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Jammu & Kashmir High Court - Srinagar Bench

Bashir Ahmad Matoo & Anr. vs State Of Jk Through P/S Khanyar, ... on 30 January, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

                    HIGH COURT OF JAMMU AND KASHMIR
                              AT SRINAGAR

Cr. Appeal No. 08/2014
MP No. 01/2017
                                                  Date of Order: 30th of January, 2018.

                               Bashir Ahmad Matoo & Anr.
                                            Vs.
                         State of JK through P/S Khanyar, Srinagar.

Coram:
                Hon'ble Mr Justice M. K. Hanjura, Judge.

Appearance:

      For the Petitioner(s):    Mr Bilal Ahmad Khan, Advocate.
      For the Respondent(s): Mr B. A. Dar, Sr. AAG.

i) Whether approved for reporting in                  Yes/No
             Law Journals etc.:
ii) Whether approved for publication
             in Press:                                 Yes/No

01. The broad features of the case, as carved out from the FIR and the other material gathered during the course of the investigation of the case, are that, on the 25th of May, 2003, the complainant lodged a complaint before the authorities of police station Khanyar, stating therein that her minor daughter (Ms X), left her home before a period of six days to offer prayers at the Shrine of Peer Dastageer Sahib but did not return. The complainant tried to trace her whereabouts. She did not succeed in her efforts. Later on, she came to know that her daughter has been kidnapped by the accused No.1, namely, Bashir Ahmad Matoo, with the connivance of his wife, namely, Dilshada (accused No.2), who, by deceitful means, enticed/ kidnapped her with the intention to Cr. Appeal No. 08/2014 Page 1 of 52 commit rape upon her person. On the basis of this information, an FIR bearing No. 66 of the year 2003 was registered at Police Station, Khanyar, for the commission of offences under Sections 363, 366A, 376 and 109 RPC and the investigation ensued. On the completion of the investigation of the case, a chargesheet, for the commission of offences under Section 363 and 376 RPC and for the commission of offences under Section 366A and 109 RPC was laid against the accused No.1 and 2 respectively in the Court of the learned Chief Judicial Magistrate, Srinagar and the learned Chief Judicial Magistrate, Srinagar by his order dated 14th of June, 2003 committed the case to the Court of learned Principal District & Sessions Judge, Srinagar. By his order of even date, the learned Sessions Judge, transferred the case to the Court of learned Additional Sessions Judge, Srinagar, for disposal under law. Thereafter, by order dated 21st of June, 2003, of the Court of the learned Additional Sessions Judge, Srinagar, the accused No.1, namely, Bashir Ahmad Matoo, was charged for the commission of offences under Section 363, 366-A, 376 RPC and the accused No.2, namely, Dilshada, was charged for the commission of offences under Section 363, 366-A, 376 and 109 RPC. The accused denied the charge and claimed to be tried. Accordingly, the prosecution was asked to produce the evidence in support of its case. The prosecution examined as many as 10 witnesses to bring home the guilt of the accused. The prosecution evidence was closed on 23rd of February, 2007 and the case was posted for recording the statements of the accused under Section 342 Cr.P.C. These statements of the accused were recorded on 19th of July, 2007. The accused, in these statements, denied the occurrence and the case was posted for advancing arguments in terms of Section 273 Cr.P.C. On 27th of July, 2007, the Court directed that it was not a case of no evidence and asked the accused to produce their evidence. The accused examined two witnesses in defence and it was on 5th of May, 2008, that the evidence in defence was closed and the case was posted for advancing Cr. Appeal No. 08/2014 Page 2 of 52 arguments. On the culmination of the trial, in terms of the judgment dated 28th of April, 2014, the learned trial Court held the accused No. 1 to be guilty of offences punishable under Sections 376, 363, 109 RPC and the accused No.2 was found guilty of offences punishable under Sections 366-A, 363, 376, 109 RPC. Thereafter, on the 10th of May, 2014, the accused No. 1, namely, Bashir Ahmad Matoo, was convicted and sentenced to undergo imprisonment for a period of 10 years and a fine of Rs. 10,000/- under Section 376(1) RPC, in default of the payment of fine, he was directed to undergo simple imprisonment for six months. The accused was also sentenced to undergo imprisonment of 3 years and 6 months and a fine of Rs. 5,000/- for offences under Sections 363, 109 RPC. In default of the payment of fine, he was directed to undergo simple imprisonment of two months. The accused No.2, namely, Dilshada, was convicted and sentenced to undergo imprisonment of ten years under Sections 366(A) RPC and a fine of Rs. 10,000/- was also imposed upon her and, in default of the payment of fine, she was directed to undergo further simple imprisonment of six months. The accused was also sentenced to undergo imprisonment of seven years under Section 363 RPC and a fine of Rs. 5,000/- was also imposed upon her and, in default of the payment of fine, she was directed to undergo simple imprisonment for a further period of two months. Further, the accused No.2 was also sentenced to undergo imprisonment of 3 years 6 months under Sections 376, 109 RPC and a fine of Rs. 2,000/- and, in default of the payment of fine, she was directed to undergo simple imprisonment of one month. All these sentences, on both the convicts, were directed to run concurrently.

02. The accused/appellants have assailed the judgment of conviction and sentence in an appeal filed before this Court on the grounds, inter alia, that the judgment in appeal is against the facts, law and the canons of justice. The Cr. Appeal No. 08/2014 Page 3 of 52 learned trial Court has not applied its mind to the facts and circumstances of the case. The learned trial Court, while recording the conviction, has failed to appreciate the evidence on record. The witnesses of the prosecution have not proved that the accused committed the offence, the commission of which has been imputed to them. The judgment has been passed on surmises and conjunctures. There is a huge delay in lodging the FIR and that, under the shade of the facts and the circumstances of the case, a reasonable and prudent man will not conclude that the crime, the commission of which has been attributed to them, has been committed by them. The learned trial Court has failed to appreciate the law and the facts involved in the case. In the premises, the accused/ appellants have prayed that the judgment under appeal be set aside and they be acquitted of the charges levelled against them.

03. Heard and considered.

04. Mr Bilal Ahmad Khan, the learned counsel for the accused, has vehemently argued that there is a delay in lodging the FIR which cuts at the very root of the FIR. The medical evidence negates the rape. The crime could not have been committeed by the accused No.1 in the way it has been attributed to him. The prosecution case is full of inconsistencies in material particulars. He has further argued that the benefit of the entire range of these circumstances has to be given to the accused, as a consequence of which, they have to be acquitted of the charges levelled against them.

05. Per Contra, Mr B. A. Dar, the learned Senior Additional Advocate General, appearing for the State, has argued that the prosecution has proved its case beyond any shadow of doubt. The learned Senior Additional Advocate General has also stated that it is a case of the rape of a minor girl and the evidence on record proves that the accused No. 1 has indulged in this gruesome and heinous crime, with the aid and assistance of the accused No.2, i.e. his wife.

Cr. Appeal No. 08/2014 Page 4 of 52

He has also argued that, in a case of rape, the delay in lodging the FIR is not fatal to the prosecution case. He has contended that the conviction in a case of rape can be sustained on the sole statement of the prosecutrix, provided it inspires confidence in the mind of a reasonable and prudent man and that the statement of the prosecutrix, here in this case, is credible, reliable and tenable in the eyes of law. There is no reason to disbelieve her. The prosecution has proved its case beyond any shadow of doubt. At the end, he has argued that the accused deserve to be punished adequately in a case like the present one, where a girl of a tender age has been ravished.

06. The Nitty-gritty of the matter is whether, while recording the judgment of conviction and sentence, the prosecution evidence has been scanned, evaluated and appreciated in the right perspective. The learned trial Court, as is clear from the impugned judgment dated 28th of April, 2014, has, after taking into consideration the entire evidence adduced by the prosecution, come to the following conclusion:

"Considered the arguments and perused the record available on the file. It is alleged by the prosecution that the prosecutrix a minor child aged about 14/15 years, had gone to the Shrine of Dastigir Sahib, where she met the accused No. 2 who out of the deceit and allurement enticed her to accompany her and she was accordingly taken to a place where she was kept for 6/7 days against her will and consent and during this period she was raped by the accused No. 1 and when the prosecutrix could not be recovered a FIR was lodged by the complainant with the police and the police along with complainant and other witnesses went to the house of the accused from where the prosecutrix was recovered. The prosecutrix was medically examined and the opinion given by the doctor was to the effect that rape has been committed upon the prosecutrix. The statement was made by the prosecutrix where she stated that she was raped by the accused accordingly, the case was registered against the accused and accused were found prima facie involved in the commission of the offences and as per the prosecution all the witnesses who have been examined by the prosecution have proved the guilt of the accused beyond reasonable doubt so, the accused as Cr. Appeal No. 08/2014 Page 5 of 52 such, are liable to be convicted. On the other hand, it has been alleged by the defence that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt so the accused as such, are entitled to be acquitted.

Some contentions have been raised by the counsel for the accused. I will have them set out with a view to immediately scan evidence and findings to examine how far defence has perforated the prosecution case. The first contention raised by the defence is that FIR has been lodged after the gap of 6/7 days. It has been contended that the FIR has been lodged on 25.5.2003 whereas it has also been alleged that the prosecutrix was found missing since last 6/7 days and during this period of 6/7 days the FIR has been lodged, but the FIR has been lodged after the period of 6/7 days and this delay has not been explained by the prosecution and as per the defence, the unexplained delay in lodging of the FIR is fatal for the prosecution, but this contention of the defence is not sustainable because it has been properly explained by the prosecution as to why the FIR was not lodged on the date when the prosecutrix was found missing. It has been stated by the complainant that when the prosecutrix was found missing, she tried to make search for her. It has been stated by PW5 that since the question of reputation of the family was involved so as such, the FIR was lodged after the gap of some days. It has been stated by PW1 that when she could not trace her in the houses of their relatives then she met a child who told her that she can locate her from the house of the accused and when she went to the house of the accused, the accused No. 2 denied to have any knowledge about the prosecutrix which forced her to lodge FIR. After the FIR was lodged, the prosecutrix was recovered from the illegal custody of the accused and as the delay has been properly explained in lodging the FIR so, as such, no benefit can be derived by the accused even if FIR has been lodged after the gap of 6/7 days. Besides this, in rape cases, the families find it very difficult to lodge FIR for the reason that the image and reputation of their families may get tarnished. Delay in lodging FIR can be condoned because more often than not parents feel apprehensive that in case the matter is referred to the police, the reputation of the family will be tarnished and the victim will be exposed to the glare of the society, the family members of the victim often decide not to report the matter to police, but in the present case delay in lodging the FIR has been properly explained. Besides this it has been held by the Hon'ble Supreme Court and the Hon'ble High Courts of the Country in a number of cases that the delay in lodging FIR in rape cases is not fatal and the delay in lodging the FIR in rape cases can be condoned and no benefit can be derived by the accused so as to Cr. Appeal No. 08/2014 Page 6 of 52 warrant his acquittal. My view is fortified by the law laid down in cases cited as State of Punjab v. Gurmit Singh 1996 (1) RCR 533(SC) wherein it has been held that in sexual offences, the delay in lodging the FIR, can be due to a variety of reasons, particularly the reluctance of the prosecutrix, or family members to approach the police, and lodge complaint, about the incident, which concerns the reputation and honour of the family and victim.

In State of Punjab v. Ramadev Singh 2004(1) Crimes 149 (SC), it has been held that delay in lodging FIR in rape cases is a normal phenomena and no benefit can be derived by the accused. In this regard reference may be fruitfully made to Satyapal v. State of Haryana, AIR 2009 SC 2190, wherein, the Supreme Court echoed similar sentiments. Para 20 of the report is extracted hereunder:

"20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon..... "family of victim in such cases is initially reluctant to lodge an FIR, delay of two-three days in lodging the FIR is not material and this delay does not affect the case of the prosecution."

Similarly in a case reported in 1996 Cri LJ 1728 : (1996 AIR SCW 998) State of Punjab v. Gurmit Singh, urged that a certain delay in the lodging of the FIR in cases of rape, is natural and understandable.

Second contention raised by the defence is that the story put up by the prosecution is not only unbelievable but also unthinkable because as per defence it is not possible that a man would rape a minor girl in presence of his wife, as per defence, prosecutrix has put up a false and fictitious story against the accused and as such, the accused cannot be held guilty for committing rape upon the minor girl. This contention of the defence is not sustainable because it has been stated by the prosecutrix in clear and unequivocal terms that when she was kidnapped by the accused No. 2 under the allurement that she will have to meet a man who will get her employed, she was told that she will have to surrender herself before the accused No. 1 then only she will get employment. She stated that when she stayed in the house of the accused, the accused committed rape upon her person without her will and wish and she was raped thrice by the accused No. 1 during that night. She has also stated that accused No. 2 was also sleeping on the same bed. The statement made by the prosecutrix is clear and unimpeachable and the statement made by her inspires the confidence. The prosecutrix Cr. Appeal No. 08/2014 Page 7 of 52 being a minor of immature understanding and age under allurement was subjected to rape by the accused No. 1 with the aid, assistance and connivance of the accused No. 2. The defence has failed to prove that the prosecutrix had been tutored to make a false statement against the accused so as to implicate the accused in a false and frivolous case. The prosecutrix being a minor and not, aware about the sex could not be expected to make a false allegation against the accused which is likely to affect her career unless and until same would have been true. As the prosecutrix was raped by the accused, she has stated true facts so as such; the plea raised by the defence that the prosecution story is unbelievable and unthinkable is not sustainable and as such, cannot be accepted.

Yet one more contention raised by the defence is that the prosecutrix is a major but not a minor. It has been alleged by the defence that in case it is alleged by the prosecution that the prosecutrix was a minor then the prosecution was required to prove this fact through positive and cogent evidence. It has been contended by the defence that as the prosecution has failed to prove that the prosecutrix was a minor by medical examination or by school record so, the prosecutrix as such, cannot be held minor, but she is to be presumed a major. This contention of the defence is not sustainable for the reasons that the prosecution has placed on record the photo copy of the date of birth certificate of the prosecutrix. The certificate has been attested by the Headmaster of the concerned school. The perusal of the certificate reveals that the date of birth of the prosecutrix has been recorded as 10.11.1988 and if the date of birth of the prosecutrix is recorded as 10.11.1988 then on the date of occurrence i.e. 25.5.2003 she was less than sixteen years of age and if the prosecutrix was below 16 years of age as such, being a minor, then the accused could not have taken her away from the lawful custody of her guardian without the consent of her parents. Even if it may be presumed that the prosecutrix accompanied the accused No. 2 out of her own free will and consent, but since she being a minor her consent becomes immaterial. Even if it has been alleged by the defence that the prosecutrix has joined the PW2 on her own and has stayed with her out of her own free will and consent but she being a minor and taking her away from the lawful custody of her guardian, is an offence and if she has been taken away from the lawful guardianship of her guardian, the accused as such, have committed the offence of kidnapping and rape so this contention raised by the defence that since prosecution has failed to determine the age of the prosecutrix so accused are entitled to be acquitted is not sustainable.

One more contention raised by defence is that the prosecution witnesses especially the PW1 and the prosecutrix i.e. the PW2 have Cr. Appeal No. 08/2014 Page 8 of 52 made contradictions in their statements. It has been contended that as the contradictions made by them go to the root of the prosecution case so the accused as such, are entitled to be acquitted. It has been contended by the defence that it has been stated by the prosecutrix that she sought permission of her mother and left for the Shrine of Dastigir Sahib whereas, it has been stated by the PW1 that when prosecutrix left the home she had gone to attend her duty and was not present at home. If this plea raised by the defence is taken to be true still no benefit can be derived by the accused from such a inconsequential abrasion and discrepancy. This fact whether the prosecutrix took the permission of her mother before leaving her home or left the home behind the back of her mother without seeking her permission will not absolve the accused from the criminal liability. The matter of fact is that the prosecutrix was allured by the accused No. 2 to accompany her under the pretext that she will be given employment so this fact as to whether the prosecutrix left the home with the permission or consent of her mother or left the home without the permission of her mother does not weaken the case of the prosecution and no benefit can be derived by the accused from these small discrepancies and abrasions. The prosecutrix being a minor, aged about 15 years so the accused had no right whatsoever to allure her and force her to accompany her under the pretext that she will be granted employment. The act of the accused No. 2 in alluring and enticing her to accompany her and later forcing her to have an intercourse with the accused No. 1 under the pretext that she will be granted employment is an illegal and unlawful for which accused are guilty for the commission of offences under sec 363, 366 A and 376 RPC.

The next contention raised by the defence is that the prosecution has only examined the interested and partisan witnesses. It has been contended by the defence that there was animosity between the complainant and the accused and in order to implicate the accused in a false and frivolous case, police has concocted a false case in connivance with the complainant against the accused and it has been contended by the defence that prosecution has only examined close relatives of the complainant so accused are entitled to be acquitted but this contention raised by the defence is not based on facts because the prosecution has examined all the witnesses who are the eye witnesses to the occurrence. The prosecutrix has been recovered in presence of her mother PW 1 and PW5, Ghulam Qadir. It has been stated by the I.O in his statement that after FIR was lodged he along with the complainant PW1 and PW5 Ghulam Qadir went to the house of the accused and in their presence the prosecutrix was recovered from the illegal custody of the accused.

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Since the prosecutrix was recovered in presence of PWs 1 and 5 so both the witnesses i.e. PW1 and PW5 being eye witnesses have stated that the prosecutrix was recovered from the illegal custody of the accused, so as such, it cannot lie in the mouth of the defence to allege that the prosecution has examined only interested and partisan Witnesses. Since the prosecutrix was recovered from the illegal custody of the accused in presence of the PW1 and 5 and as both the witnesses have stated that she was recovered in their presence and recovery memo was prepared and the contents of the recovery memo have been proved by both the witnesses so as such, the plea raised by the defence that the prosecution has examined only the interested witnesses is not sustainable. Furthermore it has been contended by the defence that the prosecution has failed to examine any independent witness or cite any independent witness, the non-examination of the independent witnesses creates the doubt in the case of the prosecution, the benefit of which must go to the accused, as such, the accused are entitled to be acquitted. Whereas, on the other hand, it has been contended by the prosecution, that the prosecution has examined all the material witnesses who are eye witnesses to the occurrence. Since defence has failed to show that there was any animosity between the complainant and the accused so the statement made by the witnesses cannot be discarded merely on the ground that the witnesses are related to each other or the witnesses are close relatives of the prosecutrix. It has been alleged by the prosecution that no parent can be expected to tarnish the image of her minor daughter and allege that rape has been committed unless and until same is correct. It has been submitted by the Ld. APP that the matter of fact is that accused committed rape upon the minor girl and the prosecution has been able to examine the witnesses who have come forward to make depositions. The complainant and the other witnesses being natural witnesses who were present at the time prosecutrix was recovered are acquainted with the facts of the case and as such have been examined by the prosecution and all these witnesses have deposed against the accused and have clearly stated that the accused no 1 has committed rape upon the prosecutrix so the accused, as such, guilt of the accused has been proved and as such are liable to be convicted. Moreso, when the prosecution version of the story finds support from the medical evidence. The medical evidence is unblemished and quite clear and the medical evidence implicates the accused for the commission of the offence, the medical evidence clearly shows and establishes that the prosecutrix has been subjected to rape. The prosecutrix was examined medically after the occurrence and the Doctor who examined her has given the clear opinion that the rape has been committed upon the person of the prosecutrix so evidence Cr. Appeal No. 08/2014 Page 10 of 52 is taken together leads to the irresistible conclusion that the accused has committed the rape upon the person of the prosecutrix, as such, accused are liable to be convicted.

As far as this contention of the defence that a false case has been concocted against the accused is concerned, same appears to be not-sustainable for the reason that prosecution has examined only those witnesses who have come forward before the prosecution and made deposition about the occurrence. The prosecution could not have compelled the witnesses to come forward and make statements and if the witnesses who are forthcoming are interested and partisan witnesses, it cannot be said that the case of the prosecution is liable to fail because it has examined interested and partisan witnesses as alleged by the defence.

I hardly find any merit in the submission made by the defence that the witnesses being partisan and interested so their statements cannot be believed because all the witnesses who have been examined by the prosecution are the natural witnesses, their presence is established by the fact that they were present at or near the spot of occurrence because after the prosecutrix was kidnapped, FIR was lodged and police recovered the prosecutrix in presence of witnesses from the house of the accused so all the witnesses such as Pws 1, 5 and I.O. are the natural witnesses and if they have been examined by the prosecution and if they have implicated the accused for commission of offences it cannot be said they are interested witnesses or partisan witnesses so as to discard their testimonies. If the prosecution has examined these witnesses to prove its case it cannot be said that they are the interested and partisan witnesses and so, as such, their evidence cannot be accepted. As far as this contention of the defence is concerned, same is not sustainable for the reason that the prosecution has examined only those witnesses who have come forward before the prosecution and made depositions about the occurrence. The prosecution could not have compelled the witnesses to make statements if the witnesses were not forthcoming or not interested in coming forward to make the statements regarding the occurrence.

A witness who is natural one and is the only possible eye witness in the circumstance of the case cannot be said to be interested. When the occurrence takes place in front of a house of a particular person then he becomes a natural witness of it. Similarly if a murder is committed in a dwelling house the inmates of the house are natural witnesses. If murder is committed in a brothel, the prostitutes and paramours are natural witnesses. There evidence cannot be brushed aside or viewed in suspicion on the ground that Cr. Appeal No. 08/2014 Page 11 of 52 they are here chance witnesses. Similarly the occurrence has taken place inside a house so the inmates and neighbours are all natural witnesses and their evidence cannot be discarded. To support my view support can be had from AIR 1983 SC 680.

Learned counsel for the accused has not been able to point out any material from the statements of the witnesses, by reason of which it could be said that they have made any false statement so their evidence may be liable to be rejected. The submission that the witnesses are partisan and interested, therefore, they cannot be relied upon, cannot be accepted as a fixed formula or an inflexible principle .of_ appreciation of evidence. Normally, as in this case such witnesses are very natural witnesses to be found present on the spot. They are competent to depose about the incident; Until and unless there is any cogent material on record which suggests that the witnesses made a false statement so as to implicate the accused ' in a false and frivolous case, their evidence cannot be discarded merely because they have deposed against the accused.

It is not easy to secure statement of independent persons in the sense that they may not be connected with any party. Whosoever, may come forward to depose may be aligned to one or the other faction. No good reason has been given by the defence. A witness who is natural one and is the only possible eye witness in the circumstance of the case cannot be said to be interested. Therefore the contention of the defence can not be accepted and the evidence of prosecution witnesses who are natural witnesses and their presence has been established by the fact that they reside in and around the place of occurrence cannot be discarded. Besides this, it is well settled law that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested witness or both, if otherwise same is found credible. Reference in this connection can be made to AIR 1952 SC 54, AIR 1953 SC 364, AIR 1957 SC 614, AIR 1965 SC 202, AIR 1973 SC 2407, AIR 1974 SC 276, AIR 2002 SC 1468 and AIR 2002 SC 2775.

Furthermore, the contention raised by the defence that statement made by prosecutrix is not supported or corroborated any other witness so accused are entitled to be acquitted is not sustainable because the allegation against the accused is that the accused No. 1 committed rape upon the person of the prosecutrix with the aid and assistance of the accused No. 2 and this fact as to how she was kidnapped, lured by the accused No. 2 and raped by the accused No. 1 has been stated and explained by the prosecutrix. Prosecutrix is the only eye witness to the act of rape and kidnapping and this fact that she was kidnapped under the allurement by the Cr. Appeal No. 08/2014 Page 12 of 52 accused No. 2 and raped by the accused No. 1 with the aid and assistance of the accused No. 2 has been established by the prosecution through the evidence of prosecutrix and by the corroborative evidence of other witnesses. The rape has taken place behind the closed doors there is no other eye witness other than the prosecutrix herself and if prosecutrix has herself stated that she was raped by the accused so as such, the statement made by the prosecutrix is to be accepted and believed. Ordinarily there is no need to seek corroboration of the statement made by prosecutrix. It is an admitted position of law that in rape cases conviction can be made on the basis of uncorroborated statement made by prosecutrix. In this regard, I may refer to some of the decisions passed by Apex Court. In State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384 the Supreme Court laid down that normally no self respecting woman would come forward to make false allegation of rape. Relevant portion of the report is extracted hereunder:

"8....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 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 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 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..."

Whether corroboration is essential in rape cases before convicting an accused person?

The problem was considered by Hon'ble Supreme Court earlier in the year 1951 in Rameshwar Kalyan Singh V. State of Rajasthan, AIR 1952 SC 54 : (1952 Cri LJ 547) and taking into considerations both Sections 133 and 114(b) of Indian Evidence Act, answered the question in the following manner at page 550 of Cri LJ:-

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"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or by them. There is no rule or practice that there must...."

Hon'ble Supreme Court in cases cited as Ram Murti v. State of Haryana, AIR 1970 SC 1020 : (1970 Cri LJ 991) and in Gurucharan Singh v. State of Haryana, AIR 1972 SC 2661 : (1973 Cri LJ 179), AIR 1976 SC 1774: (1976 Cri LJ 1376) held :- Rafiqu v. State of U.P., AIR 1981 SC 559 : (1980 Cri LL 1344) and in Sheikh Zakir v. State of Bihar, AIR 1983 SC 911: (1983 Cri LL 1285) has observed in the following manner that :

"Even though a victim of rape cannot be treated as an accomplice, the evidence of the victim in a rape case is to be treated almost like the evidence of an accomplice requiring corroboration. Hence there must be an indication in the course of the judgment that the judge had this rule in his mind when he prepared the judgment and if in a given case the judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground."

The Hon'ble Supreme Court in State of Maharashtra v.

Chandra Prakash Kewal Chand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889) held that 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 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. On corroboration it was further stated that:-

"To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust Cr. Appeal No. 08/2014 Page 14 of 52 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 the case of an accomplice to a crime".

The law laid down in the above-noted cases has been further approved by the Hon'ble Supreme Court in the cases such as Karnel Singh v. State of M.P., AIR 1995 SC 2472 : 1995 Cri LJ 4173. State of Punjab v. Gurmit Singh AIR 1996 SC 1393 : 1996 Cri LJ 1728, by observing that, corroboration of the testimony of prosecutrix in rape case is not required as a rule of law but, however, it may be required as a matter of prudence and this rule of prudence has now almost hardened into rule of law and that the rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of Judge and must have been incorporated in the judgment.

Furthermore it is to be borne in mind that while examining a case like the present one, where a minor girl of about 14/15 years has been kidnapped and subjected to rape, it becomes the bounden duty of the Court to carefully weigh end evaluate the evidence. The court cannot loose sight of the fact that in the society in which we live, no woman would come forward generally speaking, to make a humiliating statement against her honour of being raped unless it was true. The nature and extent of the corroborative evidence that is required varies according to the circumstances of the case. The corroboration which is required is with regard to the crucial parts of her testimony which, if proved, would establish the guilt of an accused. Law does not require corroboration (Sec. 138 Evidence Act) and, therefore, if the statement of the prosecutrix inspires confidence and is believed, there is no bar to convict accused on her sole testimony even. It will also be relevant to point out here that the statement made by the prosecutrix immediately after the occurrence is legally admissible and relevant as evidence of conduct under Sec. 8 of the Evidence Act. It is also admissible as corroboration of the evidence of the prosecutrix in the Court under section 157 of the Evidence Act, The court cannot loose sight of the fact that the crimes of violence upon women are on the increase and therefore, supposed contradictions which have no material effect on the veracity 'of the prosecution case or even discrepancies in the statements of the witnesses, should not, unless the discrepancies are such which are of a fatal nature, be allowed to throw-out an otherwise reliable prosecution version.

Cr. Appeal No. 08/2014 Page 15 of 52

As regards the argument that the prosecutrix does not support the prosecution case, it needs to be mentioned that the accused have targeted a minor simpleton girl and while making it misuse of her immaturity and lack of understanding, took her away after offering her opportunity of Govt. job, kept her throughout the night and thereafter in her house and allowed accused no 1 to commit rape upon her. It is not a case of girl over 16 years of age where the question of consent normally remains debatable. But in this case the consent of the prosecutrix is immaterial and as such when there is sufficient medical evidence with regard to commission of the crime and the girl has been recovered from the possession of the accused, then the accused have to explain as to who else had kidnapped her and committed the offence of rape upon her. It is to be borne in mind that no corroboration is required in the case of minor girls, less than 16 years of age, if the testimony of the prosecutrix, inspires confidence of the court when her evidence is evaluated. Actually, this principle of law has been enshrined by the Apex Court for the reason that the victim of rape would not implicate a person of such heinous crime falsely by sacrificing her own repute and that of the repute of the family. The Apex Court in case State of Punjab vs. Gurmit Singh and others (1996) 2 SCC 384, observed that sexual violence operate from being de-humanizing act, is an unlawful intrusion in the right of privacy and sanctity of the family. It is a serious blow to her supreme honour and often destroys her self- esteem, dignity and degrades and humiliates the victim and where the victim is helpless, innocent minor child, it leaves behind a traumatic experience. A rapist not only causes the physical injuries but more in deliberate leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the less her chastity. The rape is not only a crime against the person of a woman, but it is a crime against the entire society.

The law is well settled that the prosecutrix is not an accomplice and as such is not under any disability to make a deposition. If her testimony inspires confidence, then she alone, without corroboration, can be relied upon. Reference, in this regard can be made to the judgment delivered in case Suresh Chand vs. State of Haryana 1976 Cr. LJ 452. In order to discard the testimony of the prosecutrix, the defence should spell out a motive which could prompt some one on the side of the prosecution to persuade a witness to make a statement against the accused.

In Bharvada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 : 1983 Cri LJ 1096, the Supreme Court observed thus (at page 756) of AIR:

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"Corroboration is not the sine qua non for a conviction in a rape case. 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 spectacles fitted with lences tinged with doubt, disbelieve or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society."

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. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. 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. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. "

From the above quoted observations of the Supreme Court it is clear that the law does not require corroboration and, therefore, if the evidence of the prosecutrix is believed, there is no bar to convict the accused on her testimony alone.

In Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547, is a case where accused Rameshwar was charged with committing rape on a young girl of eight years of age. In that case while dealing with the issue whether the conviction of an accused in a rape case become illegal merely because it is based on the uncorroborated testimony of the prosecutrix, the Supreme Court held thus (at page 57) of AIR:

".......... The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it must be present to the mind of the judge, and injury cases must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other Cr. Appeal No. 08/2014 Page 17 of 52 circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, many render corroboration necessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

In Shaikh Zakir v. State of Bihar, AIR 1983 SC 911: 1983 Cri LJ 1285, the Supreme Court held that if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground.

Now adverting back to the facts of case in hand in light of the discussion made hereinabove it has been stated by prosecutrix that under allurement she was kidnapped by accused no 2 to her house where she was raped by accused no 1 during the night and after FIR was lodged she was recovered from the illegal custody of the accused. If her statement needs any corroboration that corroboration is supplied by the statements made by the PWs 1 and 5 and the I.O. of the case, because the prosecutrix was recovered by the I.O. in presence of PWs 1 and 5 and all the witnesses who have witnessed recovery have stated that the prosecutrix a minor was recovered from the illegal custody of the accused, so as such, the guilt of the accused has been proved and the plea or the contention raised by the defence that the prosecutrix has not supported the case of prosecution or the contention that there is no corroboration from other witnesses pales into insignificance as such cannot be accepted.

Yet one more contention raised by the defence is that no marks of injuries/ bruises have been found on the private parts of the prosecutrix, the doctor during her examination has not stated that the prosecutrix was subjected to any rape. This contention of the defence is not sustainable because as per the statement made by the prosecutrix, she has stated that she was raped by the accused on the first day of her kidnapping and after her recovery she was examined by the concerned doctor after the gap of 5/6 days. It has been stated by prosecutrix that she was asked by the accused No. 2 to surrender herself before accused no 1, then only she will get employment so it can be inferred that the prosecutrix being a minor was given a promise that she would be provided employment only if she surrendered herself before the accused No. 1 as such she did not put any resistance and when she did not put any resistance so no marks of violence or bruises could have been sustained by her on her private parts and therefore no marks of violence could be located or Cr. Appeal No. 08/2014 Page 18 of 52 observed on her private parts by the doctor who examined her. Besides this, it is admitted position of law that absence of any bruises and marks of violence on the private parts of the prosecutrix will not lead to the presumption that rape has not been committed. But in the present case the prosecutrix being a minor and even if her consent was obtained by the accused and even if the prosecutrix was the consenting party still her consent is immaterial and, as such, the accused cannot be absolved from guilt on the ground that the prosecutrix was the consenting party because no marks of violence were found on her private parts by the doctor who examined her. Since it has been found by the doctor that hymen of the prosecutrix ruptured and intercourse has taken place 48 hours earlier and this fact has been corroborated by the statement made by the prosecutrix herself where she has stated that she was raped by the accused against her wish and consent so as such, the guilt of accused is proved inspite of the fact that torn hymen was not accompanied by injuries or bruises on private parts.

Moreso, the fact that the doctor noticed that the hymen was found torn corroborates that sexual intercourse was committed on the prosecutrix. It is true that the doctor did not notice any external injury and also did not make any mention about the presence of bruises or injuries on her private parts but it is important to note that in this case, the prosecutrix did not allege any violent act of forced sexual intercourse. Thus, the absence of any external injury in such circumstances would not negate the allegations of sexual intercourse with the prosecutrix against her consent, particularly when she was medically examined few days after the incident. Besides this the absence of visible marks of injuries on the person of the prosecutrix will not necessarily mean that she had not suffered any injuries or she had offered no resistance or she was a consenting party. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation. My View is fortified by the law laid down in judgments passed by Apex Court in cases cited here under, In State of Rajasthan v. N.K., (2000) 5 SCC 30, the Supreme Court held as under:

"18......The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence falsity of the allegation or an evidence of consent Cr. Appeal No. 08/2014 Page 19 of 52 on the part of the prosecutrix. It will all depend on the facts and circumstance of each case.

In Sk. Zakir [Sk. Zakir v. State of Bihar (1983) 4 SCC 10 :

1983 SCC (Cri) 76 : 1983 Cri LJ 1285], it was observed by the apex Court that absence of any injuries on the person of the prosecutrix, who was the helpless victim of rape, belonging to a backward community, living in a remote area not knowing the need of rushing to a doctor after the occurrence of the incident, was held not enough for discrediting the statement of the prosecutrix if the other evidence was believable.

In Balwant Singh [Balwant Singh v. State of Punjab, (1987) 2 SCC 27 : 1987 SCC (Cri) 249 : 1987 Cri LJ 971] Apex Court held that every resistance need not necessarily be accompanied by some injury in the body of the victim; the prosecutrix being a girl of 19/20 years of age was not in the facts and circumstance of the case expected to offer such resistance as would cause injuries to her body.

In Karnal Singh [Karnal Singh v. State of M.P., (1995) 5 SCC 518 : 1995 SCC (Cri) 977], it was observed by the Apex Court that absence of marks of external injures on the person of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that she was a willing party to the act of sexual intercourse....."

Thus, the absence of any external injury in the circumstances of the case would not belie the case of the prosecution. Moreover, the age of the prosecutrix was just about 15 years. Even if it assumed that there was consent on the part of the prosecutrix for the sexual act committed by the accused, the consent was immaterial as the prosecutrix was incapable of giving any consent or even understanding the act committed by the accused. As per the case of the prosecution because of deceit, promise held out by accused, the prosecutrix did not offer any resistance. Otherwise, also a girl of 15 years can hardly offer any resistance to a fully grown mail, so this plea raised by the defence that absence of any bruises or marks of violence on the private parts of the prosecutrix will absolve the accused from the criminal liability is not sustainable and as such, cannot be accepted.

Having analyzed and repelled contentions raised by the counsel for the accused, it is imperative now to scan the evidence so as to find out whether the prosecution has been able to establish the guilt of the accused beyond any reasonable doubt. But therefore touching the merits of the case, it must be stated here, as to what Cr. Appeal No. 08/2014 Page 20 of 52 approach, the court should adopt, while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex related offence. It is 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 prosecution? Let me see, if the Evidence Act, provides the clue to the riddle. Under the Evidence Act, evidence means and includes all statements which the court permits or requires to be made before it, by the witnesses, in relation to the matters of fact, under inquiry. Under Section 59 of the Evidence Act, all facts, except the contents of the documents, may be proved by oral evidence. Section 118 then illustrates, as to who may give oral evidence. According to that Section, all persons 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 in the case of an accomplice, section 133 provides that he/she shall be a competent witness, against an accused person, and the conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice. There is no requirement in law that corroboration can only be by plurality of evidence for what would be rendering naught the provisions of section 134 of the Indian Evidence Act which render conviction on the testimony of a single witness permissible. A bear reference of Section 134 of the Indian Evidence Act, 1872 ( in short 'the Evidence Act) would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witnesses was speaking the truth then on his evidence alone conviction can be maintained. This is a factor which has be weighed along with the other materials to see whether the prosecution reliable, cogent and trustworthy. It is not the law that all the witnesses cited by the prosecution as direct witnesses need be examined. The prosecution must unfold the full narration of the material particulars of its case. It is not the quantity but quality of the evidence that is needed. It is settled law that even the evidence of a single witness, if truthful and found acceptable, would form basis to convict the accused without corroboration which is not a Rule but an added assurance. The witness must be reliable to inspire confidence for acceptance of his evidence. It is, therefore, not Cr. Appeal No. 08/2014 Page 21 of 52 necessary to examine all the other witnesses unless the prosecution so chooses.

Furthermore, in Gurbachan Singh v. Sat Pal it has been held by the Apex Court that simply that degree of doubt, which could permit a reasonable and just man to come to a conclusion. Reasonableness of doubt must be commensurate with the nature of offence, to be investigated. Exaggerated devotion to the rule of benefit of doubt, must not nurture fanciful doubts, and lingering suspicions, and thereby destroy social defence. Justice cannot be made sterile, on the plea, that it is better to let hundred guilty escapes than punish an innocent. Letting guilty escape, is not doing justice, according to law.

In State of Uttar Pradesh V. Anil Singh, the principle of law, laid down, was to the effect, that it is necessary to remember that a judge does not preside over a criminal trial, merely to see, that no innocent man is punished. A judge also presides to see that guilty man does not escape. One is as important, as the other. Both are public duties, which the Judges has to perform.

The criminal trial means testing the evidence of the witnesses and finding out whether it inspires any confidence in the mind of the court or not. The credibility of the witness therefore, is always a matter of confidence that it inspires regarding its intrinsic, genuineness and truthfulness of its overall dependability beyond any manner of doubt and this doubtless dependability of the witness in turn depends upon the answers to the questions like (1) Is the prosecution story probable ? (2) Does it suffer from any patent infirmities like animosity between the parties? (3) Does it suffer from any vital contradiction which cuts at the very root of the prosecution case and (4) whether reading the evidence of the prosecution witness as a whole; does it inspire the confidence of the Court?

As far as the first essential ingredient regarding probability is concerned, the prosecution story is that the prosecutrix had gone to the Shrine of Dastigir Sahib and did not return back to home for about 5/6 days. After the FIR was lodged, she was recovered from the house of the accused. The prosecutrix was medically examined. Statement of the witnesses including prosecutrix were recorded, prosecutrix has stated that she was lured by the accused No. 2 to her house on the pretext that she will provided employment provided she surrenders herself before a man who will get her employed, so she was kept in illegal custody for about 5/6 days by the accused in their house. She has further stated that she was told that in case she wants employment then she should not raise any hue and cry so she acted Cr. Appeal No. 08/2014 Page 22 of 52 and behaved accordingly, resultantly she was raped by accused no 1 with the active aid and assistance of accused no 2. After she was recovered, it was stated by the prosecutrix that she was raped by the accused No. 1 with the aid and assistance of the accused No. 2. She was medically examined by the doctor. The prosecutrix was recovered from the illegal custody of the accused in presence of the witnesses and all the witnesses in whose presence she was recovered have stated in clear and unequivocal terms that prosecutrix was recovered from the illegal custody of the accused and after she was medically examined it was revealed by the medical examination that her hymen was ruptured and she was subjected to intercourse so this part of the prosecution story is quit believable.

As far as the second essential ingredient is concerned, the case of the prosecution does not suffer from any patent infirmity as no animosity or enmity has been proved between the parties. The defence has failed to prove that the witnesses had any reason to falsely implicate the accused. Whether the prosecution witnesses have any ulterior motive to falsely implicate the accused person is indeed always difficult to find out, as such motives are never writ large on the face of witnesses so as to be easily marked. In fact, such motives lie deep down in the inner-most layers and the recesses of the heart of the witnesses where no one has any access but in order to prove that there was any animosity on the basis of which the witnesses implicated the accused or there was any mala-fide intention on the part of the witnesses to implicate the accused the defence must prove beyond any doubt such intentions or state of mind of the witnesses but in absence of such proof no weight can be given to such kind of contentions raised by the defence. The defence has failed to prove that there was any mala-fide intention on the part of the witnesses to implicate the accused. There is no material on the file which suggests that there was any animosity between the parties and the parties were involved in any dispute prior to the occurrence. In absence of such proof and material suggestive of the fact that the parties were hostile towards each other, such a contention alleging that the witnesses have falsely implicated the accused in a false and frivolous case on the basis of animosity is not sustainable.

As far as the third essential ingredient is concerned, there may be some minor contradictions in the statements made by the witnesses, but these contradictions do not cut the very root of the prosecution case, so as such, no importance can be given to such minor contradictions. When the statements made by the prosecution witnesses are put under microscopic, all the material witnesses have stated that prosecutrix was recovered from the illegal custody of the accused and it has been stated by the prosecutrix as to how she was Cr. Appeal No. 08/2014 Page 23 of 52 lured and enticed by the accused No 2 and as to how she was kidnapped. She has stated how she was made to surrender before the accused No. 1 because she was promised by the accused No.2 that she would be provided employment at the hands of the accused No.1, so she did not raise any hue and cry and put herself at the mercy of accused No. I who ravished her. Prosecution witness PW-6 has stated that he has no knowledge about the occurrence and the prosecutrix is not known to her. Even though he has been declared hostile but he has admitted that prosecutrix was recovered from the house of the accused. The other witnesses have stated in clear and unequivocal terms that prosecutrix was recovered from the house of the accused and this fact that she was raped by the accused No.1 has been stated by the prosecutrix herself. Since the ape has taken place behind the closed doors where no other person other than the prosecutrix herself has been eye witness so her statement cannot be brushed aside. Since the prosecutrix is the only witness to the occurrence and she has stated that she was raped by the accused and her statement has been corroborated by other prosecution witnesses and also by medical evidence which goes to show that hymen of the prosecutrix was found ruptured and she was subjected to intercourse. It has been stated by the witnesses that prosecutrix was recovered from the illegal custody of the accused and this part of the evidence has remained un-rebutted and defence has filed to shake the evidence of the prosecution in any manner. More so, all the witnesses who are witnesses to the recovery have proved the fact that the prosecutrix was recovered from the illegal custody of the accused. On this point there are no contradictions in the statements made by the prosecution witnesses. All the witnesses have deposed in one voice without any material contradiction here and there that the prosecutrix was recovered from the illegal custody of the accused. This fact that she was recovered from the house of the accused has been proved by all the witnesses beyond any shadow of doubt. This part of the evidence has remained un-rebutted and defence has failed to shake the evidence of the prosecution in any way. More so, when all these witnesses were present on the scene and witnessed the recovery with their naked eyes.

As far as the 4th essential ingredient is concerned, the prosecution evidence taken as a whole inspires confidence of the court. However, heinous and revolting in nature the crime may be, creating emotional turmoil in the heart and mind of the Judge, same cannot be permitted to blinden the judicial vision from objectivity appreciating the case in its proper perspective by seeing whether apart from the heinousness of the crime, there was any credible evidence worth the name to connect the accused with the crime Cr. Appeal No. 08/2014 Page 24 of 52 alleged against him. Between the allegations of the heinousness of the crime, on the one hand, and the accused on the other hand, before any conclusion as to the guilt of the accused is reached in between the two, there is a definite gap which is required to be bridged only by the cogent, convincing and reliable prosecution evidence. The case of the prosecution is based on direct ocular evidence which has remained un-rebutted and un-shattered by the defence. The ocular evidence proves the factum of guilt of the accused and thus is sufficient to hold that the accused no. 1 has committed the offence and the accused no. 2 has aided and abetted the commission of offences., Direct evidence which is available on the file proves the factum of the guilt of the accused that is sufficient to convict the accused for the commission of offences committed by them.

The edifice of the prosecution case is based on the deposition made by the witnesses who as per the defence are partisan and interested because they have implicated accused in a concocted case. It has been argued by the defence that all the witnesses have not been examined by the prosecution and had those witnesses been examined they would have supported the cause of accused but there is nothing on the file suggestive of the fact that the prosecution witnesses have made false statements so as to implicate the accused in a false and frivolous case. Defence has failed to shatter the prosecution evidence, so as to bring any material contradiction on the record thus the prosecution witnesses can be safely relied upon. The prosecution has not only proved its case by the ocular evidence but it has also proved the case against the accused by the medical evidence as well. The prosecution has proved its case beyond any doubt, so as such it can safely be inferred that prosecution has been able to prove its case against the accused.

In order to arrive to a just conclusion, I deem it necessary to analyze and examine the basic ingredients of Section 375 R.P.C punishable under Section 376 R.P.C, ingredients of Sec 361 RPC Punishable under Section 363 RPC and ingredients of Section 366 A RPC so as to appreciate as to whether acts of the accused attract the ingredients of Section 375 361 and 366 A RPC so as to make their acts punishable under Sec 376, 363, 366A RPC.

Section 375 of the R.P.C reads as under:

375:- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances Cr. Appeal No. 08/2014 Page 25 of 52 falling under any of the six following descriptions:-

First: - Against her will.

Secondly: - Without her consent.

Thirdly: - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly: - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly: - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly: - With or without her consent, when she is under sixteen years of age.

Explanation: - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

As far as the ingredients of Section 375 RPC are concerned it provides (i) that a man is said to commit rape who has sexual intercourse with the woman against her will (ii) without her consent and also with or without her consent when she is under 16 years of age and in the present case, the accused no 1 has committed rape upon the prosecutrix who is only aged about 14/15 years. The accused has committed rape upon her forcibly and she being a minor, so the question of consent as such does not arise at all. The witnesses have stated that the prosecutrix was raped by the accused. It has been stated by the prosecutrix that she was kidnapped by accused no 2 and raped by accused No. 1, the prosecutrix was immediately examined by the doctor who has opined that her hymen was ruptured and she was subjected to rape. These facts lead to the inescapable conclusion that accused No. 1 committed rape upon the prosecutrix as such; the ingredients of Section 375 RPC are fulfilled.

361. Kidnapping from lawful guardianship;

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Whoever takes or entices any minor under (sixteen years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful Guardianship.

As far as the ingredients of offence of kidnapping as defined by Section 361 RPC and punishable under Section 376 RPC are concerned, it provides that 1) there should be enticement by deceitful means, 2) enticement should be of a minor, 3) taking away must be from the lawful guardianship and 4) taking must be without the consent of the lawful guardianship.

So far as the facts of the present case are concerned, the prosecution case is that the prosecutrix is a minor, was allured by the accused No. 2 by deceitful means and was take to her home where she was held forcibly by deceitful means and on the pretext and promise that she will be provided employment and, as such, was kept in their illegal custody for 5/6 days without the consent and knowledge of her guardian and as far as the evidence led in by the prosecution is concerned, all the witnesses have stated that the prosecutrix was kidnapped by the accused and detained in their home for about 5/6 days and the prosecutrix was recovered from the illegal custody of the accused so, as such, the ingredients of Section 361 RPC punishable under Section 363 RPC have been fulfilled Section 366 RPC have been fulfilled.

366. Prosecution of minors;

Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.

The bare and cursory reading of this provision of criminal law provides that where a minor girl under the age of 18 years is induced by deceitful means or seduced to go from any place or is seduced for illicit intercourse with another person, the person who so induces the minor for sexual intercourse shall be liable for the commission of procuration of minor and as far as the facts of the present case are concerned, it has been stated by the prosecutrix that she met the accused No. 2 at the Shine and the accused No. 2 under the allurement kidnapped her and gave her an impression that Cr. Appeal No. 08/2014 Page 27 of 52 in case she obliges the accused No. 1 she will be granted employment and accordingly, the prosecutrix was raped by the accused No.1 so as such, the ingredients as are required to establish offence under Section 366-A RPC have been fulfilled and proved and all the witnesses especially the prosecutrix has stated that at the behest of the accused No. 2 she was raped by the accused No. 1 so as such, the guilt of the accused No. 2 for the commission of offence under section 366-A RPC has been established beyond any reasonable doubt.

Edifice of the prosecution case is based on the depositions made by the witnesses who as per the defence are partisan or interested witnesses because; they have implicated the accused in a false and concocted case. It has been contended by the defence that all the witnesses have not been examined by the prosecution and had those witnesses been examined by the prosecution and had those witnesses been examined they would have spoken in favour of the accused and against the prosecution. But as far as the record on the file is concerned, the witnesses who have been examined by the prosecution are all natural witnesses and they have seen the occurrence with their naked eyes. The PW1 being the complainant, the PW5 was also accompanying the police party at the time the prosecutrix was recovered from the illegal custody of the accused and even though, the PW6 has been declared hostile but he too has stated that prosecutrix was recovered from the illegal custody of the accused. As all the witnesses have stated that prosecutrix was recovered from the illegal custody of the accused and even though some witnesses have not been examined by the prosecution but no benefit can be derived by the accused from their non-examination. So this argument will not lie in the mouth of the defence to allege that prosecution has wit-held the material witnesses because as far as the case of the prosecution is concerned all the material witnesses have been examined by the prosecution and the prosecution has established the guilt of the accused beyond the reasonable doubt so as such, no serious infirmity and prejudice has been caused to the accused even if some of the witnesses have not been examined by the prosecution and more so, there is nothing on the file suggestive of the fact that the prosecution witnesses have made false statements so as to implicate the accused in a false and frivolous case. The defence has failed to shatter the prosecution evidence so as to being any contradictory material on the record as such; the statements made by the prosecution witnesses can be safely relief upon. The prosecution has not only proved its case by ocular evidence, but it has also proved the case against the accused by medical evidence as well. The contents of the recovery memo have been properly proved Cr. Appeal No. 08/2014 Page 28 of 52 and the contents of the FIR have been proved and it has been proved by the I.O as to how the investigation was conducted and how the prosecutrix was recovered and as to how she was medically examined and what opinion was given by the doctor. The accused was medically examined and it has been proved that the accused was potent by the medical opinion, so if all these facts are taken together prosecution case has been proved beyond all reasonable doubts, so as such, the prosecution has proved the guilt of the accused beyond all reasonable doubts so as such the accused are liable to be convicted.

Furthermore, it is to be borne in mind that while dealing with the testimony of child witness, the child at a tender age is incapable of having any malice or ill will against any person and there must be something on record to satisfy the court that something had gone wrong between the date of the incident and recording the evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of serious nature. If the age of the prosecutrix is take to be between 14 to 16 years, it would not be incorrect to state that the prosecutrix was not that small child, who could be tutored or prompted by some person having a personal vendetta to falsely implicate the accused and that too in a case which will cast a mental scar on her own chastity, dignity and prestige. In the present case, nothing has been brought on record to show that the prosecutrix had any planned agenda or motive to attribute the offence to the accused. Moreover the defense has failed to place on record any evidence to attribute any motive on the part of the prosecutrix to intentionally make a false statement to implicate the accused. The mandate of the law as settled by the Hon'ble Supreme Court in a case cited State of U.P Vs Krishna Master and Ors., AIR 2010 SC 3071, is that if the statement of the prosecutrix inspires confidence then the conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required.

Furthermore, it is to be borne in mind that normally in a case of rape the victim of rape would not implicate a person of such heinous crime by sacrificing her repute and that of the repute of her family. In this regard, I may refer to a judgment passed by the Hon'ble Apex Court in a case cited as 1996 2 SCC 384 titled as State of Punjab Versus Gurmeet Singh wherein, it has been held as under:

"that sexual violence apart from being de-

humanizing act, is as unlawful intrusion in the right of privacy and sanctity of the family. It is a serious blow to Cr. Appeal No. 08/2014 Page 29 of 52 her supreme honour and often destroy her self-esteem, dignity and degrade and humiliate the victim and where the victim is helpless, innocent minor child, it leaves behind a traumatic experience. A rapist not only causes the physical injuries but more in deliberate leaves a scar on the most cherished possession of a woman i.e. her dignity, honor, reputation and not the less her chastity. The rate is not only a crime against the person of a woman, but it is a crime against the entire society."

Further more in a case cited as (1996) 2 SCC 384, the Supreme Court has laid down that normally no self respecting woman would come forward to make false allegation of rape. Relevant portion of the report is extracted hereunder:

"8...... 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 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 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 overlook., The testimony of the victim in such cases is vital and unless here 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........"

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity- it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience, a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman; it is a crime against the entire society. It destroys, as noted by Hon'ble Supreme Court in Shri Bodhisattwa Gautam V. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman Cr. Appeal No. 08/2014 Page 30 of 52 and pushes her into deep emotional crisis. It is crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental rights, namely, the right to life contained in Article 21 of the Constitution of India, 1950. The courts are, therefore expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge, in our opinion, is a better statutory armour in cases of crime against woman than long clauses of penal provisions, containing complex exceptions and provisions.

The barbarity of the offence of rape cannot be overemphasized, especially when we have witnessed the most gruesome and horrific instances of the same in the recent past. Courts cannot turn a blind eye to the fact that the consequences of this monstrous act remain as devastating as ever, but may be the societal prism which shamed and blamed the survivor has changed angles. The women as a whole, cutting across status, class, culture, creed or sex are a vulnerable group but a minor child is most susceptible of the lot. The tender years of innocence where the children are taught to have faith in the goodness of humanity and nurturing relationships with trust fall apart when the same child becomes a prey in the hands of the lusty and unscrupulous men. The beastly act f ravishing a minor for exerting his position of male dominance and violating her physical and mental well-being, is attitude of a savage tribe and not of a civilized society. To fathom the aftermath of the sentience of the happening of such tormenting act on the person is to add yet another monumental blow to her dignity. The notion of the law being feeble and the offender being actually punished being remote is what needs a tectonic shift. To counter this feeling the law should act as a deterrent. The need for every person to know the legal ramifications of his vicious acts is important, especially that of rape. The emboldening of the law should act as a deterrent to the prevalence of flouting the law with impunity. The courts have to be the torchbearer to create the fear of law in the minus of the people that they have to think a million times before committing this immoral act. The common man should be daunted by the law and it can only come by ingraining in them the repercussions of their acts.

The fact that sweeping changes have been introduced in the laws as far as crimes against women are concerned reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will'. It is violation with violence of the private person of Cr. Appeal No. 08/2014 Page 31 of 52 a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. The offender robs the victim of her most valuable and priceless possession that is dignity.

The court cannot loose sight of the fact that in the society in which we live, no woman would come forward generally speaking, to make a humiliating statement against her honour of being raped unless it was true. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the courts. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to meet such challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law. The courts cannot loose sight of the fact that the crimes of violence upon women are on the increase and rape is most hated crime. It is crime against basic human rights and also violates right of life. Rape is thus not only a crime against the person of a woman (victim), but it is a crime against entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know for the rape, looks down upon her in derision and contempt. Rape is therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victims most cherished of the Fundamental Rights namely, the right of life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women.

This apart, the court should also keep in view that in the scheme of criminal justice system prevalent generally it is the state and not the victim which prosecutes the offender of law. The victim only assumes the role of a material witness in establishing the commission of crime. Though the victim is not before the court, yet the court should always remain alive to the nature of sufferings of the victim resulting from the alleged crime because in that lies the larger interest of the public.

Thus keeping in mind the facts and circumstances of the case and the discussion made hereinabove, in my opinion; the prosecution has been able to prove its case beyond all reasonable Cr. Appeal No. 08/2014 Page 32 of 52 doubts. The prosecution has been able to prove that the accused No. 2 enticed and lured prosecutrix a minor aged 14/15 years, by deceitful means and kidnapped her, detained her in her house where accused no. 1 committed rape upon her with the aid and assistance of accused No. 2. The witnesses who have been examined by the prosecution have proved the guilt of the accused beyond reasonable doubt. Besides this, the medical evidence also establishes the guilt of the accused beyond reasonable doubt.

Thus, accordingly, the accused No. 1 is convicted under Section 376, 363, 109 RPC and the accused No. 2 is convicted under section 366-A, 363, 376, 109 RPC."

07. It can be seen from a naked eye that the learned trial Court has, in the judgment cited above, touched all the pros and cons of the case. The learned trial Court has recorded the entire evidence in its breadth and length in the impugned judgment and the same does not require to be re-evaluated here. The judgment delivered by the learned trial Court is lucid, luminous and clear. It is based on the facts, the evidence and the law holding the field. It does not require any further elaboration by this Court for the reason that the same is magniloquent and eloquent. The learned trial Court has delved over the entire range of the facts and the circumstances of the case with lucidity and elegance. However, it may be added that the accused No.1 herein this case has been arraigned on a charge of assaulting the prosecutrix sexually, on the aid and assistance of the accused No.2 who took her to her house under the belief that she will be provided a job. The prosecutrix, it is said was plus fourteen years of age at the time of this incident. The prosecution version revolves primarily on the statement of the prosecutrix buttressed with the medical evidence.

08. In a case of rape, the onus is always on the prosecution to prove each ingredient of the offence it seeks to establish and such onus never shifts. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. The most important evidence in all such cases is that of the victim herself. In practice, a conviction of rape, almost Cr. Appeal No. 08/2014 Page 33 of 52 entirely, depends on the credibility of the statement of the prosecutrix so far as the essential ingredients are concerned, the other evidence being merely corroborative. Section 376 RPC requires two essentials (i) sexual intercourse by a man with a woman; and (ii) sexual intercourse must be under the circumstances falling under any of the six clauses of the Section.

09. The law is that Section 3 of the Evidence Act enables a Court to employ only the standards of a prudent man in judging what is to be deemed to be proved according to the law and Section 114 of the Evidence Act enables the Courts to presume only that which accords with the ordinary course of events and human nature and not what would be an aberration from such a course. The degree, to which proof must reach before a Court trying a criminal case will convict is, no doubt, that which a prudent man will employ in reaching a conclusion beyond reasonable doubt, whereas an accused need not prove his case to the same extent in order to succeed. But the standards employed in judging each version are those of a reasonable and prudent man. Such a man can only adopt what is natural to expect and what accords with common sense and ordinary experience, but not what is extra-ordinary and unexpected as a reliable test of credibility of witnesses. There is no uniform method of arriving at correct, or, at least satisfactory conclusions upon veracity of versions, placed before the Court, which can be applied to all cases. It may be possible to decide many cases by determining the main or crucial point on which the decision of the case, one way or the other, may turn. In other words, where many disputable points are involved, none of which is conclusive, a more elaborate and comprehensive treatment of the various points involved, in the whole case, may become necessary. Courts have, however, to attempt to separate the 'chaff from the grain' in every case. They cannot abandon this attempt on the ground that Cr. Appeal No. 08/2014 Page 34 of 52 the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out.

10. Courts, in search of the truth of a case, have to be aware of being misled by half-truths, or, individually defective pieces of evidence. Firstly, irrelevant and unconnected facts and circumstances should be examined. Secondly, the pattern of the case thus revealed, in the context of a whole sequence of proved facts, must be scrutinized to determine whether a natural or probably a credible course of events is discernible. Thirdly, the minutiae of evidence, including the established discrepancies, should be put in the crucible of the whole context of an alleged crime, or occurrence, and tested, particularly with reference to the proved circumstances, which generally provide a more reliable indication of truth than the faulty human testimony in the process of separating the 'grain from the chaff'. Fourthly, in arriving at an assessment of the credibility of an individual witness, regard must be had to the possible motives for either deliberate mendacity or subconscious motivations. Last, but not the least, the demeanour and bearing of the witness in Court, should be carefully noticed and the appellate Court should remember that a trial Court has had, in this respect, an advantage which it does not possess.

11. Looking at the instant case, from the perspective of what has been stated above, the sum and substance of the prosecution evidence requires to be reiterated here. The statement of the prosecutrix that she was subjected to rape will be detailed hereinafter in its entirely. PW-1, Sitara Begum, i.e. the mother of the prosecutrix, has stated that before a period of six to seven months from the date of her examination, her daughter, a student of 7th class, went to the Shrine of Peer Dastigir Sahib to offer prayers. She did not return. She searched for her, but could not locate her. Thereafter, on the 6th day, she was told by a small child that a lady, namely, Dilshada has confined her daughter in her house. She went Cr. Appeal No. 08/2014 Page 35 of 52 to the house of that lady. She enquired about her daughter from Dilshada, but she divulged that her daughter is not in her house. Thereafter, she went to the Police Station, Khanyar. She lodged an FIR, stating therein that her daughter has been kidnapped by the accused. The police went to the house of the accused and they recovered the prosecutrix there. In her cross-examination, she has stated that her husband died in the year 1993 and the custody of the prosecutrix was handed over to her by the police authorities.

Ghulam Qadir Bhat, has stated that the prosecutrix aged 14 years had been to the shrine of Peer Dastigeer Sahib. He lived in the house of the complainant as a tenant. The prosecutrix did not return home. Her mother got worried. She searched for her. She went to different places in her search. Thereafter, someone told her that a lady, who resides in their vicinity, runs a racket. He asked her to enquire about the whereabouts of her daughter from that lady. They went to the house of that lady. She did not allow any access to them. Then, they went to the Police Station and lodged a report. The police authorities recovered the prosecutrix from a room situated in the first floor of the house of the accused. At that moment, both the accused were present in the house. The accused had lured the prosecutrix under the pretext that they will get her employed in some Government department.

12. Smt. Rafia Subla, has narrated that on the 26th of May, 2003, she was posted at the Jawahar Lal Nehru Memorial (JLNM) Hospital, Rainawari. She examined the prosecutrix and after her examination, she issued a certificate to the effect that the age of the prosecutrix was about 13 years and she was sexually violated. The hymen of the girl was ruptured and she was subjected to sexual intercourse before a period of forty eight hours from the date of her examination. The statement of PW9-Dr. Khurshid Ahmad, is that he examined the accused No.1 and certified that he is potent and can perform the sexual act.

Cr. Appeal No. 08/2014 Page 36 of 52

13. PW6-Sh. Habibulla Salathi, has stated that the prosecutrix, who was recovered from the house of the accused, is not known to him. He has further stated that he does not know whether or not the prosecutrix was kidnapped by the accused for committing rape on her person. Sh. Mohammad Ismail, ASI, has stated in his statement that, in the month of May 2003, he was posted as ASI at Police Station Khanyar. The investigation of the case was entrusted to him. The family members of the prosecutrix informed him that the prosecutrix has been kidnapped by the accused. He, along with the family members of the prosecutrix, went to Khalifapora, Khanyar and the prosecutrix was recovered from the house of the accused. He was accompanied by the mother and the brother-in-law of the sister of the prosecutrix. In his cross-examination, he has stated that, besides collecting various documents, he obtained the certificate of the 'Date of Birth' of the prosecutrix from the Government School Zadibal, where she was studying at that moment and as per the 'Date of Birth' certificate, the prosecutrix was born on the 10th of November, 1988 and, on the basis of this certificate, she was a minor on the date of occurrence.

14. The prosecutrix has given a vivid image of the facts and circumstances under which she was ravished by the accused. She has unraveled the entire truth. The pith and core of her statement is that in the month of February, 2003, she had been to the Shrine of Peer Dastigir Sahib to offer prayers. She was a student of 8th class at that moment. In the Shrine, she came across accused No.2, namely, Dilshada. She got acquainted with her. The accused No.2 asked her to give her residential particulars. She also enquired from her whether she was pursuing any job. In reply, she told her that her father has passed away. Her family is living under the shackles of poverty. The accused No.2 told her that she is an influential lady and she will get her employed in some Government Department. On this, she asked her to meet her again in the Shrine of Peer Cr. Appeal No. 08/2014 Page 37 of 52 Dastigir Sahib. After some days, she (the Prosecutrix) went to the Shrine of Peer Dastigir Sahib, where she came across the accused No.2. The accused No.2 at about 7 p.m. asked her to accompany her. They boarded an Auto. The accused No.2 took her to her house. The accused No.1, namely, Bashir Ahmad Matoo, was there in the house. Dilshada, the accused No.2 told the prosecutrix that the accused No.1 will provide her some job (Note: the trial Court has recorded that, at this juncture, the witness started crying and stated that the accused raped her and ruined her life). She, the accused No.2 and the accused No.1 slept on the same bed. During the night, the accused raped her thrice against her will and wish. The accused detained her in the house for six days. During the rest of the days, the accused No.1 did not violate her sexually. However, during this period of stay in their house, the accused No.2 told her that the accused No.1 will arrange the marks certificate of 'Three Years Degree Course' for her, on the basis of which, she can seek employment. She has also stated that she was recovered by the police authorities and she was taken to the Hospital for examination, whereafter her custody was handed over to her parents.

15. The defence witnesses, namely Ghulam Qadir Bhat and Mohammad Yousuf Bhat, have stated that the accused are persons of repute and they have been falsely implicated in the case. Both of them have stated in their cross- examination that they do not know why and how the accused were arrested by the Police authorities.

16. Adverting to the evidence adduced by the prosecution to establish that the prosecutrix was plus 14 years of age at the moment she was raped by the accused, the 'Date of Birth' certificate of the prosecutrix issued by the authorities of the Government School Zadibal, where she was studying at that time, depicts that she was born on the 10th of November, 1988, meaning thereby Cr. Appeal No. 08/2014 Page 38 of 52 that the prosecutrix was plus 14 years of age at the time of incident that took place in February, 2003. The school certificate issued on the basis of admission register is relevant in evidence in terms of Section 35 of the Evidence Act and there are a catena of judgment to subsume this proposition of law.

17. Resort can, in this behalf, be had from the law laid down in the case of "State of Chattisgarh Vs. Lekhram", reported in "(2006) 5 SCC 736", where it has been held as under:

"A register maintained in a school is admissible in evidence to prove the date of birth of the person concerned in terms of section 35 of evidenced act. Such date of births are recorded in school register by the authorities in discharge of their public duty.

18. The same view has been repeated and reiterated in case titled "Sannaia Subba Rao & Ors Vs. State of A.P." reported in "2008 (3) Crimes 174 (SC)", where it has been held that the school certificate produced by the Headmaster of the school from where the subject was studying, being a legal document and having evidentiary value, has to be given due weightage.

19. On the analysis of the law down above, it has to be presumed that the prosecutrix was plus 14 years of age at the time of the commission of the crime by the accused. This fact is also corroborated by the medical expert in his testimony, who has put the age of the prosecutrix to be around 14 years on the date he examined her. On the face of the age of the accused, the argument, whether the rape was or was not consensual, pales into insignificance, although, the evidence on record speaks volumes that the prosecutrix was put in a magic spell by the accused No.2 under the alibi that she can manage a job for her and the hapless girl stricken by poverty, whose father had died before the incident, fell a victim to the deceit exerted and employed by the accused No.2, namely Dilshada. The accused No.1 ravished the prosecutrix, of the age of his Cr. Appeal No. 08/2014 Page 39 of 52 daughter, as the tentacles of an octopus does to its victim. The statement of the prosecutrix is sufficient to arrive at the conclusion that the accused No.1, in connivance with the accused No.2 (his wife), committed rape on a girl, aged approximately fourteen years. His culpability in the sexual assault on the prosecutrix is proved beyond any shadow of doubt. The statement of the prosecutrix is reliable and impeccable. There is no inherent improbability or defect in it. There seems to be no reason to discredit or suspect her. The prosecutrix or her family members do not nourish any grudge against the accused. They do not have scores to settle with the accused, so that it could be said and held that the accused have been implicated falsely in the case.

20. Ideally and logically, a witness is a person who knows, but is detached and has no particular interest or sympathy and feels personally unconcerned. As between two parties, persons, events, occurrences, controversies, quarrels, fights, the witness knows both sides of an issue without any personal axe-to- grind in being interested in one or the other. Life is deeper than either logic or law. One of the most inhuman acts indulged in is when the animal instincts in a human take possession of him and he sexually assaults an adolescent girl, caring little what bruises he causes her. The assault causes psychological, sexual and medical injuries to the victim with no attenuating factors to, in any way, lessen the criminal ferocity. Right from intention down to the actual act of crime, the intent is fully malicious, which must be met with a punishment equal in force to that intent. The conviction of the accused, in a case of rape, can be based on the sole testimony of the prosecutrix. Corroboration is a rule of prudence and not a rule of law. This is fortified by a catena of the judgments of the Apex Court and the High Courts of the country.

21. The judgment laid down in the case of "State of Rajasthan Vs. Biram Lal" reported in "2005 (2) Crimes 133 (SC)", supports this view and it has Cr. Appeal No. 08/2014 Page 40 of 52 been held therein that, if the Court is satisfied that the evidence of the prosecutrix is free from any blemish and is implicitly reliable, then, on the sole testimony of the prosecutrix, the conviction can be recorded.

22. A cue can also be had, in this behalf, from the law laid down in the in the case of "Lalliram & Anr Vs. State of M.P." reported in "2008 (4) Crimes 99 (SC)", wherein it has been held that injury is not a 'sine qua non' for deciding whether rape has been committed, but has to be decided on the factual matrix of each case. Where the allegation is of rape by many persons and several times, but no injury is noticed, then, that certainly is an important factor. Even then, if the prosecutrix's version is credible, then no corroboration is necessary. An incredible version, however, requires corroboration.

23. In yet another case bearing the title "State of Punjab Vs. Gurmit Singh & Ors" reported in "AIR 1996 Supreme Court 1393", it has been held that the testimony of the victim in cases of sexual offences 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 the 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 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 Cr. Appeal No. 08/2014 Page 41 of 52 even more reliable. Just as a witness, who has sustained some injury in the occurrence, who 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 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 the 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 the type of rigidity in the shape of rule of law is introduced through a new form of testimony, making justice a casualty. Courts cannot rely upon a fossil formula and insist upon corroboration, even if, taken as a whole, the case spoken by the victim of sex crime strikes the judicial mind as probable.

24. In case "State of H.P. Vs. Gian Chand", reported in "2001 (6) SCC 71, it has been observed that conviction for an offence of rape can be based upon the sole testimony of the prosecutrix corroborate by medical evidence and other circumstances, such as report of chemical examination, if same is found to be natural trustworthy and worth being relied upon. The Court further held if the evidence of the prosecutrix inspires confidence it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason court finds it difficult to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony, short of Cr. Appeal No. 08/2014 Page 42 of 52 corroboration required in case of an accomplice. The testimony of prosecutrix must be appreciated in the back ground of entire case and trial court must be alive to its responsibility and be sensitive while dealing with a case involving sexual molestation. In the backdrop of the above legal position, with which we are in respectful agreement the evidence of the prosecutrix needs to be analyzed and examined carefully. But, before we do that, we state, as has been repeatedly stated by this court, that a woman who is victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact, the evidence of the prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations.

25. In "State of Maharashtra Vs. Chandraprakash Kewalchand Jain", reported in "(1990) 1 SCC 550", it has been held that a woman who is victim of sexual assault is not an accomplice to the crime but is a victim of another person's lust and therefore her evidence need not be tested with same amount of suspicion as that of accomplice and therefore the rule of prudence that her evidence must be corroborated in material particulars has no application, at the most Court may look for some evidence which lends assurance........"

"........ 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 unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 18 and her evidence must receive the same weight as is attached to an injured in cases of physical Cr. Appeal No. 08/2014 Page 43 of 52 violence. The same degree of care and caution must attached 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 (b) to section 114 which requires it to look for corroboration. If for some reasons the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for the 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 an adult and 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 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."

26. In "State of Punjab Vs. Gurmit Singh & Ors, reported in "AIR 1996 SC, 1393, it has been observed that the Court overlooked 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 alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can 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. 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 in 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 Cr. Appeal No. 08/2014 Page 44 of 52 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 an otherwise reliable prosecution case. Seeking corroboration of her statement before relying upon the same as a rule, in such cases, amounts to adding insult to injury. 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. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involved sexual molestation. This Court has repeatedly laid down the guidelines as to how the evidence of the prosecutrix in the crime rape should be evaluated by the Court.

27. The observations made in the case of "Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat" reported in "AIR 1983 SC 853", deserve a special mention and have to be kept in mind invariably while dealing with a case of rape. These are reproduced below, verbatim:-

"In the Indian setting, refusal to act on 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 spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a Cr. Appeal No. 08/2014 Page 45 of 52 male dominated society. We must analyse 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 opinionated, eye in the light of probabilities without feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social 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 turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitude, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of the problems cannot therefore be identical........"

"........ Without the fear of making too wide statement, or of overstating the case, if 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 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 an incident which is likely to reflect on her chastity had ever occurred.

2. She would be conscious of the danger of being ostracized by the society or being looked down by 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 the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.

5. 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 overpowered by a feeling of shame Cr. Appeal No. 08/2014 Page 46 of 52 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 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 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 the risk of being disbelieved, acts as a deterrent."

28. Testing the instant case on the touchstone of the judicial instances quoted above, there appears to be no doubt in holding that a conviction can be based on the sole testimony of the prosecutrix. What weighs with the court is the quality and not the quantity of evidence. No invariable rule can be laid down as to how many witnesses are required to prove the guilt of the accused. The statement of the prosecutrix, herein this case, is trustworthy. It breeds confidence in the mind of a reasonable and prudent man. The prosecutrix had no malice, ill will, hatred, animosity or scores to settle with the accused or to take revenge from the accused by falsely implicating them in the case at the cost of her reputation. The mother of the prosecutrix has stated that her daughter was raped by the accused No.1. This, she has stated, was narrated to her by the prosecutrix herself. The law is that the statement of the ravished girl to the mother is legally admissible as evidence of conduct under section 8, Illustration (j) of the Evidence Act. And Section 157 of the Evidence Act provides that "the statement of the girl made at or about the time of the offence, is legally admissible as corroboration.

29. The medical opinion, in this case, is that the hymen of the prosecutrix was found to be ruptured. The medical jurisprudence enunciates that the hymen Cr. Appeal No. 08/2014 Page 47 of 52 usually ruptures in sexual intercourse if the penetration is beyond the opening of the hymen. In case of the girls of tender age, hymen is deeply rooted. Due cognizance of these facts has, therefore, to be taken. In the case at hand, the prosecutrix has categorically stated in her testimony that the accused ravished her chastity at least thrice during the first night of her stay in his house. She wept and wailed before the Court while narrating this gruesome incident. The statement of the prosecutrix supported by the medical expert confirms rape. Corroboration to the statement of the prosecutrix by the medical evidence which is not the rule of law but a rule of prudence proves penetration beyond the hymen. The statements of the prosecutrix and the medical expert are sufficient to come to the conclusion that she was ravished by the accused. Penetration of male organ completely, partially or slightly would be enough to constitute the offence of rape.

30. The argument of the learned counsel for the accused is that there is a delay in lodging the FIR. The argument is a specious argument. It is true that delay in lodging the FIR is fatal to the prosecution, however, this cannot hold true in the case of a rape. In such cases, delay in lodging the FIR can be due to a multiplicity of reasons. In "AIR 1996 SC 1393", titled "State of Punjab Vs. Gurmit Singh & Ors", it has been held that, in sexual offences, delay in the lodging of the FIR can be due to variety of reasons, particularly, the reluctance of the prosecutrix and 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. Even, if there is some delay in lodging FIR in respect of the offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter.

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31. In a case titled "Karnel Singh Vs. State of M.P.", reported in "AIR 1995 Supreme Court 2472", it has been held that the reluctance to go to the police is because of societal attitude towards the women who are victims of sexual assault, it casts doubt or shame on her and her family rather than comfort and sympathize with her. Therefore, delay in lodging FIR in rape cases does not necessarily indicate that her version is false.

32. In case titled "Pammu Sreenu Vs. State of A.P." reported in "2009 (3) Crimes 35 (SC)", the same view has been reiterated and it has been held that ordinarily the family of a victim would not intend to get a stigma attached to the victim. The delay in lodging the FIR in the case of this nature is a normal phenomenon.

33. Again, in a case titled "Sohan Singh & Anr Vs. State of Bihar"

reported in "2009 (4) Crimes 116 SC", in paragraph No. 14, it has been held that as far as delay in lodging the FIR is concerned, we are also satisfied that it cannot be termed to be inordinately delayed. Even otherwise, in our considered opinion, too, it cannot be said that there has been inordinate or unexplained delay in lodging the FIR. When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodged FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodged the FIR.

34. In spite of the rapid process of urbanization going on in the country, there still remains a more than half the population of the country, which is rural in habitat and rustic in culture. The culture of theirs consists of old traditions, old sentiments, techniques, institutions like family marriage, religion, customs, norms, standards, mores, social taboos, practices permitted and prohibited, Cr. Appeal No. 08/2014 Page 49 of 52 relationships of blood, joint family system and a plethora of other overt and covert factors of social behaviour. One of the customs, originating in ancient history of the country, is to suppress even to the extent of breathing not a word to any other person in the matter of pertaining to a crime against girls and women, particularly sexual assaults or molestations or rapes.

35. It takes a long time for a family to decide whether or not to report such a matter to the concerned authorities. The instant case is one such case. In it a very unfortunate and sad event of an adult male sexually raping a fourteen years old girl has taken place. The time gap between the occurrence of the crime and reporting the crime is approximately six days. But the Judges, in such cases, cannot take shelter behind the legalisms or eristic disputations. They must exercise their own innate sense of Justice in such cases, particularly in rustic areas of Arcadian social life. Delay in lodging the FIR in such cases can be understood and it cannot be held to be fatal to the prosecution. Holding so will be adding insult to the injury.

36. The tragedy of the rape must be fresh in the mind of the prosecutrix, her parents and her uncle. However, they should be the last persons to fabricate the case against the accused. Being relations, they cannot substitute a person in place of the real culprit and, that too, in a heinous offence of rape. Very rarely will a girl in India make false allegations of sexual assault. A girl, in the tradition bound society of India, would be extremely reluctant even to admit any incident which reflects on her chastity. She would be conscious of the danger to which she will be exposed. She would be conscious of being lowered down in the estimation of her own family members, relatives, friends, neighbours and others. She will have to face the whole world. It is, therefore, always desirable to test the evidence of the witnesses on the anvil of objective circumstances of the case. The instant case must have shattered the prosecutrix. The incident Cr. Appeal No. 08/2014 Page 50 of 52 might have shaken her life and soul. So, to say that the occurrence has been manipulated by the prosecutrix, will be to rub salt into the wounds of the victim.

37. The behavioral pattern and perceptive habits of the witnesses have to be judged as such. Too sophisticated approaches about human conduct cannot be applied to those given to the lethargic ways of our villages. To hope for rigour, in the proof of a correct version, is almost to hope for the moon.

38. The contention of the learned counsel for the accused that the accused could not have committed the offence of rape in the way it has been imputed to him, can be answered by stating that there is no end to human degradation, where it is a question of sexual intercourse. There are cases where fathers and uncles have sexually assaulted their daughters and nieces, male teachers doing the same to their girl students. This is a tale of woe covered by thin veneer of the so-called 'modern fast civilization'. Those, who are behind the scenes, see all the "course pulleys and dirty ropes", which the ignorant audiences do not know.

39. The upshot of the above discussion is that there appears to be no error in the judgment of the learned trial Court. The learned trial Court has touched all the aspects of the case extensively- be that the effect of the delayed FIR in the case, the effect of inconsistencies in the statements of the witnesses which have been rightly brushed aside, the argument that the appellant No.1 could not have indulged in the horrifying crime of rape in presence of his wife, the age of the prosecutrix on the date of the occurrence, the recovery of the prosecutrix from the house of the accused, the contention of the defense that the prosecution has examined interested and partisan witnesses only in the case and, to crown it all, whether or not it was necessary to seek the corroboration of the statement of the prosecutrix in the facts and circumstances of the instant case, where the medical evidence confirms the rape. Viewed thus, the judgment of conviction and Cr. Appeal No. 08/2014 Page 51 of 52 sentence of the learned trial Court does not call for any interference. It has to be maintained and is, accordingly, upheld, as a consequence of which, the appeal, alongwith all connected MP(s), is dismissed. Interim directions, if any, in force as on date, shall stand vacated.

40. Registry to send down the trial Court record(s) to the Court(s) below along with a copy of this judgement.

(M. K. Hanjura) Judge SRINAGAR January 30th, 2018 "TAHIR"

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