Uttarakhand High Court
Dr. Anish Kumar Bharti vs State Of Uttarakhand on 18 May, 2023
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 634 of 2019
Dr. Anish Kumar Bharti .... Appellant
Vs.
State of Uttarakhand ....Respondent
Present:
Mr. Bharat Singh, Advocate for the appellant.
Mr. V.K. Jemini, Deputy Advocate General and Mr. Lalit
Miglani, AGA for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Instant appeal is preferred against the judgment and order dated 11.11.2019/14.11.2019, passed in Sessions Trial No. 76 of 2018, State Vs. Dr. Anis Kumar Bharti, by the court of Additional Sessions Judge/FTSC, Haridwar. By it, the appellant has been convicted under Section 376 (2) (e) and Section 506 IPC and sentenced as hereunder:-
(i) Under Section 376 (2) (e) IPC- To undergo rigorous imprisonment for a period of ten years with a fine of Rs.50,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of six months.
(ii) Under Section 506 IPC- to undergo rigorous imprisonment for a period of two years.2
2. Facts necessary to appreciate the controversy, briefly stated, are as follows. The victim, aged about 33 years was working in some establishment at Haridwar. In a rail accident, she had lost both of her legs, below knee. She would use a three-wheeler scooty for her movements. At the relevant time, the appellant was working in a hospital at Haridwar. On 26.07.2017, the victim visited the appellant for her medical check-up. She was given medicines by the appellant and she was again called on 30.07.2017. On 30.07.2017, again, when the victim visited the appellant, the appellant indulged in some conversation revealing that he is unmarried and he proposed the victim. He again called the victim on 31.07.2017, after 02:00 p.m., as the OPD closes at 02:00 p.m.
3. On 31.07.2017, again the victim visited the appellant. The appellant proposed her and told that in case they establish physical relation, it would not be bad because ultimately they are going to be married. On that date, at 03:00 p.m., the appellant coaxed the victim and did "Galat Kaam" with her. This, the appellant repeated on 06.08.2017 in the hospital. On that date, he also made a video. Thereafter on multiple occasions, he did "Galat Kaam" with the victim. On 09.09.2017, the victim asked the appellant for marriage, but he evaded those queries of the victim. 3 Finally, the victim revealed the incidents to her father, who approached the police on 11.09.2017. When nothing happened, he moved an application on 13.09.20217 under Section 156 of the Code of Criminal Procedure, 1973 ("the Code"), based on which Case Crime No. 554 of 2017 under Sections 376(2)(e) and 506 was lodged at Police Station Jwalapur, District Haridwar. The investigation was carried out. The victim was medically examined on 09.10.2017 by PW 10 Dr. Neelima. In the column of history, the medical examination report reveals that at that time, the victim revealed it to the doctor that she was in a relationship with the appellant for the last one and a half months; they established physical relations four times.
4. On 13.10.2017, the victim was examined under Section 164 of the Code. The vaginal swabs were taken and in pathology report nothing was detected. Certain articles were also taken by the Investigating Officer ("IO") for forensic examination, but semen or blood could not be detected on these articles, as per the Forensic Science Laboratory Report. The IO prepared the site plan of the clinic of the appellant as well as of his flat, where, according to the prosecution case, on 12.08.2017, the appellant raped the victim.
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5. After investigation charge sheet under Sections 376(2)(e), 312, 506 IPC was filed.
6. On 11.04.2018, charge under Sections 376(2)(e), 312 and 506 IPC was framed. The appellant denied the charge and claimed trial.
7. In order to prove its case, the prosecution examined ten witnesses, namely, PW 1, father of the victim, PW 2, the victim, PW 3 Constable 1507 Satendra Kumar, PW 4 SI Satendra Negi, PW 5 Dr. Poonam Pandey, PW 6 Constable 356 Jasruddin Khan, PW 7 Paras Dhiman, PW 8 Tanisha, PW 9 SI Sandeepa Bhandari and PW 10 Dr. Neelima.
8. The appellant was examined under Section 313 of the Code. According to the appellant, the victim has falsely deposed against him. He is already married having two children. He was appointed as the Manager of the hospital, therefore, under a conspiracy he has been implicated.
9. After hearing the parties, by the impugned judgment and order, the appellant has been convicted under Sections 376(2)(e) and 506 IPC and sentenced as aforesaid. Aggrieved, the appellant preferred the instant appeal. 5
10. Heard learned counsel for the parties and perused the record.
11. Learned counsel for the appellant would submit that the prosecution has not been able to prove its case beyond reasonable doubt. He would raise the following points in his submission.
(i) According to the FIR, the informant PW 1, father of the victim, had already given a report before the police, but those reports are not on record.
(ii) If the victim visited the appellant on 26.07.2017, the prescription slip is not on record, which could have revealed as to whether the victim was again called by the appellant on 30.07.2017.
(iii) On 13.09.2017, the application under Section 156(3) of the Code was given by the PW 1, father of the victim, but on the same date, the PW1, father of the victim and the PW 2, the victim both visited the appellant again. If FIR had already been lodged, why PW 1, father of the victim and PW 2, the victim again visited the appellant on that date.
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(iv) The victim was medically examined by PW 10 Dr. Neelima on 09.10.2017. On that date, the victim did not reveal it to the doctor that she was raped or her consent was procured under any "misconception of fact". The victim had already revealed to the doctor PW 10 Dr. Neelima that she had been in a relationship with the appellant for the last one and a half months and they established physical relations four times.
(v) If any video was allegedly prepared by the appellant on 06.08.2017, it is not on record.
12. On the other hand, learned State Counsel would submit that the statement of the victim is consistent. She was a patient; a physically challenged woman. She had visited the appellant, who is a doctor, for her treatment, but the appellant violated the fiduciary relationship and committed rape on the helpless woman. Learned State Counsel would also raise the following points in his submission:-
(i) The statement of PW 1 Victim is fully reliable, it does not require any corroboration.7
(ii) The law is well settled that in such cases, conviction can be recorded only on the basis of statement of the victim.
(iii) The prosecution case has been supported by the statement of PW 5 Dr. Poonam Pandey, who has stated that at the instance of the appellant, the victim telephoned her and she prescribed medicines for abortion.
(iv) PW 8 Tanisha was a pharmacist, who
has also supported the prosecution
case. According to her, the appellant
had once asked her to give the abortion
kit and she provided it to him.
(v) PW 10 Dr. Neelima has also supported
the prosecution case.
(vi) If physical relations are established
under the pretext of marriage, it
amounts to rape.
13. Learned State Counsel would submit that the prosecution has been able to prove its case beyond reasonable doubt. Therefore, there is no reason to make any interference with the conviction and sentence.8
14. PW 2 is the victim. According to her, on 21.03.1997 in a rail accident, her both legs were amputated below knee. She was in a private job in a hospital. She would move on a three-wheeler scooty. On 26.07.2017, for the first time, she along with her father PW 1 visited the hospital where the appellant was working. The appellant got her a free registration slip and provided some medicines to her. On 27.7.2017, the appellant telephoned her and asked about her condition. PW 2, the victim has stated that on 30.07.2017, she was called in his cabin by the appellant, as a last patient at 03:00 p.m. When she entered into the cabin of the appellant, her father was stopped by the attendant to enter inside the cabin. In the cabin, the appellant was all alone. The appellant checked her up and told that he is unmarried and he proposed her. According to the PW 2, the victim, she told the appellant that she would not be a good match for a doctor. The appellant again asked her to visit the hospital next day after 02:00 p.m. when the OPD are closed.
15. PW 2, the victim would state that third time on 31.07.2017, when she visited along with her father PW 1, the appellant took her in the cabin and told that he intends to marry the victim and there is nothing wrong if he establishes physical relations. PW 2 would tell that she 9 declined for it but forcibly the appellant gagged her mouth with a cloth, like handkerchief, and bolted the OPD gate from inside and raped her on the stretcher. Thereafter he threatened the victim. After 15-20 minutes, the victim came out of the room, but out of shame she could not reveal it to her father. The appellant thereafter started talking to her over telephone.
16. PW 2, the victim has stated that fourth time on 06.08.2017, she visited the appellant, who took her inside the cabin, established physical relations, made a video of it and threatened her that in case she would not talk to him on daily basis, he would make public the intimate video. According to PW 2, the victim, on 12.08.2017 also, she all alone visited the appellant, who took her in his flat showing her intimate video, which he had made on 06.08.2017 and did oral sex with her in his flat. The appellant also threatened her. He also gave her medicines for abortion.
17. According to the PW 2, the victim, on 03.09.2017, the appellant also gave her medicines for abortion. PW 2, the victim would submit that on 09.09.2017, she asked the victim about marriage, but the appellant evaded these queries. Thereafter, she revealed these incidents to her father. She was examined before a Magistrate also. She 10 proved her statement recorded under Section 164 of the Code. This witness also proved the wrapper of the medicine, which according to her, she was given by PW 5 Dr. Poonam Pandey.
18. PW 1 is the father of the victim. He has proved the FIR, which was lodged by him.
19. PW 3 Constable Satendra Kumar and PW 4 SI Satendra Negi have stated about the arrest of the appellant.
20. PW 5 Dr. Poonam Pandey has stated that once the appellant had called her and told that she would be contacted by some woman; her problem may be solved. Thereafter a woman called her and inquired about abortion. She advised her about the medicine for abortion.
21. PW 6 Constable Jasruddin Khan is the police constable, who lodged the FIR and recorded it in the general diary.
22. PW 7 Paras Dhiman is the attendant deputed with the appellant. According to him, he was working with the appellant. He tells that the victim had visited the appellant 11 once and her OPD card for free treatment was prepared. She used to visit the doctor.
23. PW 8 Tanisha has stated that once the appellant had called her and asked for Mifty Abortion Kit, which she gave to the appellant.
24. PW 9 SI Sandeepa Bhandari is the IO. She has stated about the steps taken in the investigation. She proved the site plan. According to her, a CD containing the conversation of the appellant and the victim was also taken into possession by her. She has also stated about the blood samples taken by her, which were sent for forensic examination. After investigation, she submitted the charge sheet.
25. PW 10 Dr. Neelama is the doctor, who examined the victim on 09.10.2017. According to her, the victim had revealed it to her that she was in a relationship with the appellant and they established physical relations four times; she was also given abortive medicine by the appellant.
26. The appellant has been convicted under Section 376(2)(e) IPC. There are certain presumptions, which are 12 raised in such matters as provided under Section 114-A of the Indian Evidence Act, 1872 ("the Evidence Act"). Section 114-A of the Evidence Act reads as hereunder:-
"114A. Presumption as to absence of consent in certain prosecution for rape. --In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
Explanation.--In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860)."
27. A bare reading of Section 114-A of the Evidence Act reveals that in the offences under Section 376(2)(e), when sexual intercourse by an accused is proved and the question of consent is in issue, the court shall presume that the victim did not consent. The words "shall presume" have been defined under Section 4 of the Evidence Act. According to it, whenever it is provided by this Act that the Court shall presume a fact, it may either regard such fact as proved, unless and until it is disproved. In fact, it is a rebuttable 13 presumption. Unless otherwise proved, the court shall presume existence of those facts.
28. Rape is an act, which, in fact, dehumanizes the body and soul of the victim. In the case of State of Punjab Vs. Gurmit Singh and others, (1996) 2 SCC 384, the Hon'ble Supreme Court, inter alia, observed that "the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to 14 convict an accused where her testimony inspires confidence and is found to be reliable."
29. In the case of State of M.P. Vs. Dayal Sahu, (2005) 8 SCC 122, the Hon'ble Supreme Court summed up the principles with regard to the appreciation of evidence of the prosecutrix in such cases. In para 14 of the judgment, the Hon'ble Supreme Court observed as hereunder:-
"14. A plethora of decisions by this Court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the courts 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 courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non- examination of doctor and non-production of doctor's report would not be fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities."
30. It is also settled law that whatever charge of rape is made, the statement of the victim should not be treated as a gospel truth.
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31. In the case of State of Himachal Pradesh Vs. Sanjay Kumar alias Sunny, (2017) 2 SCC 51, the Hon'ble Supreme Court, in para 30 observed as hereunder:-
"30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which the testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases."
32. In the case of Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675 also, the Hon'ble Supreme Court discussed the condition of the victim in rape cases and observed that in no manner such victims could be called as accomplice. The Hon'ble Supreme Court in para 20 of the judgment observed as hereunder:-
"20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime 16 against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks."
33. The law is well settled. If the testimony of the victim is reliable, in such cases, corroboration is not required. But at the same time, it has to be examined as to whether the testimony inspires confidence. Apart from the statements, there would be other attending circumstances, which may help the court to appreciate the evidence.
34. In the case of K. Ponnuswamy Vs. State of Tamil Nadu, (2001) 6SCC 674, the Hon'ble Supreme Court discussed the concept of "proved", as defined under Section 3 of the Act as well as the presumption with regard to existence of certain facts as given under Section 114 of the Evidence Act. In para 27 of the judgment, the Hon'ble Supreme Court observed as hereunder:-
"27. In support of his submission Mr Rao relied upon the authority of this Court in the case of Krishnanand v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190] In this case this Court has held as follows:
(SCC pp. 830-31, para 26)............................................... ...................................................................................... ..................................................................................... ..................................................................................... ....................................................................................17
There can be no dispute with the legal proposition.
However, let us see what is meant by "proved". Section 3 of the Evidence Act defines "proved" as follows:
"3. 'Proved'.--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
Further, Section 114 of the Evidence Act reads as follows:
"114. Court may presume existence of certain facts.--The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case."
35. According to the prosecution, the appellant procured the consent of the victim under the pretext of marriage. Therefore, it is the prosecution case that the consent so procured is not a valid consent, as defined under Section 90 IPC. Section 90 IPC, reads as hereunder:-
"90. Consent known to be given under fear or misconception.--A consent is not such a consent as is intended by any section of this Code, if the 18 consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
36. In fact, the concept of consent has come up for discussion on umpteen times before the Hon'ble Supreme Court. In the case of Rao Harnarain Singh and others Vs. The State, AIR 1958 P & H 123, the Hon'ble Supreme Court observed on this aspect as hereunder:-
"6. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent Submission of her body under the influence of fear or terror is no consent. There is a difference between consent 19 and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has wished as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. On the material placed before me it cannot reasonably be argued that Mst. Surti was an assenting victim to the outrage perpetrated on her, on the fatal night. It is also, not possible for me to accept the contention of the counsel for the accused petitioners, that Kalu Ram, the husband of the girl, had ??? and voluntarily accepted the inportunabe overtures, said to have been made to him, by Rao Harnarain Singh with full awareness of and willing concurrence in the proposed acts to which his wife was to be subjected by the accused persons."
37. The aspect of concept has further been discussed by the Hon'ble Supreme Court in the case of Deepak Gulati (supra). In para 21 of the judgment, the Hon'ble Supreme Court observed as hereunder:-
"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear 20 distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."
38. Undoubtedly, a consent to be lawful has to be based on reasons accompanied by deliberations, the mind weighing as an balance the good and evil of each side. Is it such a case?
39. One very important factor need to be noted in this case is that the appellant was not assisted by any counsel 21 for his defence. He himself cross examined the witnesses. Some of the suggestions are, in fact, incriminatory, but that alone may not be a ground to return a finding of guilt.
40. On 26.07.2017, it is not the prosecution case that any misdemeanor was done by the appellant. It is the prosecution case and as stated by the PW2, the victim that on 30.07.2017, when the victim visited the appellant he told her that he is unmarried and proposed her. On 31.07.2017, what had happened? It may be gathered from the statements of the victim recorded under Section 164 of the Code as well as her statement given in the court. Needless to say, the statement under Section 164 of the Code may be used for corroboration as well as for contradiction, as held by the Hon'ble Supreme Court in the case of R. Shaji Vs. State of Kerala, (2013) 14 SCC 266. In the case of Shahji (supra), the Hon'ble Supreme Court, inter alia, observed that as follows:-
"Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which 22 he has been brought, and what he must disclose in his statements under Section 164 CrPC."
41. In addition to it, the FIR has been recorded by the PW1, the father of the victim, which has been proved by PW1, the father of the victim. He has stated that he was told about the incident by the victim herself. In para three of the FIR it is recorded that on that date, the appellant proposed the victim, coaxed her and established physical relations with her.
42. This Court is conscious of the fact that scrutiny of the statement of a victim in a rape case should be done with much caution. Minor contradictions here and there may not have great significance. It may also not be expected from the rape victim that she may be consistent in each minute detail of the incident. What happened if such incident takes place? The mental condition of the victim may not be lost sight of. She may not be expected to minutely observe every detail. But then, scrutiny has to take place to a certain extent to examine the veracity and credibility of the evidence. After all, a person is facing trial for an offence like rape. There is presumption against such accused under Section 114 A of the Evidence Act.
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43. As per para three of the FIR, no force was used on the victim on that date. She was not made unconscious. In fact, according to this FIR, the victim was persuaded, induced and coaxed to submit herself for physical relations. Even if it so, it may be said that the consent is vitiated. It may be said that the consent is not based on reasons. It may also be said that such consent is not given after evaluating the good and evil of the act or its consequences. But, there is another version. This version given in para three of the FIR, as to how did for the first time physical relation was established, is not as such reflected by the victim in her statement under Section 164 of the Code.
44. In her statement under Section 164 of the Code, which was recorded on 13.10.2017, the victim tells that on 31.07.2017, the appellant proposed her and told that if he establishes physical relations with her, there would be nothing bad in it. Thereafter, according to the statement of the victim recorded under Section 164 of the Code, the appellant placed something like a handkerchief on her mouth, due to which she became unconscious. She could then realize that the appellant laid her on a stretcher and did galat kaam with her. As per the statement of the victim recorded under Section 164 of the Code, the appellant did not induce, coax or persuade her to submit herself for 24 physical relations. But, he made her fell unconscious by some means by placing a cloth like handkerchief on her mouth. These both versions in the FIR and in the statement of the victim recorded under Section 164 are not consistent. In fact, they are diagonally opposite.
45. In the court, the victim has another version. In para four of her statement, she tells that on 13.07.2017, the appellant told her that since they were to marry, there is nothing bad if they establish physical relations. According to PW2, the victim she declined for it. Thereafter, the appellant forcibly placed a cloth like handkerchief on her mouth, bolted the door from inside and raped her on the stretcher. In this statement, the victim has not stated that she fell unconscious. In her statement, the victim has not stated that she was coaxed, cajoled, persuaded or induced to submit herself for sexual intercourse. Here she speaks of force. There are three versions now. According to the FIR, the victim was coaxed to submit for sexual intercourse. According to her statement, recorded under Section 164 of the Code, she was made unconscious by the appellant and thereafter, she could realize that some galat kaam was done with her on a stretcher by the appellant. But, in court she tells that by force, the appellant placed a cloth like handkerchief on her mouth, bolted the door from inside and 25 raped her. Why is it so? It doubts the veracity of the statements of the victim. It doubts her credibility. Under those circumstances, this Court is of the view that the statement of the victim is not of that nature which on her own may become basis for conviction. Her statement cannot be made sole basis of conviction. The question is as to whether it finds corroboration from any other evidence.
46. PW1 the father of the victim and PW2, the victim, both have stated that on 31.07.2017, when the victim entered into the cabin of the appellant, her father also wanted to accompany her. But, she was stopped by the attendant. The attendant is PW7 Paras Dhiman. In his cross examination, he has stated that he did not stop the father of the victim to enter into the cabin. Now, if the appellant used force on the victim on 31.07.2017 inside his cabin and bolted the door and her father was stopped by the attendant for entering into the cabin, the question is as to why the victim did not raise the alarm? Her father was in fact waiting outside. The question would also arise as to how and why the father of the victim, who was stopped from entering into the cabin, did not sense something abnormal. These questions are unanswered. It doubts the prosecution case. 26
47. PW2 the victim was asked as to why she again visited the appellant on 31.07.2017, when on 30.07.2017, the appellant was speaking something unusual with her. In page five bottom, PW2 the victim would tell that because she wanted treatment, therefore, she visited the appellant. She was further asked, as to why did she visit the appellant on 06.08.2017. She has stated that she was under threat (The statement of the victim, page seven opening lines). But till 06.08.2017, there was no video, as per the prosecution case itself. What was the threat? Was it real?
48. If the rape was committed after intoxicating the victim, as told by PW2 the victim in her statement under Section 164 of the Code, why her father had not noticed that the victim is intoxicated? Why he could not realize it?
49. PW10 Dr. Neelima is the doctor who examined the victim on 09.10.2017. To her, the victim never revealed that by "misconception of fact" or by force she was forced to submit forsexual intercourse by the appellant. She was categorically asked about it. In Page two, para two, she has categorically stated that the victim did not tell her that the appellant established physical relations under the pretext of marriage. The statement of PW10 Dr. Neelima does not support the prosecution case. This was the first opportunity 27 for the victim to speak about the incident to some other person except her father. FIR was lodged on 13.09.2017; medical examination was done on 09.10.2017; thereafter, on 13.10.2017, she was examined under Section 164 of the Code, when she revealed about the incident, which as discussed hereinabove is doubtful.
50. A question may also be asked, as to why the victim did not raise alarm on day one i.e. on 31.07.2017, when she was forcibly raped inside the cabin by the appellant. The victim would tell that she could not tell anything to her father out of shame. The statement of PW7 Paras Dhiman is important, who was Attendant to the appellant. He has stated that on 26.07.2017, when the victim visited the hospital, she started shouting at the counter saying that she should be treated free. Thereafter, at the instant of the appellant, she got her OPD Registration Card for free treatment. When the appellant forcibly put a cloth like handkerchief on her mouth on 31.07.2017, and bolted the door, up till then, there was no threat; up till then, there was no video. Then, why the victim did not raise any alarm? It also doubts the prosecution case.
51. On 13.09.2017, the report was given in the court. But, PW2, the victim herself has stated that she alongwith 28 her father visited the appellant on 13.09.2017. Why was it so done? PW2, the victim also tells that on 17.09.2017 also when she was feeling something abnormal, she telephoned the doctor. If it was a case of rape, why did the victim call the offender?
52. It is the prosecution case that PW2, the victim visited the appellant for dressing, which was done in the cabin of the doctor. But, PW7 Paras Dhiman, the Attendant has stated that dressing was not done in the cabin of the doctor. In page two opening lines of his statement, PW7 Paras Dhiman, the Attendant has stated that dressing was done in Room No.7 and in the Emergency Room. He also tells that the dressing of the victim was done by one Govinda. Investigating Officer was asked as to whether he found any dressing material in the cabin of the appellant. He could not reply about it.
53. In view of the foregoing discussion, this Court is of the view that the statement of PW 2, the victim is not such statement, which may be a sole basis for conviction of the appellant. Her statement, in fact, is not reliable.
54. In the impugned judgment, in para 20, reference has been made to Section 65 of the Evidence Act and in para 29 21 of the impugned judgment, the court has recorded a finding that non-production of certificate under Section 65 of the Evidence Act does not adversely affect the case.
55. PW 9 Sandeepa Bhandari, the IO has stated that she has taken a voice recording, Compact Disc from the victim, but she has also stated that the Compact Disc was never sent for forensic examination. This witness prepared a memo of taking into custody the Compact Disc containing voice recording of the conversation between the victim and the appellant. It is Ex. A-11. Electronic evidence has not been adduced. Mere taking into custody a Compact Disc without proving its contents in the court, the Compact Disc does not prove anything.
56. What contains in the Compact Disc is recorded in Ex. A-11. According to it, in their conversation on 09.09.2017, the appellant has stated that the relationship was willingly made by the parties and on subsequent occasion, he denied of having committed any rape. The contents of Compact Disc have not been proved. But, even otherwise, Ex. A 11, which is recovery memo of taking into custody the Compact Disc by the IO reveals that the appellant did not speak anything incriminating. He has stated that the relationship was consensual. Therefore, mere 30 recovery of the Compact Disc does not support the prosecution case. The contents of recovery memo, Ex. A-11 also do not help the prosecution.
57. In view of the above, this Court is of the view that the prosecution has not been able to prove the charge against the appellant. The court below has committed an error in convicting and sentencing the appellant. Accordingly, the impugned judgment and order dated 11.11.2019/14.11.2019 deserves to be set aside and the appellant is liable to be acquitted of the charge under Sections 306(2)(e) and 506 IPC.
58. The appeal is allowed. The impugned judgment and order dated 11.11.2019/14.11.2019 is hereby set aside. The appellant is acquitted of the charge under Section 306(2)(e) and 506 IPC.
59. The appellant is in jail. Let he be set free forthwith, if not wanted in any other case.
60. The appellant shall furnish personal bonds and two sureties, each of the like amount to the satisfaction of court concerned, under section 437-A of the Code, within four weeks.
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61. Let a copy of this judgment along with lower court record be forwarded to the court concerned.
62. Let a copy of this judgment be also forwarded to the jail concerned.
(Ravindra Maithani, J.) 18.05.2023 Avneet/