Himachal Pradesh High Court
Rakesh Kumar vs Of on 11 August, 2016
Author: Ajay Mohan Goel
Bench: Rajiv Sharma, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 1 of 2016 a/w
Cr. Appeal No. 144 of 2016
.
Reserved on: 04.08.2016
Decided on: 11.08.2016
Cr. Appeal No. 1 of 2016
Rakesh Kumar ....Appellant.
Versus
of
State of Himachal Pradesh ... Respondent.
Cr. Appeal No. 144 of 2016
Sh. Ram Parsad rt ....Appellant.
Versus
State of Himachal Pradesh ... Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant(s) : Mr. N.S. Chandel, Advocate, for the
appellant in Cr. Appeal No. 01 of 2016 and
Mr. Inderjit Singh Narwal, Advocate, for the
appellant in Cr. Appeal No. 144 of 2016.
For the respondents: Mr. M.A. Khan, Additional Advocate
General, for the respondent(s).
Ajay Mohan Goel, J.:
Both these appeals are being disposed of together as both appeals arise from the judgment passed by learned Sessions Judge (Forests), Shimla in Session Trial RBT No. 10-S/7 of 2015/15 dated 02.11.2015, vide which learned trial Court has convicted the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 2accused for commission of offence punishable under Sections 376-D and 506 of the Indian Penal Code (in short 'IPC') and sentenced each of them to undergo rigorous imprisonment for twenty years and to .
pay fine of Rs. 25,000/- each for commission of offence punishable under Section 376-D of the IPC and further rigorous imprisonment of two years in the event of default of payment of fine. The accused have also been sentenced to undergo rigorous imprisonment of one of year for commission of offence punishable under Section 506 of the IPC.
2. The case of the prosecution was that on the basis of rt statement of prosecutrix recorded under Section 154 of the Code of Criminal Procedure (in short 'Cr.P.C') Exhibit PW5/A dated 16.05.2014, FIR Exhibit PW19/A was registered against accused under Sections 376-D and 506 of the IPC.
3. As per the prosecutrix, at the relevant time she had appeared in 10+2 Commerce examination from Loreto Convent Tara Hall School, Shimla and since the year 2013 Munish was known to her. On 15.05.2015 she went to Ava Lodge to purchase BBA form and Munish had met her at City Point. After the purchase of the BBA form, for the attestation of her photo, both of them came to D.C. Office, Shimla, however, attestation work could not be done, so they decided to meet on 16.05.2014 at 11:00 a.m. near Landmark hotel.
Accordingly, on 16.05.2014, they met near Landmark hotel and proceeded on foot towards 103 tunnel. There they sat on a ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 3 milestone and after some time proceeded towards Ava Lodge. At this stage, accused Rakesh Kumar (referred to in statement made under Section 154 of the Code of Criminal Procedure as 'one bald person') .
came and informed them that police had conducted a raid and was apprehending couples, as it had recovered drugs from two couples.
Further as per the prosecutrix, on his coercion she and Munish agreed to follow him, who took them towards the forest. In the of meantime, accused Rakesh Kumar received a telephone call and stated that he had saved them from the raid. Accused Ram Parsad (referred to in the statement under Section 154 of the Code of rt Criminal Procedure as 'the other person') came from the opposite direction and both the accused assured her and Munish that they will leave them at Summer Hill Chowk. Ram Parsad asked them (prosecutrix and Munish) to get separated from each other, otherwise they will be apprehended. As per the prosecutrix, though she requested Manish not to leave her but he did not agree and both of them proceeded on separate paths. After covering some distance, accused Rakesh Kumar sat down on the ground and stated that he was tired. He asked her also to sit down but when she refused, he forced her to sit. In the meanwhile, accused Ram Parsad also reached there but Munish was not with him which raised her suspicion. Thereafter both these persons forcibly got hold of her and put her in a gunny bag. Though she cried but her mouth was gagged. Thereafter, as per the prosecutrix, she was raped by both the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 4 accused. They threatened her that in case she tried to cry they will throw her in a ditch and if she disclosed this incident to anybody, she will be defamed in the society. They returned her mobile phone .
which was switched off by them. They dropped her near a temple where a white coloured building was situated and ran away towards the forest. Prosecutrix disclosed the entire incident to a lady who informed her Bhabhi. Her family members brought her back of alongwith other persons and from her house, she was taken to Police Station West, Shimla. There she disclosed that both the accused had committed sexual intercourse with her.
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4. On the basis of statement of the prosecutrix, FIR Ext.
PW19/A was registered against the accused. The investigating Officer referred the prosecutrix for medical examination where she was duly examined by a Doctor. Sketch of the accused Rakesh Exhibit PW17/A was got prepared from Dinesh Attri, Artist. On 08.06.2014, accused Rakesh Kumar was arrested by the police. After the completion of the investigation, challan was presented in the Court and as a prima-facie case was found against the accused, they were charged for offences punishable under Sections 376-D and 506 of the IPC to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution in all examined 23 witnesses.
6. Hemant Thakur entered the witness box as PW1 and deposed that he remained associated in the investigation with the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 5 police on 17.05.2014. He stated that on 16.04.2014 when he was at his house at Summer Hill with his mother and sister-in-law, he heard one girl crying "bachao-bachao" at about 3:00 p.m. This girl .
disclosed her name. They offered her drinking water and she told them that when she was present near 103 tunnel alongwith her friend Munish, two persons came there and separated them and after separating them the said two persons committed rape with her. He of further deposed that she contacted her 'Bhabhi' from her own mobile phone and thereafter he (PW1) had told the location of his house to her 'Bhabhi'. Thereafter family members of the prosecutrix came rt there and took her.
7. Dr. Rajnish, M.O. DDU, Shimla entered the witness box as PW2 and stated that he medically examined Rakesh Kumar on 08.06.2014 at 11:30 a.m. after being arrested on the suspicion of rape and there was nothing to suggest that he was not capable of doing sexual intercourse.
8. Dr. Shalini, M.O. D.D.U., Shimla entered the witness box as PW3 and stated that on 21.06.2014 at about 5:15 p.m. she examined Ram Prasad who was brought by the police for routine examination and there was nothing to suggest that he was not capable to perform sexual intercourse.
9. Shri Charan Preet Singh entered the witness box as PW4 and stated that he is a businessman. On 16.05.2014 his sister (prosecutrix) came to Aver Lodge for purchasing the form of BBA and ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 6 on that day he could not contract his sister on mobile phone.
Thereafter his wife Avneet Kaur telephonically called him and informed prosecutrix is at Cheriton Estate, Summer Hill and she .
further asked him to bring her home from there. He further deposed that thereafter he alongwith Vikas Sood went to Cheriton Estate, Summer Hill where his sister met him in the house of Hemant Thakur. He brought her home. At their house, she (prosecutrix) told of them that two unknown persons had raped her. Thereafter, they took her to Police Station West, Shimla from where she was brought to D.D.U. hospital for medical examination. In his cross-examination, rt he inter-alia stated that the age of the prosecution at the relevant time was 17 years. He categorically denied the fact that his sister was mentally disturbed and she used to have medicines.
10. Statement of prosecutrix has been recorded as PW5 in which she has reiterated her version as was recorded in her statement under Section 154 Cr.P.C as well as in subsequent statement made by her under Section 161 Cr.P.C before the police and the statement recorded under Sectiton 164 of Cr.P.C before the Judicial Magistrate 1St Class. She reiterated the fact that on the fateful day when she was with Munish, accused Rakesh Kumar (bald man) got Munish and her separated and thereafter the other accused joined the first accused and she was thereafter sexually assaulted by the said two accused. On 18.05.2014, she also got identified the spot of occurrence. She also stated that on 12.06.2014 she was taken to ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 7 Sub Jail Kaithu for test identification parade of accused. She reached Sub Jail Kaithu at 2:30 p.m. She was taken inside the Sub Jail Kaithu, where there was an open lawn. Six persons were standing in .
the said open lawn having same height and physique. She further stated that the faces of the said six persons were uncovered and she identified Rakesh Kumar, who was standing at Sr. No. 3 from left to right, to be same person who had committed sexual intercourse with of her. Thereafter, she was taken to a separate room and again called after about 10 minutes. She again saw six persons standing in a row wearing different dresses. She again identified accused Rakesh who rt was standing at 5th number in the row from left to right. Thereafter she was again taken inside a separate room and called after about 10 minutes. The positions and dresses of said six persons were changed and she again identified accused Rakesh who was standing in the row at first position from left to right. She deposed that her statement regarding identification of accused Rakesh was also recorded. She also deposed that she was again called for test identification parade of another accused in Sub Jail Kaithu but the test identification parade could not be conducted on account of his refusal. In her cross-examination conducted on behalf of accused Rakesh Kumar, she denied that in the beginning during the Test Identification Parade, she did not identify accused Rakesh Kumar.
She also categorically denied that before identification parade, official who was present there had shown to her photographs and names of ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 8 the accused, on the basis of suspicion. She denied that she was making the statement in the Court at the instance of her family members. She categorically denied that accused Rakesh Kumar had .
not committed sexual intercourse with her and that some other person had committed sexual intercourse.
11. Munish entered the witness box as PW6 and stated that he knew prosecutrix since February, 2014 and on 15.05.2014 of prosecutrix asked him about admission form of BBA and to accompany her on the next day. On 16.05.2014, prosecutrix met him near Landmark Hotel and thereafter they moved towards 103 tunnel rt and crossed the tunnel. After crossing the tunnel, they sat on a parapet and started talking. At that time, one bald person having french-cut beard came there and told them that one boy and a girl were apprehended by the police and police is raiding the area. He told them to go away from there and that he will tell them the way.
He identified the accused to be same person who was present at the spot. This witness thereafter stated that Rakesh took them towards Jungle side and the other person who was having grey beard and was not of fair complexion joined Rakesh PW6 also identified accused Ram Prasad as the second accused person. He further deposed that thereafter Rakesh asked them to separate from each other and Ram Prasad took him to some distance and the prosecutrix was taken away by the accused Rakesh. He also deposed that Ram Prasad came back after sometime and he reached Summer Hill on foot and ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 9 thereafter he made a call to the prosecutrix on her mobile phone but her mobile was out of reach. He further deposed that at about 3:00 p.m. he received phone call of prosecutrix and she told him that in .
his absence both accused had committed forcible sexual intercourse with her and she was present in the house of one lady. He also stated that on 12.06.2014, Ms. Shalini, Police Officer asked him to visit Sub Jail Kaithu and he reached there at 2:00 p.m. He deposed of that six persons having same height and body structure were standing inside the jail with covered faces. Their faces were uncovered and he identified the accused Rakesh to be the same rt person who met them on the date of incident. He again identified the accused Rakesh Kumar, when asked to do so second time. Thereafter he was again called after sometime and he found again six persons in different dress and he again identified Rakesh. He also stated that during test identification parade position of all the persons was changed. He also stated that on the next day, he was again call in the Sub Jail Kaithu but test identified parade was not conducted as accused Ram Prasad refused for the same.
12. Avneet Kaur entered the witness box as PW7 and stated that the prosecutrix is her sister-in-law. On the fateful day, prosecutrix left the house to fill up admission form of BBA classes.
She left home at about 10:00/11:00 a.m. She also deposed that she made telephone call to prosecutrix which was received by the prosecutrix and she told her that it will take time to obtain the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 10 admission form. She also deposed that during the call, first time she heard cry of prosecutrix and then prosecutrix told her that accused persons were following her. She also heard voice of a person who was .
saying that do you want to tell to your Bhabhi. She further stated that after that she tried to contact prosecutrix but her mobile phone was out of range. Thereafter, she informed her husband on mobile phone who asked her to seek help from the neighbourers. After about of one hour, she received a call from the prosecutrix and she told her that she was present in the jungle but had no knowledge about the location. She further deposed that after sometime she received rt telephone call from Chariton Estate, Summer Hill and on mobile phone, it was informed that prosecutrix is in their house. She further deposed that prosecutrix was brought back by her husband and other neighbour and prosecutrix told her that two unknown persons had committed forcible sexual intercourse with her and thereafter prosecutrix was taken to Police Station.
13. Shri Gian Chand Negi entered the witness box as PW 8 and stated that he was posted as SDM (Urban) Shimla from January, 2013 to May, 2013 and in the present case, D.M. Shimla had ordered him to conduct test identification parade which was duly conducted by him. He further deposed that he got conducted the test identification parade of accused Rakesh after joining in the parade persons of same height, age and resemblance. He also deposed that prosecutrix identified accused Rakesh. He also stated that on ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 11 27.06.2014, he was deputed to conduct test identification parade of accused Ram Prasad but he repeatedly objected identification parade on the ground that his identity has already been exposed prior to the .
test identification parade.
14. Dr. Asha Negi entered the witness box as PW9 and stated that she had conducted the medical examination of the prosecutrix, who was brought by the police with the alleged history of of sexual assault by two persons in the jungle near 103 tunnel, on the same day at about 2:45 p.m. She stated in her examination as under: rt "In my opinion there was presence of human sperms in the vaginal swab, pubic hair, underwear, vaginal slides and trouser of Gurmit Kaur, which was suggestive that sexual intercourse was happened."
15. She also deposed that there were bruises on the inter lips of bilateral labia minora. Hymen was torn posterior fresh injury with raw surface margin red in colour. Blood was present, not bleeding at the time of examination. Tenderness was present.
16. Vikas Sood entered the witness box as PW10 and stated that on 18.05.2014, he and Ankush Sood remained associated in the police investigation and in their presence, prosecutrix had given the identification of the spot in Summer Hill forest and police prepared site plan, clicked photographs, conducted the video-graphy of the spot and took into possession plastic bag which was identified by the prosecutrix.
::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 1217. Ganesha Nand Sharma entered the witness box as PW11 and deposed that he was posted as Senior Assistant in the Directorate of Higher Education since March, 2012. He produced on .
record the attendance certificate Exhibit PW11/B pertaining to accused Rakesh Kumar. He also deposed that accused Rakesh Kumar was deputed to SBI Kalibari to receive payment of draft.
18. Lady Head Constable Ramesh Lal No. 115 entered the of witness box as PW12 and stated that she was posted as I.O. in Police Station Boileauganj in the year 2014 and on 09.06.2014 she was officiating as MHC, PS Boileauganj. She further stated that the case rt property was sent through Const. Kapil No. 1457 vide RC No. 83/14 to SFL, Junga for chemical examination who after depositing the same in FSL, Junga handed over the receipt to her on the same day.
19. Constable Nitin Kumar No. 1394 entered the witness box as PW13 and deposed about the search carried out of accused Rakesh Kumar by SHO Vikram Chauhan.
20. Constable Kapil Dev No. 762 entered the witness box as PW 14 and deposed that on 09.06.2014 LHC Ramesh Lata had handed over one parcel and one envelope which were sealed with seal impression 'CMO', which were deposited by him at FSL, Junga on the same day vide RC No. 83/14 and after depositing the same he handed over the receipt to MHC.
21. Constable Anil Kumar entered the witness box as PW15 and stated that on 22.05.2014, MHC Nikka Ram handed over case ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 13 property of the case to him for depositing the same at FSL, Junga which was duly done by him and the receipt thereof was handed over to MHC on return.
.
22. L.C. Sneh Lata No. 1005 entered the witness box as PW16 and stated that on 16.05.2014, she took the prosecutrix alongwith documents to DDU hospital for medical examination and after medical examination, she procured MLC of the prosecutrix of (Exhibit PW9/A) and the Medical Officer also handed over parcels having seal impression 'CMOS', which she deposited with the MHC, P.S. West, Shimla.
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23. Dinesh Attri entered the witness box as PW17 and stated that he is an Artist and a professional painter and on 17.05.2014, he remained associated in the investigation with the police. He also deposed that he had prepared the sketch of the accused as per the description given by the prosecutrix who was present alongwith police and sketch Exhibit PW17/A was the same which was handed over to the police. He also stated that he can identify the accused to be the same person whose sketch was prepared by him.
24. Dr. G.C. Thakur, Assistant Director, State Forensic Science Laboratory, Junga entered the witness box as PW18 and stated that report Ext. PW18/A was in his hand and as per his final opinion, the result was as under:-
(1) Human blood and human semen was detected on exhibit-1a (vaginal swabs, Gurneet Kaur), exhibit-::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 14
1c (sample public hair, Gurneet Kaur) and Exhibit-2a (underwear, Gurneet Kaur).
(2) Human semen was detected on exhibit-1b (vaginal slides, Surneet Kaur). Blood was detected .
on the exhibit.
(3) Blood and semen was not detected on exhibit- 1d (nail pieces, Gurmeet Kaur), exhibit-2c (shirt/top, Gurneet Kaur), exhibit-2d bag/boru recovered from the spot).
(4) Human blood was detected in exhibit-1e (blood of sample, Gurmeet Kaur).
(5) Human semen was detected on exhibit-2b (pants, Gurneet Kaur). Blood was detected on the rt exhibit which was insufficient for serological examination."
25. S.I. Madan Lal entered the witness box as PW 19 and stated that on 16.05.2014, statement Exhibit PW5/A of prosecutrix written by Ms. Shalini Agnihotri, IPS (P) was given to him for registration of FIR, on the basis of which, FIR Exhibit PW19/A was registered.
26. Inspector Vikram Chauhan entered the witness box as PW 20 and stated that statements of police officials were recorded by him on 26.07.2014 and 11.08.2015. Supplementary statements of prosecutrix, Dinesh Attri, Charan Prit Singh were also recorded by him.
27. Dr. Vivek Sahajpal entered the witness box as PW21 and stated that he had carried out DNA profiling in this case and ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 15 after examination he issued reports Exhibit PW20/A and Exhibit PW20/B. This witness has stated that Ram Prasad is the source of male DNA found on Exhibits 1-A to 1-C and Exhibit 5.
.
28. HC Nikka Ram entered the witness box as PW22. He produced on record Malkahana registers in which entries were recorded regarding sending of samples to FSL, Junga, copies of which are Exhibit PW22/A ad Exhibit PW22/B. of
29. Ms. Shalini Agnihotri, entered the witness box as PW23 who at the relevant time she was posted as ASP (P) and who was the Investigating Officer (I.O.) in the present case. In her statement she rt put forth the case of the prosecution and also testified in the Court the mode and manner in which the investigation was carried out by the police. She further deposed that she moved application Ex.
PW23/A to the Medical Officer and the victim was medically examined by the doctor and her MLC is Ex. PW9/A. She also deposed that on 18.05.2014, the prosecutrix was taken to the spot and she identified the same and site plan Ex. PW23/B was prepared by this witness on the identification of the victim. She also stated that on the spot a gunny bag was also found which soiled with mud, on which ACC was written. She further stated that sketch of accused Rakesh Kumar was got prepared from Dinesh Attri on the description given by the victim and on the basis of the same, informers were set up to locate the accused. She further deposed that on 08.06.2014, accused Rakesh Kumar was apprehended by the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 16 police team. She also disclosed that Test Identification Parade of the accused was conducted on 12.06.2014 on the direction of the Court.
She further deposed that during his interrogation, accused Rakesh .
Kumar disclosed the name of the other accused as Ram Parsad alias Ramu. This accused was called by using mobile phone of accused Rakesh Kumar and CDR numbers were analyzed, on the basis of which, accused Ram Parsad was apprehended and arrested. In her of cross-examination, this witness has denied the suggestion that accused Rakesh Kumar was arrested on the basis of the sketch only.
She stated that sketch was a part of his arrest.
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30. One Varinder Kumar, Superindentent Grade-II, was examined by the defence as DW1 who stated that on 16.05.2014, accused Rakesh was deputed by the office to collect cash from SBI, Kalibari branch in the morning and accused after collecting cash from the bank returned to the office at about 1:20 p.m. and handed over the cash to him in the office. In his cross examination, he admitted that there is no biometric machine in their office. He also admitted that in the evening accused Rakesh had not marked attendance in the office and was found absent.
31. This is the entire evidence led by the prosecution as well as the defence to prove their respective cases.
32. On the basis of material produced on record by the prosecution, learned trial Court vide its judgment dated 02.11.2015 held that prosecution has proved its case against the accused for the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 17 commission of offence punishable under Section 376-D and 506 of IPC and accordingly, it convicted the accused.
33. Feeling aggrieved by the said judgment of conviction .
passed by the learned trial Court, the accused have preferred the abovementioned appeals.
34. Learned counsel for the appellants have challenged the judgment passed by the learned trial Court on the ground that the of learned trial Court has erred in convicting the appellants on the sole testimony of the prosecutrix which was neither reliable nor trustworthy. rt
35. As per the learned counsel representing accused Rakesh, judgment passed by learned trial Court was not sustainable because while convicting said accused, learned trial Court has failed to appreciate that he was arrested by the investigating agency on 08.06.2014 without there being any evidence. As per the said appellant, he was arrested on the basis of a sketch prepared by PW17 Dinesh Attri but it has nowhere come in the evidence that the said sketch was used by the investigating agency to search him. According to him, this casts a serious doubt on the story of the prosecution, which aspect of the matter has been ignored by the learned trial Court. It is further argued on behalf of the said appellant that test identification parade conducted was just a farce and further had accused Rakesh committed sexual intercourse with the prosecutrix, then the semen of appellant Rakesh Kumar would have been on the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 18 vaginal swab and slide of the prosecutrix, which aspect of the matter has been completely ignored by the learned trial Court. It was also argued that material circumstances appearing from the evidence have .
not been put to the appellant in examination under Section 313 of Cr.P.C.
36. It was argued on behalf of appellant Ram Prasad that the learned trial Court has erred in not appreciating the testimony of of PW16 and PW21 in the right perspective from which it stood proved that Ram Prasad was not guilty of the offences alleged against him.
Accordingly, on these bases, it was contended on behalf of the rt appellants that the judgment passed by the learned trial court was perverse and the findings of conviction returned against them by learned trial Court are not borne out of the records of the case and accordingly, said judgment was liable to be quashed and set aside.
37. No other point was urged on behalf of the appellants.
38. Learned Additional Advocate General, on the other hand, strenuously argued that the guilt of the accused in fact stood proved from the evidence and material which had been placed on record by the prosecution. He submitted that there was neither any perversity nor any infirmity with the judgment passed by learned trial Court. He further submitted that the prosecution on the basis of material placed on record had nailed the guilt of the accused and it stood proved beyond reasonable doubt that the accused had gang raped the prosecutrix. Accordingly, learned Additional Advocate ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 19 General submitted that there was no merit in the appeals and the same be dismissed.
39. We have heard the learned counsel for the parties and .
also gone through the records of the case as well as the judgment passed by the learned trial Court.
40. The prosecutrix has entered the witness box as PW5.
Her statement recorded under Section 154 of Cr.P.C is Exhibit of PW5/A. Her statement recorded under Section 164 of Cr.P.C is on record as PW5/D. A perusal of the statements made by the prosecutrix under Sections 154 Cr.P.C and 164 Cr.P.C and as PW5 in rt the Court, clearly proves on record that there is consistency in the deposition/ testimony of this witness. We are not reproducing what the prosecutrix has testified in her statements. Suffice it to say that prosecutrix in clear and categorical terms stated as to how she was sexually molested by the accused. The prosecutrix has been subjected to extensive cross-examination by the defence but the defence could not impinge the credibility of the said witness nor could anything be elucidated from the cross-examination of the said witness to establish that she was deposing falsely or there were inconsistencies or exaggerations in her testimony. Not only this, the version of the prosecutrix has also been duly proved by the testimony of PW1 Hemant Thakur, who admittedly was not known to the prosecutrix and was an independent witness. This witness has deposed the condition in which the prosecution reached his house. Besides this, ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 20 version of prosecutrix is duly corroborated by PW6 Munish as well as PW4 Charan Prit Singh, her brother and PW7 Avneet Kaur, her sister-
in-law. Prosecutrix was medically examined by PW9 Dr. Asha Negi .
and MLC of the prosecutrix Ext. PW9/A is on record which clearly demonstrates that the prosecutrix was subjected to sexual intercourse. This MLC has been duly proved by Dr. Asha Negi (PW9).
41. We have carefully gone through the statements of of prosecutrix recorded under Section 154 of Cr.P.C, 164 of Cr.P.C as well as her deposition made in the Court and in our considered view, same are corroborative, cogent, reliable and trustworthy. Learned rt counsel for the appellants could not point out as to what were the discrepancies in the statement of the prosecutrix vis-a-vis the material produced on record by the prosecution.
42. In a recent judgment the reported in Madhu alias Madhuranatha and another Vs. State of Karnataka (2014) 12 Supreme Court Cases 419, the Hon'ble Supreme Court has held:
"16. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181, this Court considered the issue of discrepancies in the depositions. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 21 should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize .
the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so of as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which rt do not go to the heart of the matter, and shake the basic version of the prosecution witness.
A similar view has been re-iterated in State of U.P. v. M.K. Anthony, AIR 1985 SC 48;
State rep. byInspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191."
43. The contention of the appellants that the conviction of the appellants is not sustainable on the sole testimony of the prosecutrix also merits rejection. It is not a case where the testimony of the prosecutrix is shaky or unreliable or does not inspires confidence. The appellants have not been able to impinge the credibility of the prosecutrix.
44. The case put forth by the appellants that they have been falsely implicated in the matter is also misplaced. In our view, a ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 22 bald assertion to the effect that the appellants have been falsely implicated in the case is not sufficient as this argument could not be substantiated by the learned counsel for the appellants. It is not their .
case that either there was any enmity or animosity between the appellants and the prosecutrix or her family or between the appellants and PW6 Munish or his family. No cogent and valid explanation or reason has been given by them from where this of inference could be drawn by this Court that they have been falsely implicated by the prosecution. On the other hand, both the prosecutrix as well as PW6 Munish have categorically identified the rt accused and the prosecutrix has clearly stated that it was the accused who gang-raped her. Prosecutrix is a young girl of 17 years who, by no stretch of imagination, would have had leveled the allegations of this nature upon the accused which simultaneously were to put a stigma on her too.
45. It is settled law that testimony of a prosecutrix is almost on a par with an injured witness and can be acted upon without corroboration as has been held in various decisions of the Hon'ble Supreme Court. Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 SC 217 has held:
"9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 23 spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in .
support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the of Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social rt mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as:
(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 24
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and .
chased by males.
(3) She may want to wreak vengence on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
of (4) She may have been induced to do so in consideration of economic rewards, by a person interested rt in placing the accused in a compromising or embarassing position, on account of personal or political vendatta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 25 sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a .
woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by of the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face rt the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 26 of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear .
of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and of the risk of being disbelieved, acts as a deterrent."
46. Further in State of Maharastra Vs. Chandraprakash rt Kewalchand Jain (1990) 1 SCC 550 , Hon'ble Supreme Court has held:
"15. It is necessary at tile outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex-offences.
Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said stat- ute 'Evidence' means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 27 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all per- sons are .
competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even of in the case of an accomplice Section 133provides that he shall be a competent witness against an accused person; and a convic- tion is not illegal rt merely because it proceeds upon the uncorroborated testimony of an accomplice.
However, illus- tration (b) to Section. 114, which lays down a rule of practice, says that the Court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).
16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 28 unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an .
injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is of dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels rt satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circum- stances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circum- stances appearing on the record of the case disclose that the prosecutrix does not have a ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 29 strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily .
the evidence of a prosecutrix who does not lack understanding must be accept- ed. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is of reflected in the following passage: "It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, rt truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse.
Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 30 except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and .
thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours of is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the rt same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indigni-
ties in different forms, from lewd remarks to eve- teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally commit- ted on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 3147. Hon'ble Supreme Court has further held in State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384 as under:
.
"8. The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master rt car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car5 she was threatened by the accused to keep quiet and not to raise any alarm otherwise she would be killed.
Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the Bus Adda is traverisity of justice. The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alram. Again, if the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 32 investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the .
testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account.
of In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly rt explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecution has explained that as soon as Trilok Singh PW6, father of the prosecutrix came to know from his wife, PW7 about the incident he went to the village sarpanch and complained to him. The sarpanch of the village also got in touch with the sarpanch of village Pakhowal, where in the tube well kotha of Ranjit Singh rape was committed, and an effort was made by the ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 33 panchayats of the two villages to sit together and settle the matter. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her .
family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have o n the reputation and future prospects of the marriage etc. of their of daughter. Trilok Singh PW6 truthfully admitted that he entered into consultation with his wife as to whether to lodge a report or not and the trial rt court appears to have misunderstood the reasons and justification for the consultation between Trilok Singh and his wife when it found that the said circumstance had rendered the version of the prosecutrix doubtful. Her statement about the manner in which she was abducted and again left near the school in the early hours of next morning has a ring of truth. It appears that the trial court searched for contradictions and variations in the statement of the prosecutrix microscopically, so as to disbelieve her version. The observations of the trial court that the story of the prosecutrix that she was left near the examination center next morning at about 6 a.m. was "not believable" as `the accused would be the last persons to extend sympathy to the prosecutrix" are not at all intelligible. The accused were not showing "any sympathy" to the prosecutrix while driving her at 6.00 a.m. next ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 34 morning to the place from where she had been addicted but on the other hand were removing her from the kotha of Ranjit Singh and leaving her near the examination center so as to avoid being .
detected. The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the center and waited till she went home and narrated the occurrence to her mother is of unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court over-looked that a girl, in a tradition bound rt non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination center under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 35 else at the examination center prior thereto is an accord with the natural human conduct of a female. The courts must, while evaluating evidence, remain alive to the fact that in a case of .
rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on of the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such rt which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look.
The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act 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.
Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 36 look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no .
requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury of in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real rt culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape.
Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-
looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 37 tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the .
judicial mind as probable. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990 (1) SCC
550) Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the of position in the following words:
"A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of rt the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 38
(b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecurtix it may look for evidence which .
may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is of an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not rt trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
48. The Hon'ble Supreme Court in Mukesh Vs. State of Chhattisgarh (2014) 10 Supreme Court Cases 327 has held:
"15. Further, as has been repeatedly held by this Court in a catena of cases, the sole testimony of the witness is sufficient to establish the commission of rape even in the absence of corroborative evidence. Reliance has been placed on the decision of this Court in the case of Mohd. Iqbal v. State of Jharkhand[1], which states as under :-::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 39
"17. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the .
statements of other witnesses.
18. In Narender Kumar v. State (NCT of Delhi) this Court has observed that even if a woman is of easy virtues or used to sexual intercourse, it cannot be a licence for any person of to commit rape and it further held: (SCC p. 180, paras 30-31) "30. ... conviction can be based on sole testimony rt of the prosecutrix provided it lends assurance of her testimony. However, in case the Court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's 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 virtues/unchaste woman that itself cannot be a determinative factor and the Court is required to adjudicate whether the accused committed rape on the prosecutrix on the occasion complained of."
19. In the statements of the appellant-
accused under Section 313 CrPC, only a bald ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 40 statement had been made by both the appellant- accused that they were innocent. No explanation had been furnished by either of them as to why the prosecutrix had deposed against them and .
involved them in such a heinous crime."
49. The Hon'ble Supreme Court has again held in Aslam Vs. State of Uttar Pradesh (2014) 13 Supreme Court Cases 350:
of "8. With the able assistance of both the learned counsel, we have carefully perused and analyzed rt the evidence of the Prosecution Witnesses and, in particular, the evidence of PW-
1. In our opinion, the evidence of the said witnesses is not only reliable but also trustworthy.
9. This Court has held that if, upon consideration of the prosecution case in its entirety, the testimony of the prosecutrix inspires confidence in the mind of the Court, the necessity of corroboration of her evidence may be excluded.
This Court in Rajinder v. State of Himachal Pradesh, (2009) 16 SCC 69 has observed as under:
"18. This Court, in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 made the following weighty observations in respect of evidence of a victim of sexual assault: (SCC pp. 395-96, para 8) "8. ... The courts must, while evaluating evidence, remain alive to the fact that ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 41 in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In .
cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out of an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression rt are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act 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.
Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 42 requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured .
witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-
inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual of offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of rt judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 43 crime strikes the judicial mind as probable."
(emphasis in original)
19. In the context of Indian culture, a woman-- victim of sexual aggression--would rather suffer .
silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind of that no self- respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for rt corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
10. The Trial Court, keeping in view the evidence of PW-1, has come to the conclusion that the accused persons have committed the offence falling within the parameters of Section 376 read with Section 34 of the IPC. This view of the Trial Court is affirmed by the High Court once again after re-appreciating the entire evidence on record. In our considered view, neither the Trial Court nor the High Court has committed any ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 44 error, whatsoever, which would call for our interference in these appeals. Accordingly, the appeals stand dismissed."
.
50. It has also been held by the Hon'ble Supreme Court in Mohammad Iqbal and another Vs. State of Jharkhand, (2013) 14 Supreme Court Cases 481 that there is no prohibition in law to convict the accused of rape on the basis of sole testimony of prosecutrix and law does not require that her statement be of corroborated by the statements of other witnesses. It was further held :
"19.
rt In the statements of the
accused/appellants under Section 313 Cr.P.C.,
only a bold statement had been made by both the accused/appellants that they were innocent. No explanation had been furnished by either of them as to why the prosecutrix had deposed against them and involved them in such a heinous crime.
20. Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. In case of rape besides the psychological trauma, there is also social stigma to the victim. Majority of rapes are not sudden occurrences but are generally well planned as in this case. Social stigma has a devastating effect on rape victim. It is violation of her right of privacy. Such victims need physical, mental, psychological and social rehabilitation.::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 45
Physically she must feel safe in the society, mentally she needs help to restore her lost self esteem, psychologically she needs help to overcome her depression and socially, she needs .
to be accepted back in the social fold. Rape is blatant violation of women's bodily integrity."
51. Coming to the facts of the present case, here also, in the statements of appellants-accused recorded under Section 313 of of Cr. P.C., both of them have made bald statements that they are innocent and no plausible explanation has been furnished by either of them that as to why prosecutrix have deposed against them and rt involved them in such a heinous crime. As we have already held above that there is nothing on record to suggest that the accused have been falsely implicated in the present case. Therefore, the arguments of the learned counsel for the accused-appellants that the accused-appellants have been falsely implicated by the prosecutrix and the sole testimony of prosecutrix was not reliable deserve rejection.
52. We are not for a minute suggesting that onus to prove themselves innocent was on the accused. However, the testimony of the prosecutrix as well as other material produced on record by the prosecution, proves the guilt of the accused beyond reasonable doubt and we are not suggesting that what has been stated by the accused in the course of their examination under Section 313 Cr. P.C. was indicative of their guilt. Their guilt has been proved by the material ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 46 which has been placed on record by the prosecution both ocular as well as documentary.
53. Coming to the next contention of the learned counsel for .
the appellant Rakesh Kumar that accused Rakesh Kumar has not been properly identified and the identification parade was just a farce also does not convince us. A perusal of the statements of PW5 and PW6 clearly demonstrates the mode and manner in which the of identification of the said accused took place. Prosecutrix (PW5) has stated that on 12.06.2014, she was taken to Sub Jai Kaithu for test identification of the accused and after some time she was taken inside rt the Sub Jai, Kaithu where there as an open lawn. Six persons were standing in the said open lawn of same height and physique. Two persons sitting there had asked her whether she can identify the accused? She replied that she can. Her statement to this effect was recorded which was duly signed by her and thereafter she identified accused Rakesh Kumar as the same person, who was standing at Sr. No. 3 from left to right. She categorically stated in the Court that Rakesh Kumar was the same person who had committed forcible sexual intercourse with her. She thereafter deposed that she was taken to a separate room and again called after about 10 minutes.
She again saw six persons standing in the row wearing different dresses. She again identified accused Rakesh who was standing at 5th number in the row from left to right. Thereafter she was again taken inside a separate room and called after about 10 minutes. The ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 47 positions and dresses of said six persons were changed and she again identified accused Rakesh who was standing in the row at first position from left to right. She deposed that her statement regarding .
identification of accused Rakesh was duly recorded. PW6 has also stated that on 12.06.2014, he reached Sub Jail Kaithu where six persons of same height and body structure were standing inside the jail having covered faces. Their faces were uncovered and he identified of the accused Rakesh to be the same person who met them on the date of incident. Thereafter he was again called on two occasions to identify the accused whom he rightly identified on both the occasions.
rt Both these witnesses have been subjected to extensive cross examination on behalf of the accused Rakesh Kumar. However, a perusal of the cross-examination of these witnesses demonstrates that the factum of the accused being identified by the prosecutrix and PW6 could not be demolished in their cross-examination. Besides this, Shri Dinesh Attri has entered the witness box as PW17 who has categorically stated that he is an Artist and a professional painter and on 17.05.2014, he remained associated in the investigation with the police. He also deposed that he had prepared the sketch of the accused as per the description given by the prosecutrix who was present alongwith police and sketch Exhibit PW17/A was the same which was handed over to the police. He also stated that he can identify the accused to be same person of home the sketch was prepared by him. Shri Gian Chand Negi has entered the witness box ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 48 as PW8 and stated that at the relevant time he was posted as SDM (Urban), Shimla and in the present case, District Magistrate, Shimla has ordered him to conduct test identification parade which was duly .
got conducted by him after moving an application in this regard to the Jail Superintendent. He has further deposed that he got the test identification parade of accused Rakesh conducted after joining persons of same height, physique and resemblance as that of accused of Rakesh Kumar in the parade. He also stated that the prosecutrix identified accused Rakesh. Therefore, from what has been discussed above, there is no doubt whatsoever with regard to the identification rt of the accused by the prosecutrix and the argument of the learned counsel for the appellant Rakesh Kumar that he was not properly identified and that test identification parade was just a farce is without merit and the same is accordingly rejected.
54. The Hon'ble Supreme Court in Ram Babu Vs. State of Uttar Pradesh (2010) 5 Supreme Court Cases 63 has held:
"13. Section 9 of the Evidence Act, 1872 reads:
"S. 9. Facts necessary to explain or introduce relevant facts.--Facts necessary to
explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 49 by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose."
.
14. As per Section 9 of the Evidence Act, facts which establish the identity of an accused are relevant. Identification parade belongs to investigation stage and if adequate precautions are ensured, the evidence with regard to test identification parade may be used by the court for of the purpose of corroboration. The purpose of test identification parade is to test and strengthen trustworthiness of the substantive evidence of a rt witness in court. It is for this reason that test identification parade is held under the supervision of a magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as magistrate is expected to take all possible precautions."
55. The Hon'ble Supreme Court in Dastagir Sab and another Vs. State of Karnataka (2004) 3 Supreme Court Cases 106 had held:
"9. No law states that non-holding of Test Identification Parade would by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of each case.
10. In the facts of this case, holding of T.I. Parade was wholly unnecessary. Had such ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 50 T.I. Parade been held, the propriety thereof itself would have been questioned before the Trial Court.
.
11. In State of H.P. Vs. Lekh Raj and Another [(2000) 1 SCC 247], this Court emphasized the purpose for holding test identification parade in the following terms:
"3...During the investigation of a crime the police of agency is required to hold identification parade for the purposes of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not rt previously known to the witness or the informant.
The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Identification parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character. This Court in Budhsen v. State Of U.P. ((1970) 2 SCC 128 : 1970 SCC (Cri) 343) held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularity. In such cases test identification is considered a safe rule ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 51 of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this .
general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration purposes for of believing that the person brought before the court was the real person involved in the commission of the crime. The identification parade even if held, rt cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant."
(See also Dana Yadav alias Dahu and Others Vs. State of Bihar (2002) 7 SCC
12. Yet again in Malkhansingh and Others Vs. State of M.P. [(2003) 5 SCC 746] this Court observed:
"16. It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 52 which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case the Courts below have concurrently found the evidence of the .
prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable. We find no error in the reasoning of the Courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know of the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad day rt light. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night.
She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity..."::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 53
13. In Ashfaq Vs. State (Govt. of NCT of Delhi) [2003 (10) SCALE 732], this Court observed:
.
"...Though as a matter of general principle, the point urged with reference to the omission to conduct earlier the test identification Parade may be correct, the question as to whether there is any violation of the same in a given case would very much depend on the facts and circumstances of of each case and there cannot be any abstract general formula for universal and ready application in all cases..."
56. rt The argument of learned counsel appearing for the appellant Ram Prasad to the effect that testimony of PW6 and PW 21 have not been correctly appreciated by the learned trial Court does not has any force. PW6 Munish has narrated the occurrence of the events and he has clearly pointed out that it were the accused person who got the prosecutrix separated from him on the fateful date. The testimony to this effect of PW 6 could not be shattered in the cross-
examination by the defence. During the course of arguments, learned counsel for the appellant Ram Prasad could not substantiate his contention as to how and on what basis it was being contented that the testimony of PW6 has not been correctly and rightly appreciated by the learned trial Court. As far as PW 21 Dr. Vivek Sahajpal is concerned, he has categorically stated that accused Ram Prasad is the source of male DNA found on Exhibits 1-A to 1-C and Exhibit 5.
::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 54Therefore, it is not understood as to how the statement of PW21 has not been correctly appreciated by the learned trial Court. PW9 Dr. Asha Negi has also stated that there was presence of human sperms .
in the vaginal swab, pubic hair, underwear, vaginal slides and trouser of Gurmit Kaur, which was suggestive of the fact that sexual intercourse was happened. Dr. G.C. Thakur, Assistant Director, State Forensic Science Laboratory, Junga has also categorically deposed of that as per his report Ext. PW18/A human semen was detected on vaginal swabs, sample public hair and underwear of Gurmeet Kaur.
He also stated that human semen was detected on vaginal slides rt exhibit-1b. All these facts clearly demonstrates that the learned trial Court has not mis-read or mis-appreciated the testimony of either PW6 or P21 as was argued by learned counsel for appellant Ram Prasad.
57. Besides this, we have also carefully gone through the judgment passed by the learned trial Court and we find that learned trial Court has taken into consideration all the aspects of the matter and the said Court after careful examination of the material place on record by the prosecution has returned the finding of conviction of the accused and that too by way of a reasoned judgment, which in our opinion contains correct findings which do not require any interference. In our considered view also, the prosecution proved beyond reasonable doubt the guilt of the accused and the evidence on record both ocular and documentary nails the guilt of the accused ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP 55 that they have gang-raped the prosecutrix. Therefore, while upholding the judgment passed by the learned trial Court, we dismiss the appeals filed by the appellants being devoid of any merit. Pending .
application(s), if any, also stands disposed of.
(Rajiv Sharma) Judge (Ajay Mohan Goel) of Judge August 11, 2016 (narender/bhupender) rt ::: Downloaded on - 15/04/2017 21:00:50 :::HCHP