for the first time at Rohru and her meeting PW25 Atul and PW8 Minakshi at

Rohru and Shimla, respectively. Similarly, prosecution failed to prove the

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recovery of Towel Ext.6/A. Medical/FSL report nowhere co-relates the version

of the prosecutrix that she was subjected to sexual intercourse by the

accused and as such, prosecutrix failed to instill the required confidence to

.

bring home the guilt, if any, of the appellant-accused.

44. Though having carefully perused and examined the evidence,

available on record, this Court is of the definite view that prosecution has

failed to prove that prosecutrix was subjected to sexual intercourse as alleged

by her on the alleged date of incident but yet there is another aspect of the

matter, if it is examined from another angle. It is not the case of the

prosecutrix that she agreed to have sexual intercourse with the accused

believing that he is likely to marry her and definitely, there was no mis-

conception of fact, rather specific allegation of prosecutrix is that she told

accused to wait for sex until marriage, but he did not agree and forced him

upon her and committed rape. Careful perusal of initial statement having

been made by the prosecutrix under Section 154 Cr.PC/complaint Ext.PW2/A

suggests that she alleged that accused forcibly established sexual relations

with her at Cemetery at Shimla. She again in her statement recorded under

Section 164 Cr.PC claimed that accused forcibly established physical relations

with her despite her saying no to it and she requested him to wait till the

marriage. In her statement before the court below, she stated that PW25 Atul

left the room in the morning and thereafter, accused Vikram committed

sexual intercourse with her without her consent forcibly. She further stated

that she asked the accused to perform marriage first, but her request was

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ignored by the accused, who thereafter committed forcible intercourse by

laying mattress on the floor of the room.

45. Though as has been categorically concluded by this Court

.

(supra) that having perused evidence, this Court is convinced and satisfied

that there is no evidence worth the name that prosecutrix was subjected to

sexual intercourse on the date of alleged incident initially at the residence of

PW25 and subsequently, at the room of PW8 Minakshi, but even if statement

of PW2 Prosecutrix is presumed to be correct, it compels this Court to draw an

inference that there is no mis-conception of fact as far as prosecutrix is

concerned, rather statement of prosecutrix suggests that she of her own

agreed to have intercourse with the accused, because she herself, stated

that she requested accused to wait till marriage, but he forcibly committed

intercourse. It has also come in her statement that she asked the accused to

perform marriage first. Aforesaid statement having been made by

prosecutrix does indicate that she was fully aware of the moral quality and

inherent risk involved and she having considered the pros and cons of the

act, subjected herself to wishes of the accused. It is not in dispute that at the

time of alleged incident, prosecutrix was major and was capable of

understanding the consequences of her having joined the company of the

accused, especially when the accused had allegedly brought her to Shimla

on the pretext of marriage. It also emerges from the statement of prosecutrix

and PW8 Minakshi that she wanted to marry accused, but parents of the

accused were not in favour of the same, that is why, they decided to elope,

meaning thereby, the prospect of marriage proposal not materializing was

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very much in the mind of prosecutrix, but despite that she joined the

company of the accused, who allegedly despite her opposition, sexually

assaulted her, but as has been taken note herein above, statement of

.

prosecutrix clearly reveals/indicates that her participation in the sexual act

was voluntary and deliberate. In this regard, reliance is placed on judgment

rendered by the Hon’ble Supreme Court in case titled Deelip Singh @ Dilip

Kumar v. State of Bihar, 2005 (1) SCC 88, wherein it has been held as under:-

2.The victim girl lodged a complaint to the police on 29.11.1988
i.e., long after the alleged act of rape. By the date of the report,
she was pregnant by six months. Broadly, the version of the victim
girl was that she and the accused were neighbours and fell in
love with each other and one day, the accused forcibly raped
her and later consoled her saying that he would marry her, that

she succumbed to the entreaties of the accused to have sexual

relations with him, on account of the promise made by him to
marry her and therefore continued to have sex on several
occasions. After she became pregnant, she revealed the matter
to her parents. Even thereafter the intimacy continued to the
knowledge of the parents and other relations who were under the
impression that the accused would marry the girl but the accused

avoided to marry her and his father took him out of the village to
thwart the bid to marry. The efforts made by the father to
establish the marital tie failed and therefore she was constrained
to file the complaint after waiting for sometime.

27.On the specific question whether the consent obtained on the
basis of promise to marry which was not acted upon, could be
regarded as consent for the purpose of Section 375 IPC, we have

the decision of Division Bench of Calcutta High Court in Jayanti
Rani Panda vs. State of West Bengal [1984 Crl.L.J. 1535]. The
relevant passage in this case has been cited in several other
decisions. This is one of the cases referred to by this Court in Uday

(supra) approvingly. Without going into the details of that case,
the crux of the case can be discerned from the following
summary given at para 7:

“Here the allegation of the complainant is that the accused used
to visit her house and proposed to marry her. She consented to
have sexual intercourse with the accused on a belief that the
accused would really marry her. But one thing that strikes us is……
why should she keep it a secret from her parents if really she had
belief in that promise. Assuming that she had believed the
accused when he held out a promise, if he did at all, there is no
evidence that at that time the accused had no intention of
keeping that promise. It may be that subsequently when the girl
conceived the accused might have felt otherwise. But even then

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the case in the petition of complainant is that the accused did
not till then back out. Therefore it cannot be said that till then the
accused had no intention of marrying the complainant even if he
had held out any promise at all as alleged.”

The discussion that follows the above passage is important and is

.

extracted hereunder:

“The failure to keep the promise at a future uncertain date due to
reasons not very clear on the evidence does not always amount
to a misconception of fact at the inception of the act itself. In

order to come within the meaning of misconception of fact, the
fact must have an immediate relevance. The matter would have
been different if the consent was obtained by creating a belief
that they were already married. In such a case the consent could
be said to result from a misconception of fact. But here the fact
alleged is a promise to marry we do not know when. If a full
grown girl consents to the act of sexual intercourse on a promise

of marriage and continues to indulge in such activity until she
becomes pregnant it is an act of promiscuity on her part and not
an act induced by misconception of fact. S. 90 IPC cannot be
called in aid in such a case to pardon the act of the girl and
fasten criminal liability on the other, unless the Court can be

assured that from the very inception the accused never really
intended to marry her.” (emphasis supplied)

The learned Judges referred to the decision of Chancery Court in
Edgomgtpm vs. Fotz,airoce (1885) 29 Ch.D 459 and observed
thus:

“This decision lays down that a misstatement of the intention of

the defendant in doing a particular act may be a misstatement
of fact, and if the plaintiff was misled by it, an action of deceit
may be founded on it. The particular observation at p. 483 runs to
the following effect: “There must be a misstatement of an existing

fact.” Therefore, in order to amount to a misstatement of fact the
existing state of things and a misstatement as to that becomes
relevant. In the absence of such evidence Sec. 90 cannot be

called in aid in support of the contention that the consent of the
complainant was obtained on a misconception of fact.”

After referring to the case law on the subject, it was observed in

Uday, supra at paragraph 21:

“21. It therefore appears that the consensus of judicial opinion is in
favour of the view that the consent given by the prosecutrix to
sexual intercourse with a person with whom she is deeply in love
on a promise that he would marry her on a later date, cannot be
said to be given under a misconception of fact. A false promise is
not a fact within the meaning of the Code. We are inclined to
agree with this view, but we must add that there is no strait jacket
formula for determining whether consent given by the prosecutrix
to sexual intercourse is voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the tests laid down
by the Courts provide at best guidance to the judicial mind while
considering a question of consent, but the Court must, in each
case, consider the evidence before it and the surrounding

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circumstances, before reaching a conclusion, because each
case has its own peculiar facts which may have a bearing on the
question whether the consent was voluntary, or was given under
a misconception of fact. It must also weigh the evidence keeping
in view the fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence of consent

.

being one of them.”

46. Hon’ble Apex Court in judgment in Deelip Singh @ Dilip Kumar’s

case (supra) while referring to various judgments, arrived at a conclusion that

consent given by the prosecutrix to have sexual intercourse with a person,

with whom, she is deeply in love on a promise that he would marry her on a

later date, cannot be said to be given under mis-conception of fact. No

doubt, Hon’ble Apex Court in aforesaid Judgment has stated that there is no

strait jacket formula for determining whether consent given by the prosecutrix

to sexual intercourse is voluntary or whether it is given under a misconception

of fact, rather court must in each case consider the evidence before it and

the surrounding circumstances, before arriving at a conclusion because each

case has its own peculiar facts which may have a bearing on the question

whether consent was voluntary or was given under a misconception of fact.

In the case at hand, at the cost of repetition, though this Court has no iota of

doubt after having closely/minutely analyzed evidence that prosecution

miserably failed to prove that prosecutrix was subjected to sexual intercourse

by the accused, but bare perusal of statement of prosecutrix, if considered

solely, it itself suggests that she was deeply in love with the accused and

wanted to marry him. There is ample evidence available on record that

prosecutrix voluntarily joined the company of the accused with a view to

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marry him and she remained in the company of the accused for at least 2

days of her own volition and without there being any external pressure.

47. Leaving everything aside, prosecution invariably is under

.

obligation to prove that prosecutrix is a reliable witness and her testimony is

sufficient to hold accused guilty of the alleged crime and the burden to prove

such, invariably lies on the prosecution, but in the case at hand, evidence

brought on record by the prosecution, as has been discussed in detail, is

wholly insufficient and does not inspire confidence at all, rather story put forth

by the prosecution appears to be highly improbable and full of contradictions

and as such, deserves outright rejection.

48.

In the case at hand, though there is no iota of evidence to

connect the accused with the commission of offence alleged to have been

committed by him, but as has been discussed herein above, evidence of

prosecutrix should not be suspected unless her evidence is not reliable, but in

the instant case, sole testimony of prosecutrix, as has been examined herein

above carefully, does not inspire confidence, rather appears to be highly

improbable and compels this Court, to arrive at a conclusion that she of her

own volition, with a view to perform marriage, had joined the company of the

accused. Hence, having carefully perused the material available on record,

this Court finds that two views are possible and as such, one being beneficial

to the accused needs to be taken note of while determining the guilt of the

accused. In this regard, reliance is placed on judgment rendered by the

Hon’ble Apex Court in P. Satyanarayana Murthy v. District Inspector of Police

State of Andhra Pradesh and Anr. (2015) 10 SCC 152, wherein it has been held

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that if in the facts and circumstances, two views are plausible, then the

benefit of doubt must be given to the accused. Relevant para whereof is

being reproduced herein below:-

.

“26.In reiteration of the golden principle which runs through the web
of administration of justice in criminal cases, this Court in Sujit Biswas
vs. State of Assam (2013)12 SCC 406 had held that suspicion, however
grave, cannot take the place of proof and the prosecution cannot
afford to rest its case in the realm of “may be” true but has to

upgrade it in the domain of “must be” true in order to steer clear of
any possible surmise or conjecture. It was held, that the Court must
ensure that miscarriage of justice is avoided and if in the facts and
circumstances, two views are plausible, then the benefit of doubt
must be given to the accused.”

49. In the case titled “Jose alias Pappachan v. Sub-inspector of

Police, Koyilandy and Anr. (2016) 10 SCC 519, the Hon’ble Apex Court, has

held as under:-

“56.It is a trite proposition of law, that suspicion however grave, it
cannot take the place of proof and that the prosecution in order to
succeed on a criminal charge cannot afford to lodge its case in the
realm of “may be true” but has to essentially elevate it to the grade
of “must be true”. In a criminal prosecution, the court has a duty to

ensure that mere conjectures or suspicion do not take the place of
legal proof and in a situation where a reasonable doubt is
entertained in the backdrop of the evidence available, to prevent
miscarriage of justice, benefit of doubt is to be extended to the
accused. Such a doubt essentially has to be reasonable and not
imaginary, fanciful, intangible or non-existent but as entertainable by

an impartial, prudent and analytical mind, judged on the touch stone
of reason and common sense. It is also a primary postulation in
criminal jurisprudence that if two views are possible on the evidence

available, one pointing to the guilt of the accused and the other to
his innocence, the one favourable to the accused ought to be
adopted.”

50. Reliance is also placed on judgment rendered by the Hon’ble

Supreme Court in case titled T. Subramanian vs. State of Tamil Nadu, (2006)1

SCC 401, wherein it has been held that where two views are reasonably

possible from the very same evidence, prosecution cannot be said to have

proved its case beyond reasonable doubt, relevant para of the judgment is

reproduced herein below:

03/11/2018 22:56:23 :::HCHP

– 57 –

10. The evidence throws out a clear alternative that the accused
was falsely implicated at the instance of PWs.1, 2 and 6. If two
views were possible from the very same evidence, it cannot be
said that the prosecution had proved beyond reasonable doubt
that the appellant had received the sum of Rs. 200/- as illegal
gratification. We are, therefore, of the considered view that the

.

trial court was right in holding that the charge against the

appellant was not proved and the High Court was not justified in
interfering with the same.

11. We, therefore, allow this appeal, set aside the order of the

High Court and restore the order of the trial court, acquitting the
appellant of the charge.

51. In this regard, reliance is also placed on judgment rendered by

the Hon’ble Apex Court in case titled Bhagwan Singh and Ors v. State of MP

(2002) 4 SCC 85, wherein it has been held as under:-

“We do not agree with the submissions of the learned counsel for
the appellants that under Section 378of the Code of Criminal

Procedure the High Court could not disturb the finding of facts of
the trial court even if it found that the view taken by the trial court

was not proper. On the basis of the pronouncements of this Court,
the settled position of law regarding the powers of the High Court
in an appeal against an order of acquittal is that the Court has full
powers to review the evidence upon which an order of acquittal
is based and generally it will not interfere with the order of
acquittal because by passing an order of acquittal the

presumption of innocence in favour of the accused is reinforced.
The golden thread which runs through the web of administration
of justice in criminal case is that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view which is

favourable to the accused should be adopted. Such is not a
jurisdiction limitation on the appellate court but a Judge made
guidelines for circumspection. The paramount consideration of

the court is to ensure that miscarriage of justice is avoided. A
miscarriage of justice which may arise from the acquittal of guilty
is no less than from the conviction of an innocent. In a case
where the trial court has taken a view ignoring the admissible

evidence, a duty is cast upon the High Court to reappreciate the
evidence in acquittal appeal for the purposes of ascertaining as
to whether all or any of the accused has committed any offence
or not. Probable view taken by the trial court which may not be
disturbed in the appeal is such a view which is based upon legal
and admissible evidence. In the instant case the trial court
acquitted the respondents by not relying upon the testimony of
three eye- witnesses, namely, Kiran (PW7), Mukesh (PW12) and
Jagdish (PW22) on considerations which apparently appeared to
be extraneous. Such findings of acquittal apparently are based
upon erroneous views or the result of ignoring legal and
admissible evidence with the result that the findings arrived at by
the trial court are held to be erroneous. The High Court has
ascribed valid reasons for believing the statements of those

03/11/2018 22:56:23 :::HCHP

– 58 –

witnesses by pointing out the illegalities committed by the trial
court in discarding their testimonies. The High Court has also rightly
held that the trial court completely ignored the basic principles of
law in criminal jurisprudence which entitles the accused to claim
the benefit of right of self-defence. Without there being any legal
and admissible evidence but swayed by finding some injuries on

.

the person of the accused, the trial court wrongly held that the

respondents were justified in causing the death of three persons in
exercise of their right of self-defence. No fault, therefore, can be
found in the judgment of the High Court on this ground.”

52. Consequently, in view of the detailed discussion made herein

above as well as law relied upon, this Court has no hesitation to conclude that

learned court below has not appreciated the evidence in its right perspective

and as such, findings returned by it deserve to be set-aside. Accordingly,

present appeal is allowed and judgment passed by the Court below is

quashed and set-aside and appellant-accused is acquitted of the offence

punishable under Section 376 IPC. Bail bonds furnished by the appellants are

discharged. Fine amount, if any deposited by the appellant, be refunded to

him. Release warrants be prepared forthwith.

Present appeal stands disposed of, so also pending

applications, if any.

1st November, 2018 (Sandeep Sharma),
manjit Judge

03/11/2018 22:56:23 :::HCHP

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