Himachal Pradesh High Court
State Of Himachal Pradesh vs Arjun Singh & Another on 28 April, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No 197 of 2010.
Reserved On 19.04.2016.
Decided on:28.04.2016.
.
State of Himachal Pradesh.
....Petitioner.
Versus
Arjun Singh & another.
... Respondents.
of
................................................................................................
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner. : Mr. R.S. Verma, Addl. Advocate
General
with Mr. VikramThakur, Dy. Advocate
General
For respondent No.1. : Mr. Dalip K. Sharma, Advocate.
For respondent No.2. : Ms. Seema Guleria, Advocate.
Ajay Mohan Goel, J.
This appeal has been filed by the State against the judgment of the learned Sessions Judge, Shimla in Sessions Trial No. 18-S/7 of 2009, dated 25.2.2010, vide which judgment, the learned trial court has acquitted the accused by holding that both the accused are entitled to get the benefit of doubt, as the 1 Whether reporters of the local papers may be allowed to see the judgment? yes.
::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 2prosecution has failed to prove its case beyond reasonable doubt.
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2. The case of the prosecution was that the prosecutrix was a student of 10th Class and she was pursuing her studies in Govt. Sr. Secondary School, Shakrah in the year 2009. She was staying with her Bua, namely, Champa Devi for some time.
of On 11.5.2009 after the closure of the school, the prosecutrix left for her house which was at village Paroi. She remained with her rt parents till the morning of 14.5.2009. On the said date, at about 8/8:30 a.m, her mother PW7, Meera Devi, got the prosecutrix seated in a bus enroute from Paroi to Shimla. As the bus was overcrowded, the prosecutrix alighted from the bus at Galog from there she boarded the bus heading towards Shimla and got down at 'Solah Meel'. At 'Solah Meel', accused No.1 Arjun Singh (hereinafter referred as A-1) was sitting in a vehicle. He asked the prosecutrix to sit in the said vehicle and when she refused to do so, he got down and made her sit in the vehicle by catching hold of her arm. The vehicle was being driven by accused No.2-Dharmender Kumar (hereinafter referred to A2).
A1 asked A2 to stop the vehicle one kilometre behind Ganahatti. Thereafter, he got down from the vehicle and also ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 3 made the prosecutrix to get down from the vehicle by catching hold of her arm. He instructed A2 to go back. A1 then took her .
down the road to the jungle and inside the jungle he committed forcible sexual intercourse with her. The prosecutrix was brought back to the road by A1 at around 4:00 p.m. He then called the same vehicle and after making the prosecutrix sit of therein, he made her de-board the vehicle at a distance of two kilometres before her house. A1 threatened the prosecutrix with rt dire consequences, if she disclosed the episode to anyone.
Hence, the prosecutrix did not disclose the said episode to anybody due to fear. The incident was narrated by her to her mother on 16.5.2009. Thereafter, her mother, father and one Kaushlaya (Massi) visited Police Station, Arki and filed complaint Ext. PW4/A. On the basis of the said complaint, the prosecutrix was sent for medical examination to Civil Hospital, Arki. As lady doctor was not found there, the prosecutrix was got medically examined by PW3 Dr. Anita Negi after completing all the formalities at Deen Dayal Upadhyay Hospital, Shimla.
Ext. PW3/B is the medico legal certificate issued by Dr. Anita Devi (PW3). The prosecutrix was referred for age determination test and Dr. Neeti Aggarwal, PW2, conducted the same and her ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 4 report is Ext.PW2/C. The birth certificate of the prosecutrix Ext.PW6/B was taken into possession. Accused was medically .
examined by PW1 Dr. Dinesh Bishat and vehicle involved in the incident was taken into possession and the statement of the witnesses was recorded.
3. The prosecution in all examined 13 witnesses to of prove its case. PW1 Dr. Dinesh Bishat conducted the medical examination of accused Arjun Singh. PW2 Dr. Neeti Aggarwal rt conducted the age determination test of the prosecutrix. PW3 Dr. Anita Negi conducted the medical examination of the prosecutrix. PW4 is the prosecutrix.
4. PW5 Chander Prabha was the officiating principal in Govt. Sr. Secondary School, Shakrah, Distt. Shimla who produced on record the attendance register of 14.5.2009, as per which the prosecutrix was absent from school on the relevant date.
5. PW6 Suresh Chand is the Panchayat Sahayak of Gram Panchayat, Plania who had supplied the pariwar register which contained the date of birth of the prosecutrix and as per which the date of birth of the prosecutrix was 26.4.1993, which ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 5 is evident from Ext.PW6/C. PW7 Meera Devi is the mother of the prosecutrix.
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6. PW8 SI Mathura Dass had prepared the police report under Section 173 of the Code of Criminal Procedure and presented the challan in the Court.
7. PW9 SI Raj Kumar had prepared the first of information report Ext.PW9/B. PW10 HC Rajinder Singh had lodged rapat Ext.PW9/A on the basis of application moved by rt PW4. He had sent the prosecutrix for medical examination at Civil Hospital, Arki. PW11 LC Archana had deposited the case property with FSL, Junga on 21.5.2009.
8. PW12 Nand Lal was posted as MHC in police station Boileauganj, Shimla at the relevant time, who has stated that so far the case property remained with him, the same remained untampered and intact. PW13 ASI Harjit Singh is the investigating officer.
9. Before proceeding any further, it is pertinent to mention that the prosecutrix and A1 were related to each other.
Sh. Deep Ram is the father of A1. Sh. Karam Chand is the father of Jeet Ram who is the father of the prosecutrix. Sh.
Deep Ram and Sh. Karam Chand are real brothers and this is ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 6 evident from the testimony of PW7, Smt. Meera Devi, who is the mother of the prosecutrix.
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10. In her statement, PW7, Meera Devi, has disclosed that prosecutrix was earlier studying in Govt. Sr. Secondary School, Dhami and she was withdrawn from the said school from 9th class onwards because accused Arjun Singh was of getting letters written from her under pressure and was also writing letters to her. Therefore, she was admitted in 9th class in rt Government High School, Shakrah. She further deposed that on the morning of 14.5.2009 at about 8/8:30 a.m. she got the prosecutrix seated in an HRTC bus which was enroute from Paroi to Shimla. The prosecutrix had boarded the bus at Paroi for her school at Shakrah. She further deposed that the prosecutrix returned back in the evening on the same date at around 5:00 p.m and that she was not feeling well. On this, PW7 gave her certain medicines. Next day as well as on 16.5.2009 she asked her daughter to go to the school but prosecutrix refused on the ground that she was not feeling well.
In the evening of 16.5.2009, the prosecutrix disclosed to her that on 14.5.2009, A1 had met her at 'Solah Meel' and had made her sit in a white van which was being driven by A2 on ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 7 the pretext of dropping her at the school. It was further disclosed by the prosecutrix that about one kilometre before .
Ghanahati, she was forced to get down from the van and A1 took her to a jungle where he committed forcible sexual intercourse with her. She was forced to stay at the spot of occurrence upto the closing time of the school and then brought of back to the same spot from where she was made to get down from the van. At the spot she was made to sit in the van which rt was driven by A2 and she was made to de-board the same to two kilometres behind their house. She further deposed that her husband is a labourer. On 17.5.2009, her sisters Kaushalya and Savitri and her brother came to her house. She and her husband called accused Arjun Singh to their house and asked him about the occurrence of the incident. On this, he started beating her sister Savitri. Thereafter, they went to Police Station, Arki. In her cross examination she has, inter alia, stated that it is correct that on 14.5.2009 she got the prosecutrix sit in HRTC bus from Paroi. She further states that prosecutrix had disclosed to her that she boarded down from the bus at a place named Galog. She has further mentioned in her cross examination that her daughter was not known to A2 at all.
::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 811. Before dealing with the statement of the prosecutrix, at this stage, it is relevant to mention that Ext.PW13/C is the .
copy of the mark sheet of the Middle Standard Examination of the prosecutrix issued by HP Board of School Education in which the date of birth of the prosecutrix is mentioned as 26.4.1993. Further Ext. DA is the copy of a letter written by the of prosecutrix to A1 in which she refers to A1 "my dear husband". In this letter, it is further written by the prosecutrix "I rt love you Arjun ji". The above facts at least are a pointer to the factum that besides being related to each other there was some kind of intimacy between the prosecutrix and A1. This is in fact further strengthened by the statement of the mother of the prosecutrix, as has been mentioned above.
12. It is in this background that now we will be scrutinizing the statement of the prosecutrix. In her statement, the prosecutrix states that on 14.5.2009 her mother got her seated in the bus enroute from Paroi to Shimla at about 8/8:30 a.m. She was to get down from the said bus at a place named 'Solah Meel'. However, as the bus was overcrowded she got ticket upto Galog and from Galog she boarded another bus and got down at 'Solah Meel'. From 'Solah Meel', she had to go to ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 9 her school at Shakraha on foot. She further states that when she got down from the bus at 'Solah Meel', A1, who met her .
there, and who was sitting in Maruti van No. HP 51-2895 asked her to sit in the van and when she refused, A1 caught hold of her from the arm and made her sit in the Maruti van. She knew A1 as his father Deep Ram was the real uncle of her father Jeet of Ram. She further states that she later came to know that Dharmender was the driver of the said Maruti van. The said van rt was brought to a place about one kilometre behind Ghanahati where A1 asked A2 to stop the van. A1 got down from the van and sent A2 with the van back. She was made to deboard the van by A1. She further states that there is a path leading to Shakrah from nearby Ghanahati, that is the place where she was made to get down from the van by accused A1. She further states in the same breath that when she was made to get down from the van by accused Arjun Singh, there was a jungle from where path also leads to Government High School, Shakrah. She has further stated that A2 is a shopkeeper at Dhami and she knows A2 since the time she used to study in class 7. A1 caught hold of her arm and took her down the jungle to an isolated place where he committed sexual ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 10 intercourse with her at around 10-11:00 a.m. Thereafter, A1 kept her confined forcibly at the spot for a long time and brought .
her back to the road at around 4:00 p.m. where A2 was present with the same van. A1 then made her sit in the van and she was made to get down from the van about 2 kilometers behind her village Paroi. A1 threatened to kill her in case she disclosed the of episode to anyone. As she was not physically well, she did not disclose the episode to anyone till 16.9.2009. When on the rt asking of her mother, she disclosed the incident to her then on 17.5.2009 her relatives were called. A1 was also called who after reaching there started giving beating to her Massi Savitri.
Thereafter, on 17.9.2009 along with her parents and relatives she visited Police Station, Arki. In her cross examination, the prosecutrix has stated that she boarded the bus from Galog.
She took ticket upto 'Solah Meel'. She has admitted that there is a path which leads to Shakrah from Ghandal. She has further admitted the fact that the bus which she boarded from Galog was the same which was coming to Shimla via Gandhal. She further admits that there are three roads leading from 'Solah Meel' i.e. one to Dhani; second to Bilaspur-Mandi and third to Shimla. She has also admitted that many persons come to ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 11 'Solah Meel' to board buses for different destinations. She has further stated in her cross-examination that when A1 made her .
sit in the Maruti van some persons were standing at 'Solah Meel' to board the buses. She further states that she did not object A1 when he made her sit in the van by holding her arm as he was her uncle and he would have had left her at of appropriate place. She further states in her cross examination that she did not object while getting down from the Maruti van rt before Ghanahati nor she raise any hue and cry because she was disclosed by A1 that there was a path leading from that place to her school. She further states that she tried to rescue herself but the accused overpowered her. She further states that the accused committed forcible intercourse at about 11:00 a.m and thereafter forcibly confined her at that place upto 4:00 p.m. The accused forced her to sit there during the said time of six hours and she did raise hue and cry but no one heard. She has also stated that the accused had taken her down a distance of 100 metres from the road. She has admitted writing letter Ext.
DA to accused A1 but has qualified her statement by saying that this letter was written by her under the threat and pressure of A1. She further states that this letter might have been written ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 12 by her about one or two months prior to the alleged incident.
She has further self stated that she never intended to marry A1.
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Dr. Anita Negi, PW3, has conducted the medical examination of the prosecutrix and in her cross examination she has mentioned that as per the medical examination conducted by her, she could not definitely opine whether sexual intercourse have of been committed with the victim or not.
13. The Hon'ble Supreme Court has held in State of rt Punjab Vs. Gurmit Singh and others, (1996) 2 Supreme Court Cases 384 as under:-
"x x x x x x x x x x 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 over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may 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 ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 13 corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to .
be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is of a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is rt introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990 (1) SCC
550) Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words: (SCC p.
559, para 16) "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 14 is hesitant to place implicit reliance on the testimony of the prosecurtix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence .
required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a of strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. "
14. The Hon'ble Supreme Court in Radhu Vs. State of rt Madhya Pradesh, (2007) 12 Supreme Court Cases 57 has held as under:-
" 6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix.
The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 15 liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
15. In Narender Kumar Vs. State (NCT of Delhi), .
(2012) 7 Supreme Court Cases 171, the Hon'ble Supreme Court has held as under:
"20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the of solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a rt guidance of prudence under 1 Page 12 the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.
(Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P and Vishnu v. State of Maharashtra).
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra.
23. In Jai Krishna Mandal & Anr. v. State of Jharkhand, this Court while dealing with the issue held: (SCC p. 535, para 4) ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 16 "4.......the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
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16. In Munna Vs. State of Madhya Pradesh, (2014) 10 Supreme Court Cases 254, the Hon'ble Supreme Court has been pleased to held as under:-
"7. We are conscious that testimony of the prosecutrix of is almost at par with an injured witness and can be acted upon without corroboration as held in various decisions of this Court. Reference may be made to some of the leading judgments.
8. rt In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, this Court held as under (SCC pp. 224-26, paras 9-
10) "9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed 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 1 (1983) 3 SCC 217 Page 5 5 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, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical.::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 17
10. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault ........ 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 any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of 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 rt 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 embarassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members 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 Page 6 6 stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
9. In State of Maharashtra vs. Chandraprakash Kewalchand Jain, this Court held as under : (SCC pp. 558- 60, paras 15-17) ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 18 "15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in .
material particulars before the court bases a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the prosecutrix ? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all of facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to rt 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 shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not 2 (1990) 1 SCC 550 Page 7 7 illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration
(b).
16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.
::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 19What 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 reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on of the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of rt 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. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
"It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 20 equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a .
crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape.
of Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely rt direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
10. Similar observations were made in State of Punjab vs. Gurmit Singh, as under : (SCC pp. 395-96, para 8) "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. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 21 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 on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is of 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 3 (1996) 2 SCC 384 Page 10 10 credence in every case of rt rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
(emphasis in original)
11. Thus, while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused."
::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 2217. The Hon'ble Supreme Court of India in Manoharlal Vs. State of Madhya Pradesh, (2014) 15 Supreme Court .
Cases 587 has held as under;-
"8. Though as a matter of law the sole testimony of the prosecutrix can sufficiently be relied upon to bring home the case against the accused, in the instant case we find her version to be improbable and difficult to accept on its face value. The law on the point is very succinctly stated in of Narender Kumar v. State (NCT of Delhi), to which one of us (Dipak Misra, J). was a party, in following terms: (SCC p. 178, paras 29 and 21) "20. It is a settled legal proposition that once the statement of rt the prosecutrix inspires confidence 4 Page 5 and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial which may lend assurance to her testimony."
(emphasis in original)
9. Having found it difficult to accept her testimony on its face value, we searched for support from other material but find complete lack of corroboration on material particulars. First, the medical examination of the victim did not result in any definite opinion that she was subjected to rape. Secondly, Riyaz who was like a brother to the victim and thus a close confidant, has not supported the case of the prosecution and ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 23 has completely denied having met her when she allegedly narrated the incident to him. Thirdly the person who was 5 Page 6 suffering from fever and to whose house she was first taken by the appellant was not examined at all. Fourthly, the policeman who the victim met during the night was also .
not examined. Fifthly, neither the brother nor any of the parents of the victim were examined to corroborate the version that she had come from the village of her brother and alighted around 10:00 P.M. at Bajna bus stand. Lastly, the sequence of events as narrated would show that she had allegedly accompanied the appellant to various places. In the circumstances, we find extreme difficulty in relying upon the version of the victim alone to bring home the charge against the appellant. We are inclined to give benefit of doubt to the of appellant."
18. It is also relevant to refer to the judgment of the rt Hon'ble Supreme Court in Tilak Raj Vs. State of Himachal Pradesh, AIR 2016 Supreme Court 406, in which the Hon'ble Supreme Court has held as under:-
"19. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.
23. From the aforesaid, it is clear that the evidence of the prosecution is neither believable nor reliable to bring home the charges leveled against the appellant. We are of the view that the impugned judgment and order passed by the High Court is not based on a careful re-appraisal of the evidence on record by the High Court and there is no material evidence on record to show that the appellant is guilty of the charged offences i.e., offence of cheating punishable under ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 24 Section 417 of IPC and offence of criminal intimidation punishable under Section 506 part I of IPC. "
19. In the present case whereas the story set up by the .
prosecutrix is that after her mother made her board the bus at Paroi and she alighted the bus at Galog because of the reason that the same was overcrowded, this testimony of the of prosecutrix is in total contradiction to her mother. According to her mother, she not only made her daughter board the bus at Paroi on 14.5.2009 at about 8/8:30 a.m. in the morning but she rt got her seated in the bus at Paroi. The prosecutrix has further admitted in her statement that the place from where she was allegedly forced to sit in the maruti van by A1 i.e. 'Solah Meel' is not a deserted place and lot of people are present there to board buses for different destinations. She has also stated that even at the relevant time when she was allegedly alighted from the van by A1 there were people present at 'Solah Meel' to board buses and that she did not raise any hue and cry. It has been further stated by her that when she was made to board the van by A1, she did not raise any hue and cry. This has been explained by her by stating that because A1 was known to her, therefore, she believed that he will take her to her destination.::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 25
Further it is also admitted by her that when she was taken to the jungle by A1 at that relevant time also she did not raise any hue .
and cry. It is also admitted by her that the path from jungle on which she was taken by A1 also leads to her school. There is no cogent explanation as to why she did not intimate her family members of the alleged incident on the date of the occurrence.
of What transpired between 14.5.2009 and 16.5.2009 so as to compel the prosecutrix to disclose the occurrence of the alleged rt event to her mother on the evening of 16.5.2009 is also not clear. On the other hand it is apparent that the prosecutrix and A1 knew each other and they were having relationship with each other. It is further apparent from the material on record that the family of the prosecutrix did not approve of this relationship. Ext. DA is the letter written by the prosecutrix to A1 in which she has addressed A1 "my dear husband".
However, in her cross examination she has stated that she has no intent to marry A1. On one hand the mother of the prosecutrix has stated that A2 was not known to the prosecutrix whereas prosecutrix has categorically mentioned that she knew A2 since she was studying in 7th standard. One further fails to understand as to why the prosecution made no attempt to ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 26 associate any independent witnesses pertaining to the alleged incidence of the prosecutrix being forced into the vehicle at .
'Solah Meel' or of the factum of her being forced out of the vehicle at a place one kilometre before Ghanahati and her being taken to the jungle by A1 as alleged. Further in our considered view, the prosecution has miserably failed to prove of any case even against accused A2. Further as already mentioned above, PW3, Dr. Anita Negi, in her statement has rt deposed that as per the medical examination conducted by her she could not definitely opined whether sexual intercourse have been committed with the victim or not. All these aspects of the matter have been minutely dealt with by the learned trial court.
20. We have also perused the record of the case as well as the judgment passed by the learned trial court in detail. In our opinion also, the testimony of the prosecutrix does not inspires confidence. There are too many discrepancies and material contradictions germane to the genesis of the prosecution case in her statement as compared to the statement of her mother. All these aspects of the matter have been dealt with at length by the learned trial court and the ::: Downloaded on - 15/04/2017 20:12:27 :::HCHP 27 findings arrived at in this regard by the learned trial court are approved by us, keeping in view the fact that the accused have .
got the benefit of being acquitted by the learned trial court below and the State has not been able to persuade us to differ from the view that has been taken by the learned trial court in the case, we dismiss the appeal by holding that there is no of infirmity with the judgment passed by the learned trial court.
Bail bonds, if any, furnished by the accused are discharged.
rt (Sanjay Karol)
Judge
(Ajay Mohan Goel)
Judge
28th April, 2016.
(guleria)
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