Himachal Pradesh High Court
______________________________________________________________________ vs Prithvi Raj @ Joull on 16 September, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 79 of 2012 Reserved on : 29.08.2016 .
Date of Decision: 16.09.2016 ______________________________________________________________________ State of Himachal Pradesh .....Appellant.
Vs.
Prithvi Raj @ Joull .....Respondent.
Coram:
of
The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes.
For the appellant
rt : Mr. V.S. Chauhan, Addl. A.G., with Mr.
Vikram Thakur, Dy. A.G.
For the respondent: Mr. Kanta Thakur, Advocate.
Ajay Mohan Goel, Judge :
By way of this appeal, the State has challenged judgment dated 30.09.2011 passed by the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in RBT SC No. 70- N/VII/10/00, Sessions Trial No. 20/11 vide which, learned trial Court has acquitted the accused for commission of offences punishable under Sections 363, 366-A & 376 of the Indian Penal Code.
2. The case of the prosecution in brief was that prosecutrix, daughter of Sher Singh, resident of Jhhikli Khanny was away to Jassur Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 2for tution on 16.07.2008, but she did not come back to her house in the evening. Complainant Sher Singh remained under this impression that she might have gone to the house of his relatives. Both on 17.07.2008 .
and 18.07.2008, Sher Singh searched for his daughter at the houses of his relatives. However, on 18.07.2008 at 10:00 a.m., accused came and asked Sher Singh about the prosecutrix and at the same time, accused told him that she had been taken away by some boys and he was going to of search for her. Further, as per the prosecution, on 19.07.2008 accused contacted Sher Singh on mobile and informed him that the prosecutrix was with him. Sher Singh suspected that his daughter had been taken rt away by the accused to marry with him and accordingly rapat Ex. PW1/A was lodged on 23.07.2008, on the basis of which, police made inquiries from the parents of the accused and in the meantime, accused was contacted by his parents on his mobile phone. In the morning of 27.07.2008, accused and prosecutrix were found in a Khad and they were apprehended there by Sher Singh with the help of villagers. It was disclosed to the police by the prosecutrix that on 16.07.2008, while she was coming back from tution, accused met her in his vehicle at Nagbari and asked her to board the same. Accused waited there for some time for passengers and asked prosecutrix to marry him, to which prosecutrix told him that she was only 17 years old and she wanted to study.
Further, she was Rajput by caste, whereas accused was Ghirth Choudhary. As per the prosecution, accused took prosecutrix to ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 3 Pathankot in his vehicle and on 17.07.2008, he brought her back to Nagbari and thereafter took her to Chintpurani in a bus. On the night of 17.07.2008 and 18.07.2008, accused kept the prosecutrix in a Saraye at .
Chintpurani and had sexual intercourse with her without her consent and against her will. On 19.07.2008, accused took the prosecutrix to Nadaun before a Notary Public and prepared certain documents with regard to marriage, in which the age of the prosecutrix was falsely of mentioned as 19 years. In the evening, accused took the prosecutrix to Jawalamukhi and there they stayed in a room in Saraye, where again the prosecutrix was sexually molested by the accused without her consent rt and against her will.
3. After the accused was apprehended with the prosecutrix, both were taken to the Police Station, from where they were referred to CHC, Nurpur for medical examination.
4. After the completion of investigation, as sufficient evidence was found against the accused for commission of offences punishable under Sections 363, 366-A & 376 of the Indian Penal Code, a challan was filed in the Court and as a prima facie case was found against the accused, accordingly he was charged for having committed offences punishable under Sections 363, 366-A & 376 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.
5. In order to substantiate its case, 16 witnesses in all were examined by the prosecution.
::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 46. Dr. Subati Saha Roy entered the witness box as PW-1 and stated that on 27.07.2008 at about 5:00 p.m., the prosecutrix was brought by the police for medical examination with history of sexual .
assault by the accused. This witness stated that there was no evidence of external injuries over the body of the prosecutrix. This witness further stated that in her opinion, it seemed that there was no evidence of any recent sexual intercourse, but the prosecutrix seemed to be habitual of of sexual intercourse. This witness further stated that according to the findings of P/C and P/S examination alongwith above reports, victim was habitual of sexual intercourse, but rape could not be ruled out.
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7. Dr. P.K. Aluwalia entered the witness box as PW-2 and stated that accused Prithvi Raj was brought for medical examination by the police on 27.07.2008 with history of having been beaten up by Sher Singh and his son Anku and other villagers. This witness stated that he had issued MLC Ex. PW2/B and that accused was having multiple abrasions on back of neck and bruise, two in number. This witness further opined that the injuries were simple in nature caused within 24 hours with a blunt object.
8. Purshotam Ram entered the witness box as PW-3 and stated that the prosecutrix was his niece and on 16.07.2008, he was informed by his brother Sher Singh that Prithvi Raj had kidnapped the prosecutrix.
::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 59. PW-4 Satpal stated that on 27.07.2008 at about 6:30 a.m., Sher Singh came to his house and told that his daughter had been kidnapped by the accused, who was forcing her to marry him. On .
27.07.2008 itself, accused alongwith prosecutrix were caught by Mohinder, Kewal, Sher Singh and his son at Jabbal Khad and they were brought to the house of Sher Singh, where PW-4 was also present. In his cross-examination, this witness admitted it to be correct that on asking, of prosecutrix told all the persons present there that she had performed marriage with Prithvi Raj, i.e. accused. He also admitted that prosecutrix was Rajput by caste and the accused was Chaudhary (Ghirth). He also rt stated in his cross-examination that accused used to teach prosecutrix.
10. Rakesh Kumar entered the witness box as PW-5 and he stated that he was Sevadar at Rurka Kalan Saraye at Chintpurni and the accused had come with a lady and had stated that they were married and they stayed for two days and booking was done in the name of Des Raj.
11. Kamal Kishore entered the witness box as PW-6 and stated that he was posted as Assistant Secretary with Gram Panchayat, Khanni Jhhikali and he placed on record birth certificate of the prosecutrix Ex.
PW6/B. In his cross-examination, he has stated that one has to report the date of birth to Panchayat within 21 days and in the present case, entry was made on 30.06.1991, whereas date of birth was 02.06.1991.
He also stated that an entry made after 21 days is effected only when it is certified by the Tehsildar.
::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 612. PW-7 Constable Sushil Katoch is a formal witness.
13. PW-8 Constable Siridev proved on record the factum of xtract of registers recovered by the police during the course of investigation from .
the relevant Saraye at Chintpurani and Jawalamukhi, where the accused had stayed with the prosecutrix.
14. PW-9 LC Anita Kumar is also a formal witness.
15. PW-10 HC Bir Singh stated that in the year 2008, he was of posted as MHC, Police Station Nurpur and on 27.07.2008, case property was deposited with him and on 05.08.2008 vide RC No. 168/08, the same was sent through Constable Shiv Kumar to FSL Junga for chemical rt examination and after depositing the same at FSL Junga, Constable Shiv Kumar had handed over the receipt to him.
16. PW-11 ASI Rakesh Kumar is also a formal witness.
17. PW-12 Dr. Teena Gupta deposed that on 27.07.2008, she was on emergency duty at CHC, Indora, when at about 5:00 p.m., victim was brought by the police for medical examination with history of sexual assault. This witness deposed that there was no evidence of any external injury over the body of the prosecutrix. She further reported that as per systematic and physical examination of the prosecutrix, it seemed that there was no evidence of any recent sexual intercourse, but at the time of examination, victim seemed to be habitual of sexual intercourse. This witness also deposed that according to the findings of P/C and P/S ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 7 examination alongwith FSL report victim was found habitual of sexual assault, but possibility of rape could not be ruled out.
18. Prosecutrix entered the witness box as PW-13. She stated in .
the Court that she was a student of 10+2 in Government School, Jassur and that there were holidays in the School and the accused was her uncle and used to park his vehicle in their field. This witness also deposed that accused was B.Sc. pass and used to come to there house occasionally.
of She further deposed that on 16.07.2008, she was away for tution to Jassur and while on her way back at village Nagwari, accused met her in his vehicle and asked her to accompany him in his vehicle as he was also rt going home. Prosecutrix accordingly boarded the vehicle of the accused, who waited there some time for other passengers, however, no other passenger came. Further, as per the prosecutrix, thereafter accused asked her to marry him. As per the prosecutrix, she replied that as she was 17 years old and belonged to Rajput caste, she wanted to study and not to marry the accused. Further, as per the prosecutrix, accused took her to Pathankot from Nagbari in his vehicle and at Railway Station and Bus stop at Pathankot, he was enticing her to marry him. On 18.07.2008, accused took her to Jassur from Chintpurni and asked her to stay there on the pretext that he was going to her parents' house to persuade them.
Further, as per the prosecutrix, after some time, accused came back and told her that her parents had consented for marriage. Thereafter, accused took her to Chintpurni in the same Saraye, where they stayed for the ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 8 entire night of 18.07.2008. In the night of 18.07.2008, accused had sexual intercourse with the prosecutrix against her consent to which she objected, but she was given kicks and fist blows by the accused and her .
mouth was also gagged by the accused. As per the prosecutrix, accused did all these activities despite her objections. On the morning of 19.07.2008, accused asked her to talk with her mother on telephone and to inform her that she was with him of his own accord. As per the of prosecutrix, she told her mother that the accused had taken her on the pretext of visiting Pathankot and other places and as she started crying, accused disconnected the telephone. Further, as per the prosecutrix, on rt the same day, accused took her to a lawyer at Nadaun and with his help prepared marriage documents against her wishes mentioning therein that her age was 19 years. Prosecutrix also stated that they stayed in a Saraye at Jawalamukhi on 19.07.2008 and 20.07.2008 and again accused had sexual intercourse with her against her wish and without her consent. On 21.07.2008, accused took her to Mertatak at the house of his Bua, where they stayed and there also accused had sexual intercourse with her without her consent. On 22.07.2008, she remained in the house of the Bua of accused, whereas accused went to his sister's house at Basa Wazira for money. On 23.07.2008, accused took her to Vaishno Devi, where they stayed till 25.07.2008. As per the prosecutrix, she was kept in between and was not taken to the temple. During this period, accused again had sexual intercourse with her without her consent and despite ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 9 her objections. On 26.07.2008, accused talked with his mother on telephone. On the night of 26.07.2008, accused brought the prosecutrix to his own village Jhhikali Khani from where his brother and parents took .
her to a Khad, which was 3 Kms. away from the house and there she was kept for the entire night. In the morning, she noticed her father near the Khad and she freed herself from the accused and ran to her father. Her father called Satpaul and Kartar to the spot in the Khad and from there, of they took the prosecutrix to the house of her parents. Prosecutrix further stated that Police came and took her to the Police Station, from where she was sent for medical examination. In her cross-examination, this witness rt stated that at the time of making the statement she was 21 years old. She also admitted that she used to travel in the vehicle of the accused before 16.07.2008. This witness further deposed that on 16.07.2008, they were at Pathankot and remained in the vehicle. She further stated that on 17.07.2008, she remained alone at village Nagabarion for about half an hour. She further stated that she remained all alone for 20 minutes on 18.07.2008 and there were about 15-20 shops in the market. She stated that neither on 17.07.2008 nor on 18.07.2008, she tried to go to her house. She admitted that when they went to different places in the bus, there were other passengers in the bus. She also admitted it to be correct that neither she raised any noise nor did she tell any passenger anything who were travelling in the bus. She stated that in the Saraye, they were all alone and no person was there. She denied that on 23.07.2008, she ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 10 was in the Court at Nadaun, though she admitted that photographs Ex.
D1 to Ex. D4 were her and those of the accused. She admitted that on the face of it, photographs appear to have been taken in the temple. She .
denied that on 19.07.2008 they performed marriage at Chintpurni temple. She denied that she was not subjected to any sexual intercourse by the accused against her consent. She stated in her cross-examination that she had told the police that the accused alongnwith her parents and of brother kept her in a Khad on the night of 26.07.2008 and this witness was confronted with her statement Mark-X, in which it was not so recorded. This witness was also confronted with her statement Mark-X, in rt which it was also not so recorded that when she saw her father near the Khad, she ran towards him and she was also confronted with Mark-X in which it was also not so recorded that the accused being uncle was like her father. She denied the suggestion that she had friendly relations with the accused and had gone with him of her own volition and the accused did not entice and compel her to accompany him. She denied that on their return, accused was given merciless beatings by her father, Satpaul, Kartar and other villagers.
19. Sher Singh entered the witness box as PW-14 and deposed that on 16.07.2008, prosecutrix went to Jassur for tuiton at about 12:30 noon, but did not return back in the evening and he thought that she might have gone to the house of some relatives. However, she did not return back on 17.07.2008 and on 18.07.2008 at about 10:00 a.m., ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 11 accused came to his house and asked about whereabouts of the prosecutrix, on which Sher Singh told him that she had not come back to home for the last two days. As per this witness, at this stage, accused .
told him that he will search for the prosecutrix as some boys had taken her with them. He further stated that on 19.07.2008, accused rang on his mobile and told him that prosecutrix was with him and when the prosecutrix was talking with his wife, she was weeping. This witness of further deposed that they tried their best to search for the prosecutrix, but could not do so and accordingly on 23.07.2008, they reported the matter to the police against the accused on the basis of suspicion. He rt further stated that on 27.07.2008 at about 6:30 a.m., he was away to his field and had gone towards the Khad when he noticed the prosecutrix with the accused. Prosecutrix came running to him and thereafter he called Kartar and Satpal on the spot and with their help he brought the prosecutrix to his house alongwith the accused and also informed the police. Thereafter, police came and took both the accused and his daughter to the Police Station, from where his daughter was sent for medical examination. This witness further deposed that the accused used to park his vehicle near his fields and he also used to come to their house. He further stated that his daughter told him that accused took her away without her consent and committed sexual intercourse with her. In his cross-examination, he admitted that before 16.07.2008, prosecutrix used to talk with the accused. He also admitted the suggestion that ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 12 though they had come to know on 19.07.2008 that the prosecutrix was with the accused, however, they did not report the matter to the police till 23.07.2008. He further stated that the matter was reported to the .
Panchayat on 20.07.2008. He admitted that the prosecutrix used to travel in the vehicle of the accused before 16.07.2008 but stated that she used to pay money for the same and denied the suggestion that she did not use to pay money in this regard. He denied that prosecutrix and accused of had a love affair and which was not acceptable to him due to caste factor.
He admitted that prosecutrix had told them that she travelled in bus and stayed in the Sarayes of the temples.
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20. Sawan Kumar Sindhia entered the witness box as PW-15 and he stated that he was Safaie Karamchari in Bansal Dharamshala Jawalamukhi and the accused had come with his wife to the Dharamshala in the year 2008. This witness further stated that as there was no room in the Dharamshala, he took the accused and his wife to the house of Poozari Krishan Swarup Sharma and they resided there. In his cross-examination, he mentioned that the lady accompanying the accused appeared to be newly married as per her clothes and other wearings.
21. I.O. Daya Sagar entered the witness box as PW-16 and he stated that rapat Ex. PW11/A was entered on 23.07.2008, on the basis of which, FIR Ex. PW16/A was registered. He further deposed that on 27.07.2008, he received information on telephone from the father of the ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 13 prosecutrix that accused has been seen in Nallah alongwith the prosecutrix. He further deposed that he went to village of father of the victim and found accused and victim sitting in the courtyard of Sher .
Singh. He further deposed that both of them were brought to the Police Station, from where prosecutrix was taken for medical examination.
Thereafter, this witness deposed about the factum of investigation being carried out in this regard and recovery of the case property. In his cross-
of examination, he admitted that on 16.07.2008, the prosecutrix had left her house of her own. He admitted that it had come in the course of investigation that from 16.07.2008 to 26.07.2008, prosecutrix had rt travelled both in bus as well as in car. He also stated that he had taken into possession affidavit regarding marriage of the prosecutrix and the accused. He denied that it had come in the investigation that prosecutrix was about 18 years of age and that is why he did not record any statement of the Advocate, Notary Public etc. He stated in his cross-
examination that it had come in the FIR that prosecutrix had talked with her parents on telephone and FIR was lodged only on 23.07.2008.
22. On the basis of testimonies of the said witnesses and other material produced on record by the prosecution, learned trial Court vide its judgment under challenge held that the prosecution was not able to establish the guilt of the accused beyond all reasonable doubts and on these basis, it ordered acquittal of the accused for charges punishable under Sections 363, 366-A and 376 of the Indian Penal Code. While ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 14 returning the said findings, learned trial Court took into consideration that it had come on record that the accused was well known to the prosecutrix and she used to travel with the accused in his vehicle and .
there was no evidence which could demonstrate that past conduct of the accused was in any manner bad towards the prosecutrix. Learned trial Court further held that material produced on record demonstrated that the prosecutrix had ample time and opportunity to escape from the of custody of the accused and to lodge a complaint against him had she really been forcibly taken by the accused as alleged, however, neither she lodged any complaint nor she made any attempt to escape which clearly rt reflected that she remained willingly with the accused throughout. It was further held by learned trial Court that prosecution was not able to establish on the basis of evidence on record that the accused in fact had kidnapped the prosecutrix on 16.07.2008 from village Nagbari from the lawful guardianship of her parents with intention to have sexual intercourse and marry her against her will. Learned trial Court further held that prosecution was not able to prove that on 17.07.2008, 18.07.2008 and 19.07.2008 accused had sexual intercourse with the prosecutrix against her will and without her consent. On the basis of said evidence, learned trial Court acquitted the accused.
23. Mr. V.S. Chauhan, learned Additional Advocate General has vehemently argued that the findings of acquittal returned by learned trial Court were perverse and not sustainable both on facts and law. Mr. ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 15 Chauhan argued that the prosecution had proved beyond reasonable doubt that the prosecutrix was kidnapped by the accused from the lawful guardianship of her parents on 16.07.2008 and thereafter she was .
subjected to sexual intercourse by the accused against the will and consent of the prosecutrix. It was further argued by Mr. V.S. Chauhan, that learned trial Court had erred in not appreciating the testimonies of the prosecution witnesses in its correct perspective, which had resulted of in great travesty of justice. According to Mr. Chauhan, it categorically stood proved from the statements of PW-13 and PW-14, i.e. prosecutrix and her father that the prosecutrix was kidnapped by the accused, who rt thereafter sexually molested the prosecutrix on the pretext of false promise of marriage. According to Mr. Chauhan, this very importance aspect of the matter had not been appreciated by learned trial Court in correct perspective. He further argued that the testimonies of prosecution witnesses on all material points nailed the guilt of the accused and, therefore, the judgment of acquittal passed by learned trial Court was not sustainable.
24. On the other hand, Ms. Kanta Thakur, learned counsel appearing for the respondent argued that there was neither any perversity nor any infirmity with the judgment passed by learned trial Court and according to her, learned trial Court had rightly acquitted the accused from charges punishable under Sections 363, 366-A and 376 of the Indian Penal Code as the prosecution had failed to prove beyond ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 16 reasonable doubt that the accused was guilty of commission of said offences. Ms. Kanta Thakur further argued that the evidence on record was self speaking that the prosecutrix was neither minor nor she was .
kidnapped from the lawful custody of her parents by the accused.
According to Ms. Thakur, the prosecutrix was in love with the accused and she had willfully of her own volition gone with the accused and had solemnized marriage also. According to Ms. Thakur, as the parents of the of prosecutrix were not willing to accept the relation of the prosecutrix with the accused due to caste factor, it was on these basis that a false case was made against the accused in which he was implicated. On these rt basis, it was submitted by Ms. Thakur that the conclusion arrived at by learned trial Court to the effect that the prosecution had miserably failed to prove the charges for commission of offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code called for no interference and she prayed that as there was no merit in the appeal, the same be dismissed.
25. We have heard the learned counsel for the parties and also gone through the records of the case and the judgment passed by the learned trial Court.
26. In the present case, the accused was charged for commission of offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code. As per the case put forth by the prosecution, prosecutrix who was a minor was kidnapped from the lawful guardianship of her parents ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 17 by the accused on 16.07.2008 with the intention to compel her to have sexual intercourse and marry him against her will.
27. Admittedly, the prosecutrix went missing on 16.07.2008 and .
rapat in this regard was lodged by the father of the prosecutrix against the accused on suspicion on 23.07.2008. Admittedly, accused personally met the father of the prosecutrix on 18.07.2008 and had thereafter contacted him on telephone on 19.07.2008. It has come in the of testimonies of prosecution witnesses PW-13 and PW14, i.e. prosecutrix as well as her father that on 19.07.2008, the prosecutrix had conversion with her mother on telephone. Despite this, it took four days for the rt father of the prosecutrix to lodge a complaint against the accused with the police. The justification given by the father of the prosecutrix to explain the delay in lodging the FIR that he had reported the matter to the Panchayat on 20.07.2008 is not substantiated from any material on record. Neither any complaint has been placed on record nor Pradhan of the Gram Panchayat or any responsible officer/official of the Gram Panchayat has entered the witness box to substantiate that the factum of prosecutrix having been kidnapped by the accused was reported by the father of the prosecutrix to the Gram Panchayat.
28. In our considered view, this conduct of the father of a girl who was missing since 16.07.2008 of not reporting the matter to the police till 27.07.2008 despite the factum of her being with the accused being in his express knowledge since 19.07.2008 is highly unnatural. The ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 18 only inference which can be drawn from this conduct of the father of the prosecutrix is that he was aware of the fact that the prosecutrix had not been kidnapped by the accused, but rather she had gone with the .
accused out of her free will and volition. This conclusion of our's is fortified by the testimony of PW-3, PW-4 as well as PW-13, i.e. the prosecutrix. According to PW-13, she was allegedly kidnapped by the accused on 16.07.2008. Thereafter, as per the version put forth by her in of the Court, she was taken to various places by the accused both in car as well as by way of travelling in public transport, i.e. by bus to Pathankot, Jawalamukhi and Vaishno Devi. This witness has also stated that she rt was also taken by the accused to the house of his Bua, where she stayed. It is apparent and evident from her testimony that no attempt at any stage was made by her to either escape from the alleged wrongful custody of the accused nor at any stage she raised any hue and cry to the effect that she had been kidnapped by the accused. This fact assumes importance because admittedly it is not the case of the prosecutrix that after her alleged kidnapping, she was kept in a secluded place by the accused. The places where the prosecutrix was taken by the accused, even as per her testimony, were places where public at large was present.
No cogent and plausible explanation has come forth from the prosecutrix as to why she did not raise any hue and cry and alarmed the public that she had been kidnapped by the accused. The factum of her being sexually molested by the accused against her will and consent has also not been ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 19 proved by the prosecution at all. The statements of the doctors who examined the prosecutrix coupled with the MLCs. which are on record demonstrate that the doctors have categorically stated that there was no .
evidence of recent sexual intercourse with the prosecutrix and the prosecutrix seemed to be habitual of sexual intercourse. No external injuries etc. were found on the body of the prosecutrix which belied her contention that when she resisted the accused from outraging her of modesty, when he physically assaulted her. The story put forth by the prosecutrix as to how the prosecutrix was recovered in a Nallah where she was kept for the entire night of 26.07.2008 by the parents of the rt accused is also purportedly a concocted story because this version of the prosecution has not been proved by any of the independent witnesses.
The persons who had allegedly gone with the father of the prosecutrix to the Nallah from where prosecutrix was recovered and brought back to her house alongwith the accused have not been examined by the prosecution.
Besides this, it has come on record that when the accused was medically examined after he and the prosecutrix were allegedly recovered from the Nallah, injuries were found on the body of the accused, which as per the accused were inflicted upon him by the father of the prosecutrix.
29. Before proceeding further, it is relevant to take note of the fact that this Court is not oblivious to the fact that in a case under Section 376 of the Indian Penal Code, conviction of the accused can be ::: Downloaded on - 15/04/2017 21:14:28 :::HCHP 20 based on the sole testimony of the prosecutrix itself if the same is cogent, trustworthy and reliable.
30. It is settled law that a prosecutrix complaining of having been .
a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. This is for the reason that the prosecutrix stands at a higher pedestal than an injured witness. However, of the fact still remains that the testimony of the prosecutrix on the face of it has to be acceptable. {See State of U.P. Vs. Pappu alias Yunus and another (2005) 3 Supreme Court Cases 594}.
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31. Though it is settled law that corroboration is not sine qua non for conviction in a rape case, however, it is relevant to refer to the judgment of Hon'ble Supreme Court in Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, in which it has been observed as under:
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...."
32. In our considered view, in the facts of the present case, as they emerge from the evidence which has been placed on record by the prosecution, it cannot be said that the testimony of the prosecutrix is either cogent or it is trustworthy, reliable or the same seems to be ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 21 truthful. Further, the credibility of the testimony of the prosecutrix has also been impinged by the defence in her cross-examination. Not only there are inconsistencies and contradictions in her statement recorded in .
the Court of law and which was previously recorded with the police, but she has also made improvements in the same which have gone unexplained. At the cost of repetition, we state that the prosecution has not been able to produce iota of evidence to substantiate that the of prosecutrix was in fact kidnapped from the lawful guardianship of her parents by the accused in the mode and manner in which the prosecution wants this Court to believe. Admittedly, there is delay in rt lodging of FIR and there is no cogent explanation to explain said delay in lodging of the FIR. The conduct of the father of the prosecutrix is also unnatural as is expected from a father whose young girl is found missing from the house. In fact, this possibility cannot be ruled out that the prosecutrix willfully ran away with the accused and thereafter returned back after 5-6 days and it was for this reason that the family of the prosecutrix being aware of the fact that she had willfully gone with the accused, they immediately did not lodge any FIR with the police.
33. The Hon'ble Supreme Court has held in State of Punjab Vs. Gurmit Singh and others, (1996) 2 Supreme Court Cases 384:
"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 ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 22 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 of 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 rt may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is 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 a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 23 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 of 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 rt 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 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 strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. "
34. The Hon'ble Supreme Court in Radhu Vs. State of Madhya Pradesh, (2007) 12 Supreme Court Cases 57 has held:
" 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 ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 24 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 of 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 rt should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
35. In Narender Kumar Vs. State (NCT of Delhi), (2012) 7 Supreme Court Cases 171, the Hon'ble Supreme Court has held:
"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 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 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.::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 25
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 of 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 23. rt Maharashtra.
In Jai Krishna Mandal & Anr. v. State of Jharkhand, this Court while dealing with the issue held:
(SCC p. 535, para 4) "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."
36. In Munna Vs. State of Madhya Pradesh, (2014) 10 Supreme Court Cases 254, the Hon'ble Supreme Court has been pleased to held:
"7. We are conscious that testimony of the prosecutrix 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. 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 ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 26 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 of 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, rt 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.
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 the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her.
::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 27(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 of counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
9. In State of Maharashtra vs. Chandraprakash rt Kewalchand Jain, this Court held as under : (SCC pp. 558- 60, paras 15-17) "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 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 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 ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 28 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.
of 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 rt 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 is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and 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 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 ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 29 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.
of
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 rt 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 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. 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 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."
::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 3010. 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 of 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 rt testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual 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 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 ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 31 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 of 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 rt 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."
37. The Hon'ble Supreme Court of India in Manoharlal Vs. State of Madhya Pradesh, (2014) 15 Supreme Court Cases 587 has held:
"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 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 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 ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 32 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 of testimony."
(emphasis in original)
9. Having found it difficult to accept her testimony on its rt 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 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 appellant."
::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 3338. It is also relevant to refer to the judgment of the 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:
.
"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 of 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.
rt
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 Section 417 of IPC and offence of criminal intimidation punishable under Section 506 part I of IPC. "
39. In view of the ratio laid down in the cases mentioned above and discussion held by us above, in our considered view, it cannot be said the prosecution was able to prove beyond reasonable doubt that the accused had either kidnapped the prosecutrix from the lawful guardianship of her parents or had committed forcible sexual intercourse with her. Besides perusing the records of the case, we have also perused the judgment passed by learned trial Court in detail. Learned trial Court ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP 34 after taking into consideration entire evidence which was produced on record by the prosecution has by way of a reasoned and speaking judgment disbelieved the case of the prosecution and acquitted the .
accused by holding that the prosecution could not prove beyond reasonable doubt that the accused was guilty of charges alleged against him.
40. In our considered view also, on the basis of material of produced on record by the prosecution, it could not be said beyond reasonable doubt that the accused in fact was guilty of the charges framed against him. Accordingly, keeping in view the fact that the rt accused has got the benefit of being acquitted by the learned trial Court and further that the State has not been able to persuade us to differ from the view that was taken by the learned trial Court in the case, while upholding the judgment passed by learned trial Court, we dismiss the present appeal being devoid of any merit.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge September 16, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:14:29 :::HCHP