Himachal Pradesh High Court
Pankaj vs State Of Himachal Pradesh on 12 July, 2019
Bench: Sureshwar Thakur, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos. 251, 257 and 258 of 2018 .
Reserved on: 27.6.2018 Decided on: 12.07.2019
1. Cr. Appeal No.251 of 2018 Pankaj ......Appellant.
Versus
State of Himachal Pradesh ....Respondent.
2. Cr. Appeal No.257 of 2018
Shiv Singh alias Lambu
r to ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
3. Cr. Appeal No.258 of 2018
Rakesh Kumar ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
................................................................................................ Coram The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 Yes For the Appellant(s): Ms. Sheetal Vyas and Ms. Manika Mittal Advocates.
For the respondent-State: Mr. Hemant Vaid and Mr. Desh Raj Thakur, Additional Advocate Generals with Mr. Yudhveer Singh 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 2Thakur and Mr. Vikrant Chandel, Deputy Advocate Generals.
.
Jyotsna Rewal Dua, (J) I have had the advantage of going through a very well written judgment passed by my Learned elder brother. However, I am unable to reconcile myself with the observations and the final verdict therein.
Therefore, I hereby give my separate judgment in these appeals.
2. Entire factual matrix and the process leading to the trial and ultimate conviction of the appellants under Sections 452, 365 and 376(D) read with Section 34 of the IPC and sentencing them to undergo rigorous imprisonment for a period of two (2) years, three (3) years, twenty (20) years, respectively, have already been explained in the afore judgment. I am proceeding, thereafter.
3. Accused Pankaj (Appellant in Criminal Appeal No. 251 of 2018) .
3(a). Statements of important witnesses and analysis thereof is as under:-
3(a)(i) Prosecutrix as PW-1- has stated that on 24.03.2015 evening, Lambu alias Shiv Singh, Rakesh Kumar and Pankaj came to her one room quarter, where she resided with her husband and three years old son. All three of them consumed liquor alongwith her husband, whereafter the trio left the place. She further stated that around 10.00 pm, when she and her other two family members were sleeping with door bolted from inside, 2/3 persons entered her room, gagged her mouth and lifted her outside her quarter. Further, that it was dark and she could not see the ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 3 faces of the accused persons, who lifted her outside the quarter. Her testimony, is thus, to the effect that 2/3 un-identified persons raped her.
3(a)(ii). It will be appropriate to reproduce relevant para of her .
statement in examination-in-chief recorded in trial regarding the identity of the accused:-
"On 24.3.2015 evening accused present in the court namely Lambu, Rakesh and Pankaj came to our quarter and consumed liquor with my husband and thereafter all accused persons left our house. At 10 pm we were sleeping in the quarter when 2/3 persons entered our quarter and gagged my mouth and lifted me outside the quarter. It was dark and I could not see the faces of those 2/3 persons. They took me in a room behind our quarter and committed sexual intercourse with me and thereafter those 2/3 persons left that room."
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"I do not remember anything else. I can not recognize the persons nor I know their names who had committed sexual intercourse with me."
3(a)(iii). At this stage, it is to be noticed that prosecutrix had recorded her statement Ex.PW1/D under Section 164 Cr.PC before learned JMIC, Indora District Kangra at Dharamshala (HP). In this statement recorded under Section 164 Cr.P.C on 26.03.2015, she named Shiv alias Lambu, Rakesh and Pankaj, who had allegedly committed sexual intercourse with her against her wish at around 12.00 pm on 24.03.2015. Learned JMIC, District Kangra at Dharamshala (HP), while appearing as PW/20, has stated that the contents of the statement of Ex.PW1/D were explained and read over to the prosecutrix, which she admitted as correct and accordingly appended her thumb impression on it.
3(a)(iv). Since, while appearing as PW1, the prosecutrix had resiled from her statement recorded under Section 164 Cr.PC and had feigned ignorance as to who assaulted her sexually, therefore, she was cross-
::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 4examined by learned APP on this aspect. During cross-examination, the prosecutrix did not deny having made such statement before the learned JMIC naming all the three accused persons as perpetrators of the offence, .
but she also explained that such disclosure of the names of the three accused persons was only on the basis of her assumptions at that point of time, as these three accused persons had consumed liquor with her husband in the evening of 24.03.2015. Relevant portion of her statement is apt to be reproduced hereunder:-
"It is correct that I disclosed the name of Rakesh, Pankaj and Lamboo present in the court who had committed sexual intercourse with me. Self stated that I disclosed their names on the basis of suspicion as they had consumed liquor with my husband prior to the incident."
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"It is incorrect that my mouth was gagged by accused Lambu present in the court when I tried to cry for help. It is incorrect that firstly Pankaj, secondly Rakesh and finally Lamboo has committed sexual intercourse with me."
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"It is correct that police had produced me before Ld. JMIC Indora and got recorded my statement Ex.PW1/D. It is also bears my thumb impression which is in red circle. It is correct that I disclosed to JMIC that accused namely Lambu Rakesh and Pankaj had committed sexual intercourse with me.
However, again stated they did not commit sexual intercourse with me."
3(a)(v). The prosecutrix was also cross-examined by the learned defence counsel, during which she stated that she had bolted the door from inside her room before going to sleep. She was sleeping on the bed alongwith her son and husband, when her mouth was gagged. She made efforts to raise the alarm, but her husband did not wake up. She further testified that she had not disclosed the names of accused persons as the persons who had committed sexual intercourse with her and further that she had disclosed the names of the accused persons as those who ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 5 consumed liquor with her husband in their quarter and that is how their names were mentioned in her statements Ex.PW1/A and Ex.PW1/D. Relevant part of her statement during cross-examination, in this regard is .
as under:-
"It is correct that I bolted the door from inside before I went to sleep. It is correct that my quarter is comprising of only one room which is meant for sleeping, cooking etc. It is correct that the door of my quarter was not broken. It is correct that I was sleeping on the bed alongwith my son and husband. It is correct that when my mouth was gagged I made efforts to raise alarm. It is correct that my husband did not wake up. It is correct that the accused persons were frequent visitor to my quarter with my husband and due to this reasons I personally know their names. I am illiterate."
"It is correct that when I lodged complaint I was accompanied by my husband and Saroz, chowkidar of crusher. I did not disclose the names of accused persons as to the persons who had committed sexual intercourse with me. I only disclosed their names as to the persons who consumed liquor with my husband in our quarter. It is correct that police did not read over my statement Ex.PW1/A to me. Police had mentioned the name of accused persons at their own."
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"It is correct that I made statement before the JMIC, as it was explained to me by the police."
3(b)(i). Chandesher (husband of prosecutrix) as PW2:-
PW-2 has taken the stand similar to the one taken by his wife as PW-1. He admitted consuming liquor with accused persons, at around 5/6.00 pm on 24.03.2015, before going to sleep after the accused persons left. He further states that at around 2.00 am, in the midnight his wife woke him up and told him that 2/3 persons came inside the room, lifted her outside and committed sexual intercourse with her. He denies the disclosure of names of the accused persons by his wife. His statement, in examination-in-chief, in this regard, is reproduced hereinbelow:-
"I do not remember the exact date and time, however, the year was 2015. Pankaj, Lamboo and Jugga had come to my quarter ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 6 and we consumed liquor at 5/6 pm and thereafter they left my quarter. I was drunk so I went to sleep. At about 2 am in the midnight my wife woke me up and told me that 2/3 persons came inside the room and lifted nearby quarter situated behind our quarter and committed sexual intercourse with her."
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"Neither my wife disclose the names of the persons who committed sexual intercourse nor she identified them as it was dark."
3(b)(ii). The witness (PW-2) was declared hostile and therefore was cross-examined by the State. In cross-examination, he maintained his stand taken in examination-in-chief. In fact, on a suggestion by the State he admitted that his wife was nervous, when she came to the quarter at around 2.30 am, her hair were disorderly and her lips were swollen.
Relevant para of his statement in cross-examination is reproduced hereinbelow:-
"It is correct I disclosed to the police that at 2.30 am midnight when my wife came to the quarter her hairs were not in order and lips were swollen. It is correct that she was little bit nervous."
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"It is incorrect that my wife further disclosed me that she found three persons lifted her and one of them she recognized as Lambu who gagged her mouth. It is incorrect that my wife further told me that Lambu, Pankaj and Rakesh have committed sexual intercourse with her inside the quarter."
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"It is incorrect that first Pankaj, secondly Rakesh and finally Lamboo has committed sexual intercourse with my wife."
3(b)(iii) Cross-examination of PW2 by the learned defence counsel is hereunder:-
"It is correct that my wife disclosed the names of accused as to the persons who had consumed liquor with me and not as to the persons who committed sexual intercourse with her. It is correct that accused had apprehended due to suspicion."::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 7
3(c) Anil Saini PW3 stated:-
"No identification was given in my presence."
.
He stuck to his stand in cross-examination, as well.
3(d). Saroz Kumar, PW12:- He is first person to whom the husband of the prosecutrix had allegedly narrated the incident. PW-12 also denies that either prosecutrix or her husband ever disclosed to him that it was the accused persons who raped the prosecutrix. His statement is reproduced hereinafter:-
"It is incorrect that Chandresher disclosed to me that the accused present in the court took his wife from the house towards adjoining room and raped her. It is incorrect that prosecutrix was also accompanying her husband Chandresher."
3(e). Injuries on prosecutrix and accused.
3(e)(i). Statement of Dr. Shalini Dhiman, PW6:- PW6
examined the prosecutrix on 25.03.2015 at about 2.50 pm and issued MLC Ex.PW6/B. In respect of injuries on prosecutrix, her statement is as under:-
"Small multiple abrasions present above lips, below chin and over the neck. Lymph and blood dries up leaving a bright scab. Well heal scar of tubectomy present over lower abdomen.
Examination of Genitalia:-
She is clean shaved, vulva normal. No injury marks present over external genitalia. Hymen torn multiple side along circumference old heal tags present bleeding P/V is present as she is menstruating. vaginal swabs are taken and for slides smears prepared from them. Blood sample of (prosecutrix) taken."
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"Injuries as mentioned above are simple in nature. Probable duration 12 to 24 hours."
3(e)(ii). During cross-examination by the defence counsel, PW-6, admitted that the abrasions found over prosecutrix and as mentioned ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 8 in MLC could be the result of beating. She also stated that prosecutrix did not disclose names of any culprit. Her statement in this regard is hereunder:-
.
"It is incorrect that the alleged h/o occurrence was disclosed to me by the police. It is correct that prosecutrix did not disclose the name of any culprit. It is correct that there was no injury mark on the private part of prosecutrix. It is correct to suggest that the abrasions which are mentioned in MLC are possible by beating."
3(e)(iii) To connect the injuries at this stage, it is apt to reproduce the statement of prosecturix, during her cross examination by learned defence counsel as under:-
"It is correct that I received injuries on my mouth and neck due to the beatings of my husband."
3(e)(iv) Statement of Dr. Rakesh Purohit PW7 :- PW7 has examined the accused persons on 25.03.2015. He did not find any injuries on the accused persons. In this regard, his statement is to the following effect:-
"On examination following injuries were noted. There was no abrasion bruise, teeth bite marks seen over face, neck, hands, thigh and genitals. The penis were well developed normal in shape and size. Penis was uncircumcised. Both testis were well developed. No congenital anomaly was seen. Pubic hair were well developed not matted. Smegma was absent on corona glandis. There was no bruising on prepuce of glans penis.
(Though portion of the cross examination reproduced above is in respect of accused Rakesh Kumar, however, observations more or less remain the same for the other two accused persons as well.) 3(f). DNA profiling.
3(f)(i). Dr. Shalini Dhiman, PW-6:- In her statement recorded on 15.07.2016, PW6 speaks about the DNA profiling. She says that mixed ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 9 DNA profile was obtained from Ex-1 (vaginal Swabs, prosecutrix). Her opinion is that of the mixed DNA profiling thus obtain from prosecutrix, one DNA profile matched with that of accused Shiv Singh, other one matched .
with that of other accused Rakesh Kumar, but there was no matching of DNA profile obtained from vaginal Swabs of prosecutrix with that of DNA profile obtained from the third accused Pankaj. Meaning thereby she does not implicate accused Pankaj. Relevant portion of her statement, in this regard is as under:-
"I have seen aforesaid three parcels Ex.P37, P38 and Ex.P39 which were handed over by me to LC Ranjana Sharma after collecting the samples duly sealed with the seal impression 'M'.
I have seen the report Ex.PW7/D on the basis of analysis performed it is concluded. A mixed DNA profile was obtained from exhibit-1 (vaginal Swabs, prosecutrix) from which three DNA profiles could be identified. Of the mixed DNA profile; one DNA profile matched with the DNA profile obtained from exhibit- 11 (blood sample on FTA card, Shiv Singh), second DNA profile matched with the DNA profile obtained form exhibit-14 (blood sample on FTA card, Rakesh Kumar and the third DNA profile matched with the DNA profile obtained from exhibit-5 (blood sample prosecutrix). My earlier opinion on the basis of conclusion mentioned in Ex.PW7/D also remains same. However, the possibility of forcible sexual intercourse cannot be ruled out."
3(f)(ii) Dr. Rakesh Purohit, PW7:- In respect of DNA profiling and its result, PW7 concurred with the opinion of PW6, Dr. Shalini Dhiman.
However, without expressing any reasons, he opines that possibility of rape by accused Pankaj with prosecutrix cannot be ruled out, in the following manner:-
"I issued MLC Ex.PW7/E which is my handwritten and bears my signatures. I also took the signatures of Pankaj in red circle and attested also. Accused Pankaj is present in the court. On 25.10.2016 MLC 103/2015 Ex.PW7/E has been brought along with report no 704-B/SFSL/DNA (80)-15 dated 16/7/16 Ex.PW7/D from the Director of State FSL, Junga Shimla HP and concluded that a mixed DNA profile obtained from Ex.1 (vaginal ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 10 Swab of prosecutrix) from which three DNA profile could be identified of mixed DNA profile, one DNA profile matched with DNA profile obtained from Ex.11 (blood sample on FTA card Shiv Singh), Second DNA profile matched with DNA profile obtained from Ex.14 (blood sample on FTA card, Rakesh .
Kumar) and third DNA profile matched with DNA profile obtained from Ex.5 (blood sample prosecutrix). However, possibility of sexual intercourse or rape by accused Pankaj with prosecutrix cannot be ruled out."
In his statement he does talk about availability of evidence of sexual intercourse with prosecturix only against Shiv Singh and Rakesh Kumar.
3(f)(iii).
Dr. Arun Sharma, PW26:- Director Forensic Science Himachal Pradesh, while appearing in conclusion on DNA profiling, as under:-
the witness box, gives his "Conclusion:- On the basis of the above analysis performed on the aforesaid exhibits, it is concluded that :- A mixed DNA profile was obtained from exhibit-1 (vaginal swabs, prosecutrix) from which three DNA profiles could be identified. Of the mixed DNA profile; one DNA profile matched with the DNA profile obtained from exhibit-11 (blood sample on FTA card, Shiv Singh), second DNA profile matched with the DNA profile obtained from exhibit- 14 (blood sample on FTA card, Rakesh Kumar) and the third DNA profile matched with the DNA profile obtained from exhibit- 5 (blood sample prosecutrix)."
Though, PW26 in his conclusion arrived in his report as Ex.
PW7/D, suggests that DNA profile obtained from the vaginal swabs of prosecutrix matches only with DNA profile obtained from Shiv Singh and Rakesh Kumar and not with that of Pankaj. Yet he says that third low level contributor may or may not be fully represented within the data obtained and therefore cannot be excluded.
3(f)(iv). On conjoint reading of statements of PW6, PW7, PW26 and the relevant documents/exhibits, in this regard, it is apparent that DNA ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 11 profile obtained from vaginal swabs of prosecutrix, though has matched with the DNA profile obtained from two accused, i.e. Rakesh Kumar and Shiv Singh, but it did not match with that of Pankaj.
.
Therefore, the hypothesis that third accused cannot be excluded, since his DNA may or may not be represented within the data, cannot be accepted. Merely on the basis of 'may be's' and 'might not be's', a person cannot be convicted and sentenced to undergo rigorous imprisonment for a period of 20 years. DNA profiling is the best scientific evidence, which cannot be ignored.
3(g). Thus, in my considered view, conviction, of Pankaj for the offences under Section 452, 365 and 376-D IPC, cannot be sustained for the reasons hereinafter :-
3(g)(a) Prosecutrix herself stated that 2/3 persons came to her quarter at night and committed rape upon her. It is evident that she herself is not sure whether it was 2 or 3 persons, who committed rape upon her.
She in her statement as PW1 does not implicate accused Pankaj.
3(g)(b) The prosecutrix has not denied that her statement was recorded under Section 164 Cr.PC before learned JMIC concerned, to the effect that Shiv Singh, Rakesh Kumar and Pankaj, had committed rape upon her, but, while being cross examined by the State, she as PW-1, has explained that such disclosure of names by her before learned JMIC was on the basis of her assumptions that these three might have been the persons who ravished her, as these three had consumed liquor with her husband in the evening at their quarter.::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 12
It has been held by the Hon'ble Apex Court that statements under Section 164 Cr.P.C. cannot be treated as substantive evidence.
Reference in this regard can be made to Ram Kishan Singh Vs. Hamir .
Kuar and another, AIR 1972 Supreme Court 468:-
"8. A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Code of Criminal Procedure could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable,untruthful and unworthy of credence."
Entire law regarding value of statement recorded under Section 164 Cr.PC has been discussed by Madras High Court, in Criminal Appeal No.158 of 2013, titled as R.Palanisamy Vs. State By Inspector of Police, decided on 23.04.2013, para-33 onwards from this judgment relevant on the point are reproduced hereinafter:-
"33.The objective behind recording of statement of a witness under Section 164 Cr.P.C. is that it is for an assurance that the investigation is going on in right direction, it is going against a right person and, a belief that it will instill a sense of feeling in the mind of the deponent that later he should not resile from it. A feeling that he has been tied down to his such earlier statement.
34.In practice, resort being made to Section 164 Cr.P.C. by the Investigating Officers mainly when the case is in the investigation stage. Section 164 Cr.P.C. enables recording of statement of witnesses by the Magistrate and confession from the accused. The statement of witness has to be recorded like a statement recorded from a witness in the court. Before recording the statement, oath has to be administered to the witness. But, such recording of statement is not like recording of confession from the accused. Only before and after recording a confession, various precautionary measures including giving of reflection time to the accused has been prescribed. This rigorous exercise need not be followed for recording the statement of a witness under Section 164 Cr.P.C.::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 13
35.However, in many cases, as in the present case, we have seen that even while recording the statement of a witness under Section 164 Cr.P.C., the learned Magistrates are following the procedure that they have to follow before recording a .
confession from the accused, although such recording of the statement will not make the statement invalid or unreliable, but, it is a needless exercise, not even prescribed in Section 164 Cr.P.C.
36. A statement given by a witness u/s.164 Cr.P.C., is like a 'previous statement' given during investigation u/s.161 Cr.P.C. It is not 'substantive evidence' adduced before the Trial Judge, because it was not recorded in the presence of the accused. Because it was recorded - 'res inter alia acta - recorded behind the back of the accused. Because it was recorded from a witness during investigation. Besides giving it to a police officer, it was also given to a Magistrate.
37.With regard to the value to be given to a statement recorded under Section 164 Cr.P.C., in RAM KISHAN SINGH VS. HARMIT KAUR [AIR 1972 SC 468], the Hon'ble Apex Court held as under :
"8. A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness......"
38.Under Section 161 Cr.P.C., during investigation, the Investigating Officer can orally examine any person acquainted with the facts of the case. When he reduces the true account of it, then it becomes a statement under Section 161 Cr.P.C. and gist of it must find a place in his Case Diary (C.D.) (See Section 172 Cr.P.C). This is the 'previous statement' recorded by the Investigating Officer during investigation stage. It cannot be used as 'substantive evidence' as against the accused. There is total embargo in Section 162 Cr.P.C. for such usage with an exception in Section 162(2) Cr.P.C., that is, when the author of the statement dies it becomes his dying declaration under Section 32(1) of the Evidence Act. The section 161 statement can be used by the accused to contradict and impeach the credibility of the witness by the accused. It can be used by the accused in his favour. It cannot be used by the prosecution as against him. [See Sections 145, 155, 157 Evidence Act].
39.Although the statement of a witness recorded under Section 164 Cr.P.C. during investigation is also a previous statement like a statement recorded under Section 161 Cr.P.C., but, it has some higher value than the statement recorded under Section 161 Cr.P.C. by the police since it was recorded by a Magistrate.
::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 1440. With regard to the statement of a witness recorded by a Magistrate u/s.164 Cr.P.C., in RAMPRASAD VS. STATE OF MAHARASHTRA [1999 CRI.L.J. 2889 (SC)], the Hon'ble Apex Court observed as under :
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"15. Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof."
41.In GURUVINDAPALLI ANNA RAO VS. STATE OF A.P. [2003 CRI.L.J. 3253], a Division Bench of the Andhra Pradesh High Court held that since the previous statement of a witness under Section 164 Cr.P.C., has been recorded by a Magistrate, it is a public document, the Magistrate need not be summoned and examined as a witness.
The Division Bench observed as under :
"7.We would like to put one more discrepancy on record, viz., that while recording evidence, the learned II Additional Sessions Judge had summoned the I Additional Munsif Magistrate, Tenali (PW.10) to prove the statement of P.W.1 recorded by him under Section 164 Cr.P.C. This Court has already ruled if any Magistrate records the statement of a witness under Section 164 Cr.P.C, it is not necessary for the Sessions Judges to summon that Magistrate to prove the contents of the statement recorded by him. This Court has already ruled that when a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 Cr.P.C, such statement is a 'public document' and it does not require any formal proof. Moreover, it is seen that the learned II Additional Sessions Judge, Guntur, while recording the evidence of the I Additional Munsif Magistrate, Tenali (PW.10), has exhibited the statement of P.W.1 recorded by the Magistrate as Ex.P.10. As a matter of fact, such statement cannot be treated as a substantive piece of evidence. Such statement can be made use of by the ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 15 prosecution for the purpose of corroboration, or by the defence for contradiction, under Section 145 of the Evidence Act. Therefore, the II Additional Sessions Judge, Guntur, is directed to note the provisions contained in Section 145 of the Evidence Act. Even if a statement is recorded by a Magistrate, it is not a .
substantive piece of evidence, but it is only a previous statement."
42.We agree with the above view of the Division Bench of the Andhra Pradesh High Court. But, in many cases, we have seen that the learned Sessions Judges are simply summoning the learned Magistrates, who have recorded the statement of witnesses under Section 164 Cr.P.C., resulting in loss of their valuable services to the litigant public and others. Further, such exercise is also being done by the learned Sessions Judges even when a witness, who gave those statement turned hostile in the trial court, as it was done in the case before us.
43.Further, through the learned Magistrates, the learned Sessions Judges are marking the very statement of witnesses recorded under Section 164 Cr.P.C., even when the witness either turned hostile or has been dispensed with by the prosecution or not examined in the trial court due to various reasons.
44.When it was so marked the entire statement u/s.164 Cr.P.C., which has not been recorded before the learned Sessions judge, but recorded before the Magistrate, at a time when the accused was not in the picture, goes into the deposition of the witness, becomes part of the record of evidence, as it was done in the case before us. Then there is the danger of the trial court using them as substantive evidence, as it was done in the case before us.
45.This practice / procedure does not have the sanction of law. It has to be avoided by the learned Sessions Judges. It will be for the benefit of the prosecution, the accused and also prevent loss of precious court hours. A copy of those public records, namely, statement u/s.164 Cr.P.C., can be supplied / obtained by the prosecution as well as by the accused like the statement of witnesses recorded under Section 161 Cr.P.C. During the trial of the case before the learned Sessions Judge, like the statement of a witness under Section 161 Cr.P.C., these statements recorded under Section 164 Cr.P.C. can be referred to within the parameters of law.
::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 1646.In RAM LAKHAN SHEO CHARAN AND OTHERS VS. STATE OF U.P. [1991 CRI.L.J. 2790], when the witness, whose statement has been recorded by the learned Magistrate under Section 164 Cr.P.C., during the Sessions' trial, turned hostile, did .
not support his statement to the Magistrate, a Division Bench of the Allahabad High Court observed as under :
"12.The trial was held when the new Code of Criminal Procedure had come into force. The wordings of Section 164 in the new and old Code of Criminal Procedure with little changes are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 : (1942) 43 Cri LJ 277 a Division Bench of the Calcutta High Court had held that the statements Under Section 164 of the Code can be used only to corroborate or contradict the statements made Under Sections 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh Vs. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 : (1946) 47 Cri LJ 344) the Privy Council had observed that the statement Under Section 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 : (1949) 50 Cri LJ 872) and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioner's court that statement Under Section 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642 : (1960 Cri LJ 1167). A division Bench of this Court had also observed that statements Under Section 164 of the Code cannot be used as a substantive evidence.
13. The above catena of cases go to show that where the witnesses do not support the prosecution story in the Court, then their statements Under Section 164 of the Code cannot be used as substantive piece of evidence. In this case, the learned Judge had erred in using Exts. Ka-15 and Ka-16 as substantive piece of evidence."
47.Again in PHOOL CHAND VS. STATE OF U.P. [2004 CRI.L.J. 1904 ], when similar situation as in Ram Lakhan Sheo Charan (supra) arose, a Division Bench of the Allahabad High Court held as under :
"18.Learned Additional Public Prosecutor Sri Amarjeet Singh has tried to emphasise that Karan (P. W. 1) and his wife Smt. Makkhan (P.W.2) were produced before the Magistrate for recording their statements under Section 164 Cr.P.C. in which they fully supported the facts/circumstances leading to the commission of multiple murders in this case. The learned ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 17 counsel has contended that these statements should be given due weight and should be considered for proving the offences with which the appellants were charged. On thoughtful consideration on this legal aspect of the matter, we find that the .
aforesaid submission has no substance in it. The statement of a witness under Section 164 Cr. P. C. is one where the accused have hardly any occasion to cross examine him and if it is to be treated as substantive piece of evidence, it should be duly tendered before trial Court and then a witness should be produced by the prosecution for his cross examination. In this context the learned Senior Advocate appearing for the appellants has cited the case law of Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 (1946 (47) Cri LJ 336) and Ram Kishan Singh v.
Harmit Kaur, 1972 Cri. LJ 267 : (AIR 1972 SC 468). In these cases the Privy Council and the Hon'ble Supreme Court have categorically held that the statements recorded under Section 164 Cr. P. C. are not substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. In the present case, when the witnesses (P.W.1 and P.W.2) have themselves did not support their version, their statements earlier recorded under Section 164 Cr.P.C. could not be available to the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction, but that too has not been done in the present case. It is obvious that it would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under Section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis."
48. In T.DIWAKARA VS. STATE OF KARNATAKA [2006 CRI.L.J. 4813], during investigation, P.W.10 gave statement before a Magistrate under Section 164 Cr.P.C., but, later during the Sessions trial, he turned hostile. In such circumstances, the Karnataka High Court held as under :
"1....The statement of PW10 was recorded before the Magistrate. After the lodging of the complaint, PW10 has turned hostile. But the trial court convicted the accused on the strength of statement of PW10 recorded under Section 164 of Criminal Procedure Code. The trial court grossly erred in placing reliance on the statement recorded under Section 164 of Criminal Procedure Code as substantive evidence. While convicting the accused the statement recorded under Section 164 of Criminal Procedure Code does not have any better legal status than the one recorded under Section 161(3) of Criminal Procedure Code. At the most, if the deponent whose statement is recorded under Section 164 of Criminal Procedure Code turns hostile, he/she ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 18 could be prosecuted for perjury but on the strength of such statement no conviction can be placed. "
49.When a witness gave statement to the Magistrate under Section 164 Cr.P.C., later during the trial before the learned .
Sessions Judge disowned it, gave different version, either the statement given by him before the learned Magistrate may be true or his deposition before the learned Sessions Judge may be true, but both may not be true.
50. In this connection, long ago, in IN RE MADIGA NARASIGADU [AIR (36) 1949 MADRAS 502], this Court observed as under :
"2.It is no doubt true that either the statement made before the Taluk Magistrate under Section 164, Criminal P.C., or the evidence given in P.R.C. No. 1 of 1946 on the file of the Stationary Sub-Magistrate, Dharmavaram, is false and false to the knowledge of the petitioners. If according to the case of the respondent the statements made under Section 164, Criminal P.C., were true the evidence given before the Sub-Magistrate in P.R.C. No.1 of 1946 was false. But the petitioners say that they were forced to make false statements under Section 164, Criminal P.C.., and that later on they spoke the truth before the Magistrate. In similar circumstances, the observations made by Beaumont, CJ., in Emperor v. Ningappa Ramappa I.L.R. (1942) Bom. 26 : (A.I.R. (28) 1941 Bom. 408 : 43 Crl.L.J. 167) are very instructive and may be cited in extenso. The learned Judge says:
"No doubt, a man making a statement on oath before a Magistrate under Section 164, Criminal P.C., should speak the truth but if he does not, the least he can do is to tell the truth when subsequently he goes in the witness box. To prosecute a man who has resiled from a false statement, made under Section 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under Section 164 than that he should be induced to believe that it is to his interest, however false the statement may have been to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent person is too great to be risked."
With great respect I agree with his observations. Applying those observations I must say that the prosecution of the petitioners would not be in the interests of justice. Further these petitioners are illiterate Madigas and it is impossible to rule out the possibility that they were forced to make the statements which they did under Section 164, Criminal P.C., and later on they spoke the truth before the Court."
::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 1951.Thus, from the survey of the decisions relating to Section 164 Cr.P.C., as to its nature, scope, evidentiary value, consequences of the author of the statement resiling from his such statement before the learned Sessions Judge, his statement under Section 164 Cr.P.C., which is not a substantive piece of evidence loses .
its value. It cannot be used to record a finding of guilty. When the position of law is such that, in the case before us, inspite of the fact that the prosecutrix (P.W.1) has turned hostile, disowned her statement, the learned Additional Sessions Judge relied on it since it was recorded by a Judicial Officer. The trial court has completely went wrong."
3(g)(c) DNA profiling, as discussed above in Paras 3(f)(i) to 3(f)(iv), obtained from vaginal swabs of the prosecutrix, though matched with the DNA profiling obtained from other two accused, but it did not match with that of accused Pankaj.
It is relevant, in this regard, to reproduce hereinafter relevant paragraphs in Mukesh and another Vs. State (NCT) of Delhi) and others, (2017) 6 Supreme Court Cases 1:-
"211. DNA is the abbreviation of Deoxyribonucleic Acid. It is the basic genetic material in all human body cells. It is not contained in red blood corpuscles. It is, however, present in white corpuscles. It carries the genetic code. DNA structure determines human character, behaviour and body characteristics. DNA profiles are encrypted sets of numbers that reflect a person's DNA makeup which, in forensics, is used to identify human beings. DNA is a complex molecule. It has a double helix structure which can be compared with a twisted rope 'ladder'.
212. The nature and characteristics of DNA had beensuccinctly explained by Lord Justice Phillips in Regina v.Alan James Doheny & Gary Adams83. In the above case,the accused were convicted relying on results obtained by comparing DNA profiles obtained from a stain left at the scene of the crime with DNA profiles obtained from a sample of blood provided by the appellant. In the above context, with regard to DNA, the following was stated by Lord Justice Phillips:
"Deoxyribonucleic acid, or DNA, consists of long ribbon- like molecules, the chromosomes, 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes - 23 provided from the mother and 23 from ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 20 the father at conception,form the genetic blueprint of the body. Different sections of DNA have different identifiable and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain sufficient .
sections of DNA to enable a comparison to be made with the same sections extracted from a sample of blood provided by the suspect. This process is complex and we could not hope to describe it more clearly or succintly than did Lord Taylor C.J. in the case of Deen (transcript:December 21, 1993), so we shall gratefully adopt his description.
"The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the suspect. In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not."
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215.In District Attorney's Office for the Third Judicial District v.
"
William G. Osborne86, Chief Justice Roberts of the Supreme Court of United States, while referring to the DNA Test, stated as follows:
"DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure- usually but not always through legislation."
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"Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 21 matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue."
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"216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the Court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularized Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner."
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"218. This Court had the occasion to consider various aspects of DNA profiling and DNA reports. K.T. Thomas, J. in Kamti Devi v. Poshi Ram observed: (SCC p. 316, para 10) "10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. ..."
"219. In Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh88, a two-Judge Bench had explained as to what is DNA in the following manner: (SCC pp.617-18, paras 41-42)"
"41. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means:
"Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise,experts opine."
"There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 22 Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.
42. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In .
cross-examination, PW 46 had stated as under:
"If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population."
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"228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it I s to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."
In view of above discussions, the conviction & sentence passed by learned Trial Court against appellant/accused person Pankaj (in Criminal Appeal No.251 of 2018), is set aside. He is acquitted of offences under Sections 452, 365 and 376(D) read with Section 34 of the IPC. Resultantly, appellant-convict, who is presently serving out the sentence, be released forthwith, if not required in any other case, subject to his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount, to the satisfaction of learned trial Court, so that in the event of any appeal against this judgment is preferred, his presence in the appellate Court be secured. The bonds so furnished shall, however, remain in force only for a period of six months. Release warrant be prepared accordingly.
::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 234 Accused Shiv Singh (in Criminal Appeal No.257 of 2018) and Rakesh Kumar (in Criminal Appeal No.258 of 2018).
.
Evidence in these two appeals being common to the one discussed above, in preceding paras in Pankaj's case (Criminal Appeal No.251 of 2018) is not discussed here to avoid repetition. Therefore, continuing from there:- it has come out in the scientific evidence that sexual intercourse was committed by these two accused with the prosecutrix. However, some relevant aspects, which need to be noticed are:-
4(a). It is not the case of the prosecution that any door was broken by the accused persons for gaining entry in one room quarter of prosecutrix. It is the case of the prosecution that door was bolted from inside by the prosecutrix herself. In all probability, it is the prosecutrix herself, who opened door to her one room quarter.
4(b) Prosecutrix has stated that because having been gagged by the accused persons, she could not raise effective alarm. Her drunk husband and her three years old son were sleeping on the bed from where she was allegedly lifted outside by the accused persons. All three were sleeping on the same bed.
4(c) It was allegedly a case of gangrape as per prosecution. But for the abrasion over lips, chin & neck, there are no signs of injuries external or internal on the prosecutrix including her private parts. There are no injuries on the accused persons as well. No sign of resistance is visible either on prosecutrix or accused persons.::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 24
4(c)(i) In respect of conviction on the basis of statement of prosecutrix of her being non/consenting party to the act, reliability of her statement, vis-a-vis the factual position of each case, it is apt to refer to .
Hon'ble Apex Court in Lalliram and another Vs. State of Madhya Pradesh (2008) 10 Supreme Court Cases 69:-
"11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra and Ors. v. State of Orissa (1977 (3) SCC 41) where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar & Ors. v. State of Haryana (2004 (4) SCC 379)."
4(c)(ii) Reference, in this regard, can be made to Raja and others Vs. State of Karnataka (2016) 10 Supreme Court Cases 506 wherein it was held as under:-
"34. This Court in Raju vs. State of M.P. (2008) 15 SCC 133, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 25 rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."
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"37.The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellants. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellants has been proved beyond reasonable doubt. In our estimate, the view taken by the Trial Court is the overwhelmingly possible one. In contrast, the findings of the High Court are decipherable strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. Noticeably, the High Court has exonerated the appellants of the charge of abduction under Section 366 IPC, which is an inseverable component of the string of offences alleged against them. Judged by the known parameters of law, the view adopted by the High Court is not a plausible one when juxtaposed to that of the Trial Court. We are of the unhesitant opinion that the prosecution has failed to prove the charge against the appellants to the hilt as obligated in law and thus, they are entitled to the benefit of doubt. The appeal thus succeeds and is allowed. The impugned judgment and order is set-aside. The appellants are on bail. Their bail bonds are discharged."
4(c)(iii) In another judgment of Hon'ble Apex Court in Dilip and another Vs. State of M.P. (2001) 9 Supreme Court Cases 452, held as under:-
"12. The law is well-settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. Vs. Gian Chand (2001) 6 SCC 71 -, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This Court relied upon the following state of law from State of Punjab Vs. Gurmit Singh SCC (1996) 2 SCC 384 (para 21):::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 26
"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 involving sexual molestations..."
4(c)(iv) Reliance in this regard can be made in Krishan Kumar Malik Vs. State of Haryana (2011) 7 Supreme Court Cases 130, wherein Hon'ble Apex Court held as under:-
"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy,unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant."
4(c)(v) Hon'ble Apex Court in Pratap Misra and others Vs. State of Orissa (1977) 3 Supreme Court Cases 41, held as under:-
"22. This is all the evidence that has been led in this case. After going through the entire evidence carefully we are clearly of the opinion that the evidence in this case shows that the appellants had no doubt committed sexual intercourse with the prosecutrix but such an intercourse was done with the tacit consent of the prosecutrix and the connivance of her husband. There is no material at all to prove the allegation of rape, the medical evidence does not support it, the ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 27 circumstances proved in the case militate against the case of such a theory and the conduct of Pws 1 and 2 itself is inconsistent with the allegation of rape. Both the Courts below, while appreciating the evidence have completely overlooked the telling circumstances and the glaring errors found in the .
prosecution case which have necessitated its rejection in toto.
The Courts below appear to have presumed that the allegation of rape was true without there being sufficient evidence and without even examining the possibility of consent which was not only present in this case but almost proved and probabilised by the circumstances discussed by us and which appear from the prosecution evidence itself. We are, therefore, satisfied that the Courts below have made an absolutely wrong approach to this case, have failed to consider the striking circumstances which demolish the prosecution case and have committed gross error of procedure in not examining the possibility of consent merely on the ground that the same was not pleaded by the accused. Such an approach, therefore, clearly vitiates the judgments of the Courts below.
4(d) The prosecutrix has allegedly been lifted by the accused persons at around 11.00 pm and as per the statement of PW2 (her husband), she came back at around 2.30 am. This is a huge time gap.
There is no allegation of repeated rapes upon her. Husband has stated that his wife was nervous when she returned. And as discussed above, but for abrasion on lips and neck, there were neither any injuries on prosecutrix nor on accused persons. However, DNA profiling test has proved that sexual intercourse did take place between prosecutrix and accused persons, namely Shiv Singh and Rakesh Kumar. Prosecutrix was aged around 24 years on the date of alleged incident. Her being consenting to the act cannot be ruled out. In addition to the law regarding consent of the prosecutrix, reliability of her statements, as discussed in the aforegoing preceding paras, at this stage, it will be appropriate to refer to judgment passed by the Hon'ble Apex Court regarding giving benefit of ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 28 reasonable doubt to the accused in State of Rajasthan v. N.K. The Accused- (2000) 5 SCC 30, wherein it was held as under:-
"9....... A doubt, as understood in criminal jurisprudence, has .
to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat:-(1983) 3 SCC 217 this Court observed that 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. This Court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion. We need only remind ourselves of what this Court has said through one of us (Dr A. S. Anand, J. as his Lordship then was) in State of Punjab v. Gurmeet Singh:- (1996) 2 SCC 384: p. 403, para 21).
"[A] rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- It is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very should of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. The must deal with such cases with utmost sensitivity. 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."
10. The questions arising for consideration before us are:
whether the prosecution story, as alleged, inspires confidence of the court on the evidence adduced? Whether the prosecutrix, is a witness worthy of reliance? Whether the testimony of a prosecutrix who has been in victim of rape stands in need of corroboration and? If so, whether such corroboration is available in the facts of the present case? What was the age of the prosecutrix? Whether she was a consenting party to the crime? Whether there was unexplained delay in lodging the FIR?"::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 29
5. Considering the ratio of law laid down, considering the nature of evidence on record, where prosecutrix refuses to identify the accused .
persons as culprits, resiles from her statement given under Section 164 Cr.PC, does not support prosecution case of rape by accused persons, her husband also does not support prosecution case, where in an alleged case of gangrape by accused persons for over three hours, there are no signs of injuries visible either on prosecutrix or on accused persons, where prosecutrix admits knowing accused persons prior to the incident and admits being beaten by her husband on her return to her quarter; her being consenting party to the act, cannot be ruled out. Therefore, I will have to conclude that accused persons deserve to be acquitted by giving benefit of reasonable doubt.
6. In view of the above discussions and observations, in my considered view, the prosecution has also failed to establish its case against the accused persons, namely, Shiv Singh, (in Criminal Appeal No.257 of 2018) and Rakesh Kumar (in Criminal Appeal No.258 of 2018). Consequently, the appeals filed by the afore appellants-convicts are allowed and they are acquitted of the commission of offences punishable under under Sections 452, 365 and 376(D) read with Section 34 of IPC. Resultantly, appellants- convicts, who are presently serving out the sentence, be released forthwith, if not required in any other case, subject to their furnishing personal bond in the sum of Rs.50,000/-(each) with one surety in the like amount (each), to the satisfaction of learned trial Court, so that in the event of any appeal against this judgment is preferred, ::: Downloaded on - 29/09/2019 00:43:56 :::HCHP 30 their presence in the appellate Court be secured. The bonds so furnished shall, however, remain in force only for a period of six months. Release warrants be prepared accordingly, The appeals are final disposed of, so .
also the pending miscellaneous application(s), if any.
(Jyotsna Rewal Dua)
Judge
12.07.2019 (Rohit)
r to
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31
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