Himachal Pradesh High Court
State Of H.P vs Kuldeep Singh @ Chhotu on 13 June, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 328 of 2011 Reserved on 02.05.2024 .
Date of Decision: 13th June, 2024
State of H.P. ....Appellant
Versus
Kuldeep Singh @ Chhotu ....Respondent
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge.
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? yes
For the Appellant : Mr. Pawan Nadda, Additional
Advocate General.
For the Respondent : Mr. Nimish Gupta, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment dated 30.05.2011 passed by the learned Additional Sessions Judge, Fast Track Court, Chamba, District Chamba, H.P. (learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 511 read with Section 376 of IPC (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
::: Downloaded on - 13/06/2024 20:31:50 :::CIS 22. Briefly stated, the facts giving rise to the present appeal are that the victim (name being withheld to protect her .
identity) was studying in class sixth in Government Middle School, Maluda. She was returning to her home on 12.10.2009 when the accused met her on the way. He took her in the jungle and tried to rape her. The victim, however, extricated herself from the clutches of the accused and ran away to her home. She narrated the incident to her family members. Her father filed an application (Ex-PW4/A) before the Pradhan Gram Panchayat, Tappar, which was forwarded to the police. The police registered the FIR (Ex-PW14/A). Yudhbir Singh (PW16) conducted the investigation. The victim was sent for her medical examination with Lady Constable Kusum Lata. Dr. Arti Sharma (PW1) conducted her medical examination. She preserved the samples and handed them over to the police official. According to Dr Arti Sharma, it was not possible to opine whether the rape was committed upon the victim or not, but it was also not possible to rule out the possibility of the rape. She issued the MLC (Ex-
PW1/A). She also advised the radiological examination of the victim to determine her age. Dr. N.K Surya (PW5) went through the X-rays (Ex-PW5/B to Ex-PW5/C) and opined that the victim ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 3 was aged below 11 years. He issued the report (Ex-PY). Yudhbir Singh (PW16) went to the spot and prepared the site plan (Ex-
.
PW16/A). He arrested the accused. He filed an application (Ex-
PW16/B) to obtain the birth certificate of the victim. However, it was found that the birth and death register was not deposited with the Registrar. He obtained the birth certificate (Ex-PW10/B) from the Government Primary School, Maluda. He also obtained a birth certificate (Ex-PW9/B) from Government Middle School, Chakra, Block Banikhet (Chamba). He visited Gram Panchayat, Tappar and filed an application (Ex-PW7/A).
He obtained a copy of the birth certificate of the victim (Ex-
PW7/B). He also obtained the abstract of the attendance register from the school (Ex-PW9/A). The samples were sent for chemical examination to SFSL, Junga and the result (Ex-PX) was issued showing that human semen was detected on the underwear of the accused and blood was detected on the vaginal swab of the victim. The statements of the remaining witnesses were recorded as per their version. After the completion of the investigation, the challan was prepared and presented before the Court of learned JMFC, Dalhousie who committed it for trial to the Court of learned Sessions Judge from where it was assigned ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 4 to the learned Additional Sessions Judge, Fast Track Court, Chamba. (the learned Trial Court) .
3. The learned Trial Court charged the accused with the commission of an offence punishable under Section 511 read with Section 376 of IPC. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 16 witnesses to prove its case. Dr Arti Sharma (PW1) conducted the medical examination of the victim. The victim (PW2) narrated the incident. Her mother (PW3) and her father (PW4) were told about the incident by the victim. Dr. N.K. Surya (PW5) conducted victim's radiological examination to determine her age. Vipan Thakur (PW6) medically examined the accused and found no abnormality. Manoj Kumar (PW7) proved the birth certificate of the victim. Sudarshan Kumar (PW8) was the Vice President of the Gram Panchayat to whom the complaint was made by the victim's father. Surinder Kumar Sharma (PW9) provided the birth certificate and the attendance record of the victim. Kanta Devi (PW10) also provided the birth certificate, admission and withdrawal register and the certificate (Ex. PW-10/B). HC Roop ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 5 Singh (PW11) recorded the statements of the witnesses. Naresh Kumar (PW12) carried the parcels to SFSL, Junga. MHC Bhajan .
Singh (PW13) was posted as MHC in the police station with whom the case property was deposited. ASI Husan Lal (PW14) signed the FIR. Kanwar Singh Guleria (PW15) prepared the challan and presented it before the Court. Yudhbir Singh (PW16) conducted the investigation.
5. The accused in his statement recorded under Section 313 of Cr.PC admitted that the victim was studying in class sixth and she used to return to her home on her foot. He denied the rest of the prosecution case in its entirety. He stated that he had a dispute with the victim's parents over the construction of the house on 10.10.2009/11.10.2009 as he was raising a wall, despite the resistance by the victim's parents. A false case was planted against him due to the enmity. The accused was innocent and the witnesses were interested. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the prosecution case was based upon the testimony of the victim and the circumstantial evidence. The victim had materially improved her ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 6 version. She claimed that two school children called her, after which the accused left her. However, those children were not .
examined. The victim's version that there was a passage in the jungle was not proved. The enmity between the accused and the family of the victim was established by the fact that the accused was raising construction near the house of the victim, which led to a dispute. The Medical Officer also did not find any injury marks that falsified the prosecution version; therefore, the accused was acquitted.
7. Being aggrieved from the judgment passed by the learned trial Court, the present appeal has been filed asserting that the learned Trial Court has not properly appreciated the material placed before it. Testimonies of the prosecution witnesses were rejected without any cogent reason. It was duly proved by the testimony of the victim that the accused had attempted to rape her. This is also corroborated by the medical evidence. There was a proper explanation for the delay. The learned Trial Court erred in rejecting the prosecution's version.
Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial court be set aside.
::: Downloaded on - 13/06/2024 20:31:50 :::CIS 78. We have heard Mr. Pawan Nadda, learned Additional Advocate General for the appellant-State and Mr. Nimish Gupta, .
learned counsel for the respondent-accused.
9. Mr. Pawan Nadda, learned Additional Advocate General for the appellant-State submitted that the learned Trial Court erred in acquitting the accused. The testimony of the victim was cogent and satisfactory and proved the incident beyond reasonable doubt. Learned trial court erred in rejecting her testimony on irrelevant consideration. Hence, he prayed that the present appeal be allowed and the judgment passed by the learned trial Court be set aside.
10. Mr. Nimish Gupta, learned counsel for the respondent/accused supported the judgment passed by the learned trial court and submitted that no interference is required with the same. He submitted that the delay in reporting the matter to the police was not properly explained. The boys, who had called the victim were not examined. The shopkeepers were also not examined to prove that the victim had crossed the jungle on the date of the incident. The victim admitted that a dispute arose between her family members and the accused ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 8 when the accused was raising construction of the house. Hence, the possibility of false implication cannot be ruled out. Learned .
Trial Court had taken a reasonable view while passing the judgment which does not require any interference while exercising jurisdiction in an appeal against the acquittal.
Therefore, he prayed that the appeal be dismissed.
11. We have given considerable thought to the submissions and have gone through the records carefully.
12. The present appeal has been filed against an order of acquittal. It was laid down by the Hon'ble Supreme Court in Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561, that the Court can interfere with an order of acquittal if the judgments suffer from patent perversity, misreading of evidence or omission to consider the material on record. It was observed:
36.First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial Court.
37.This Court in the case of Rajesh Prasadv.State of Bihar1encapsulated the legal position covering the field after considering various earlier judgments and held as below:--::: Downloaded on - 13/06/2024 20:31:50 :::CIS 9
"29.After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against .
an order of acquittal in the following words :
(Chandrappa case[Chandrappav.State of Karnataka,2007) 4 SCC 415] "42.From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its conclusion, both on questions of fact and law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more like "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proven guilty by a competent court of law.Secondly, the accused ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 10 having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
.
(5) If two reasonable conclusions are possible based on the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
38. Further, in the case ofH.D. Sundarav.State of Karnataka 2023 (9) SCC 581this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section378ofCrPCas follows:--
"8.1.The acquittal of the accused further strengthens the presumption of innocence; 8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3.The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 11 Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four .
corners of the following principles:--
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
13. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
14. It was submitted that there is a delay in reporting the matter to the police which is fatal. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in State of Himachal Pradesh Versus Sanjay Kumar @ Sunny (2017) 2 SCC 51, that the delay of three years in reporting the matter in a case of sexual assault is not fatal. It was observed:-
"24. When the matter is examined in the aforesaid perspective, which in the opinion of this Court is the right perspective, reluctance on the part of the prosecutrix in ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 12 not narrating the incident to anybody for a period of three years and not sharing the same event with her mother, is clearly understandable. We would like to .
extract the following passage from the judgment of this Court in Tulshidas Kanolkar v. State of Goa, 2003(4) R.C.R. (Criminal) 964 : (2003) 8 SCC 590:
"5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. A delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, a satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle."
25. In Karnel Singh v. State of Madhya Pradesh, 1995(3) R.C.R.(Criminal) 526 : (1995) 5 SCC 518, this Court observed that:
"7...The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 13 because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathises with her. Therefore, delay in lodging .
complaints in such cases does not necessarily indicate that her version is false..."
26. Likewise, in State of Punjab v. Gurmit Singh & Ors., 1996(1) R.C.R.(Criminal) 533 : (1996) 2 SCC 384, it was observed:
"8...The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to a variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of a sexual offence is generally lodged..."
15. It was held in Sohan Singh v. State of Bihar, (2010) 1 SCC 68 : (2010) 1 SCC (Cri) 452: 2009 SCC OnLine SC 1706 that the victim has to undergo the trauma in a rape case and the delay in reporting the matter is not fatal. It was observed:
13.When FIR by a Hindu lady is to be lodged with regard to the commission of an offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR.
Precisely this appears to be the reason for the little delayed FIR. As mentioned hereinabove, the delay has already been found to be properly explained by both the courts below. Thus, we are not required to deal with this issue any more.
::: Downloaded on - 13/06/2024 20:31:50 :::CIS 1416. The victim's mother stated that victim narrated the incident to her after returning from school. She narrated the .
incident to her husband. The incident was not disclosed to any person to save the honour of the family. The inquiry was made from the accused and his mother on 16.10.2009, but they refused to acknowledge the incident. Hence, the matter was reported to Pradhan. The victim's father (PW4) stated that the victim narrated the incident to her mother. He also made inquiries from the victim about the incident. They remained silent for two days due to the shame and to save the honour of the family. They also made inquiries from the accused, but the accused left his house.
The accused was again summoned in the presence of Pradhan, but he refused to acknowledge his guilt. The accused stated that he had no fear of anybody. Hence, the application was made to Pradhan. Both the parents of the victim have consistently stated that they remained silent due to fear and shame after the incident was narrated to them by the victim. Thereafter, they tried to make inquiries from the accused and his mother but the accused refused to acknowledge the guilt and they were constrained to report the matter to the police. This explanation is acceptable. The reaction of the parents of the victim on ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 15 hearing about the incident was natural. The victim's father had not even made the report to the police but he had made the .
report to Pradhan. He is a rustic villager and his reaction to keeping the family honour intact is understandable. Therefore, the delay in the present case has been properly explained and the same cannot be said to be fatal to the prosecution case.
17. The victim (PW2) stated that she was coming to her home on 12.10.2009. She met the accused on the way to Bonkuri Morh. The accused accompanied her and told her that they would take a lift in the vehicle. The accused was known to her being a resident of her village and she used to address the accused as Bhaiya (brother). The accused asked her to walk through the jungle with him. She initially refused but the accused slapped her. The accused caught hold of her and dragged her towards the jungle. He took her to a nallah, where he attempted to rape her. The boys of the 8th class of her school called her by making a loud noise and the accused ran away. She went to the road and thereafter left for her house. She narrated the incident to her mother. She stated in her cross-examination that six children from her village attended the Government Middle School, Maluda. They used to go together. The boys were ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 16 walking behind her and she was the only female student from the village. Four boys were studying in eighth standard and one .
was in sixth standard. The accused was a driver and he used to drive the vehicle before the incident. She reached the Bonkuri Morh at 04:10 PM. She admitted that the distance between Bonkuri Morh and her house could be covered in and half-hour's walk. She stated that there are three shops at Bonkuri Morh. The other boys kept standing at Bonkuri Morh, the accused had also met her at Bonkuri Morh. The accused talked to her for about two minutes. The way through the jungle is about two to three minutes walk. The accused slapped her on the road at Bonkuri Morh. There are two ways, one goes towards Sukdain Bain and the other leads to nallah from Bonkuri Morh. She did not know the distance of Sukdain Bain from her school. She admitted that there was a shortcut from Bonkuri Morh to her village. She also admitted that another passage from Bonkuri Morh is through the main road, over which the vehicles were plying. The accused slapped her and she tried to weep but the accused threatened her not to do so. He dragged her for two to three yards and she had disclosed this fact to the police. She was wearing a school uniform. She was weeping and the accused asked her to remain ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 17 silent otherwise the boys would hear her weeping. The boys called her at about 05:00 PM without seeing her. She had not .
disclosed the names of the boys. The accused left by a shortcut through the jungle. She accompanied the boys to her home. She had not narrated the incident to the boys. She admitted that the accused was constructing a house in the village over the land located adjacent to her house. She admitted that a quarrel had taken place between her parents, uncles, aunts and the accused.
She denied that her parents, uncles and aunts had approached the panchayat regarding the construction. She denied that she had filed the case due to enmity.
18. It was submitted that her parents, uncles and aunts had a quarrel with the accused and there is an enmity between her family and the accused over the construction, which would furnish a motive for her to falsely implicate the accused. This submission is not acceptable. Her father Prem Nath (PW4) stated in his cross-examination that the accused had raised the construction of a wall of his new house on 10/11 October 2009.
He volunteered to say that he had worked as a labourer. He specifically denied that there was a dispute between his family and the accused over the construction and the accused raised the ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 18 construction despite their resistance. Similarly, the mother of the victim (PW2) denied that a quarrel had taken place between .
her family and the accused over the construction of the wall on 10.10.2009/11.10.2009. She also denied that she had prevented the accused from raising the wall but the accused had raised the wall despite her protest. She denied that she was not on visiting terms with the family of the accused. She volunteered to say that the relationships deteriorated after the present incident.
19. Therefore, the parents of the victim had categorically denied that any quarrel had taken place between them and the accused over the raising of the construction by the accused. The father of the victim had gone to the extent that he had worked as a labourer by constructing the wall which was not even suggested to be incorrect. This falsifies the version of the accused that a false case was made due to the dispute over the land.
20. It is difficult to believe that the victim's parents would have involved her in falsely implicating the accused simply because of a dispute over the raising of the wall. It was laid down by the Hon'ble Supreme Court in Bharwada ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 19 Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217: 1983 SCC (Cri) 728 that a woman in India will rarely make a false .
allegation of rape. It was observed:
9.In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male-dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution to problems cannot therefore be identical. It is conceivable in Western society that a female may level false accusations as regards sexual molestation against a male for several reasons such as :
"(1) The female may be a 'good digger' and may well have an economic motive -- to extract money by holding out the gun of prosecution or public exposure.::: Downloaded on - 13/06/2024 20:31:50 :::CIS 20
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by fantasizing or imagining a .
situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity to appease her ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win the sympathy of others.
(8) She may do so upon being repulsed."
10.By and large these factors are not relevant to India, and the Indian conditions. 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 on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not- so-sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 21 reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by society or being looked down by 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 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 acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of her upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered 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, face the court, face cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
21. It is not shown that any report was made by the victim's parents to the police or Pradhan regarding the encroachment by the accused which would have corroborated the accused's version regarding some dispute while raising ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 22 construction of the wall. Even otherwise, the enmity is a double-
edged weapon. While it furnishes a motive for false implication, .
it also furnishes a motive for the commission of crime.
22. The testimony of the victim was discarded by the learned Trial Court on the ground that the detail of the attempt to rape narrated by the victim in the Court was not mentioned in the FIR lodged by her father. The testimony of the victim could not have been rejected on this ground. It is difficult to believe that the victim would have given the graphic details of the incident to her father, keeping in view the relationship between her and her father. Secondly, even if such details were mentioned, the father who was already feeling ashamed due to the incident would not have produced such details in the complaint made to Pradhan. Thirdly, the FIR was lodged by the father of the victim and not by the victim and the victim could have been contradicted only by her previous statement under Section 145 of the Indian Evidence Act, and not by the statement of a third person over which she had no control. It was laid down by the Hon'ble Supreme Court in Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, (2004) 1 SCC 184: 2004 SCC (Cri) 269: 2003 SCC OnLine SC 1243 that a witness can be contradicted ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 23 with his previous statement and not the statement of another witness. It was observed:
.
11.Coming to the plea that the contradictions noticed by the trial court were ocular vis-à-vis the medical evidence, we find on reading of the judgment it is not to be so.
Section 145 of the Indian Evidence Act, 1872 (in short "the Evidence Act") applies when the same person makes two contradictory statements. It is not permissible in law to draw adverse inference because of alleged contradictions between one prosecution witness vis-à-vis statements of other witnesses. It is not open to the court to completely demolish the evidence of one witness by referring to the evidence of other witnesses. A witness can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. (SeeMohanlal Gangaram Gehaniv.State of Maharashtra[(1982) 1 SCC 700: 1982 SCC (Cri) 334: AIR 1982 SC 839] .) As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the Evidence Act only. Section 145 has no application where a witness is sought to be contradicted not by his own statement but by the statement of another witness.
23. It was laid down by the Hon'ble Supreme Court in Phool Singh Vs State of Madhya Pradesh 2022 (2) SCC 74, that a conviction can be recorded on the sole testimony of the victim if the same is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. It was observed: -
::: Downloaded on - 13/06/2024 20:31:50 :::CIS 24"This extract is taken from Phool Singh v. State of M.P., (2022) 2 SCC 74 : (2022) 1 SCC (Cri) 346 : 2021 SCC OnLine SC 1153 at page 80 .
8. In Ganesan [Ganesan v. State, (2020) 10 SCC 573 : (2021) 1 SCC (Cri) 76] , this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paras 10.1 to 10.3, it is observed and held as under : (Ganesan case [Ganesan v. State, (2020) 10 SCC 573 :
(2021) 1 SCC (Cri) 76] , SCC pp. 578-82) "10.1. Whether, in the case involving sexual harassment, molestation, etc. can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 :
(2010) 3 SCC (Cri) 639] , it is observed in paras 9 to 14 as under : (SCC pp. 195-98) '9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice.
The Court observed as under : (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on a 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 ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 25 must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must .
be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court 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."
10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 26 accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the .
prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under : (SCC p. 597, para 12) "12. It is well settled 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. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional.
However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."
11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 27 that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as .
under : (SCC pp. 394-96 & 403, paras 8 & 21) "8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as 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. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...
*** ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 28
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the .
statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 29 which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 .
SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54 : 1952 SCR 377] .
14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.' 10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750] . In para 22, it is observed and held as under : (SCC p. 29) '22. [Ed. : Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8- 2012.] In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 30 starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural .
and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 31 materials for holding the offender guilty of the charge alleged.' "
(emphasis in original) .
9. In Pankaj Chaudhary [State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 : (2019) 4 SCC (Cri) 264] , it is observed and held that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of the prosecutrix should not be doubted by the court merely on basis of assumptions and surmises. In para 29, it is observed and held as under : (SCC p. 587) "29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] ]. It is well settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898] ]."::: Downloaded on - 13/06/2024 20:31:50 :::CIS 32
10. In Sham Singh v. State of Haryana [Sham Singh v. State of Haryana, (2018) 18 SCC 34 : (2019) 3 SCC (Cri) 129] , it is observed that testimony of the victim 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 the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In paras 6 and 7, it is observed and held as under : (SCC pp. 37-38) "6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] (SCC p. 403, para 21).] ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 33
7. It is also by now well settled 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 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. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725] .)"
24. It was submitted that the victim was confronted with her previous statement and hence, her credit has been impeached in the Court. Learned Trial Court has rightly rejected her testimony due to the improvements in her statement. This submission cannot be accepted. Section 155 (3) of the Indian ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 34 Evidence Act provides the procedure for impeaching the credit of a witness. It reads as under:-
.
"155. Impeaching credit of the witness.
The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:-
xxxx (3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
xxxxxxx"
25. Section 155 (3) shows that the credit of a witness can be impeached by the proof of a former statement inconsistent with any part of his evidence.
26. Thus, it is apparent that before the credit of a witness can be impeached, proof of a previous statement is necessary. It was laid down by the Bombay High Court about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R. 965 that the previous statement has to be proved before it can be used. It was observed:
"The words "if duly proved" in my opinion, clearly show that the record of the statement cannot be admitted in evidence straightaway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness; and the provisions of Section ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 35 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course, I do not mean to say that, if the particular police officer who recorded the .
statement is not available, other means of proving the statement may not be availed of, e.g., evidence that the statement is in the handwriting of that particular officer."
27. It was laid down by Hon'ble Supreme Court in Muthu Naicker and Others etc Versus State of T.N. (1978) 4 SCC 385, that if the witness affirms the previous statement, no proof is necessary, but if the witness denies or says that he did not remember the previous statement, the investigating officer should be asked about the same. It was observed:-
"52. This is the most objectionable manner of using the police statement and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that from amongst those accused mentioned in examination-in-chief there were some whose names were not mentioned in the police statement and if the witness affirms this no further proof is necessary and if the witness denies or says that she does not remember, the investigation officer should have been questioned about it."
28. The Gauhati High Court held in Md. Badaruddin Ahmed versus State of Assam, 1989 Cri. L.J. 1876 that if the witness denies having made the statement, the portion marked by the defence should be put to the investigating officer and his version should be elicited regarding the same. It was observed:-
::: Downloaded on - 13/06/2024 20:31:50 :::CIS 36"15. The learned defence counsel has drawn our attention to the above statement of the Investigating Officer and submits that P.W. 4 never made his above statement .
before the police and that the same being his improved version cannot be relied upon. With the utmost respect to the learned defence counsel, we are unable to accept his above contention. Because, unless the particular matter or point in the previous statement sought to be contradicted is placed before the witness for an explanation, the previous statement cannot be used in evidence. In other words, drawing the attention of the witness to his previous statement sought to be contradicted and giving all opportunities to him for explanation are compulsory. If any authority is to be cited on this point we may conveniently refer to the case of Pangi Jogi Naik v. State reported in AIR 1965 Orissa 205 : (1965 (2) Cri LJ 661).
Further in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012 : (1959 Cri LJ 1231) it was also held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the statement sought. One contradiction was recorded by the police, it should be marked and exhibited. However, in the case at hand, there is nothing on the record to show that the previous statement of the witness was placed before him and that the witness was given the chance to explain.
Again, his previous statement was not marked and exhibited. Therefore, his previous statement before the police cannot be used. Hence, his evidence that when he turned back he saw the accused Badaruddin lowering the gun from the chest is to be taken as his correct version.
16. The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in conformity with S.145 of the Evidence Act to contradict the evidence ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 37 given by the prosecution witness at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness .
to that part of the contradictory statement which he made before the police and questioned him whether he did in fact made that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc., (any identification mark) and when the investigating officer who had actually recorded the statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and obviously, after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the Investigating Officer would prove the statements B-1 to B-1, B-2 to B-2 which are then exhibited as Ext. D. 1, Ext. D. 2 etc. (exhibition mark) in the case and will go into evidence, and may, thereafter, be relied on by the accused as contradictions. In the case, in hand, as was discussed above, the above procedure was not followed while cross-examining the witness to his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the fun from his chest to be his correct version.
29. The Andhra Pradesh High Court held in Shaik Subhani alias Bombay Subhani and Another Versus State of Andhra Pradesh, 2000 Cri. L.J. 321 that putting a suggestion to the witness and the ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 38 witness denying the same does not amount to putting the contradiction to the witness. The attention of the witness has to .
be drawn to the previous statement and if he denies the same, the same is to be got proved by the investigating officer. It was observed:-
"24. As far as contradictions put by the defence is concerned, we would like to say that the defence counsel did not put the contradictions in the manner in which they ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount to putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under S. 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention had to be drawn to the statement made by such witness before the police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the investigation officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the investigation officer."
30. The Calcutta High Court took a similar view in Anjan Ganguly & Ors. Versus State of West Bengal, 2013 (3) DMC 760 and held:-
"22. It was held in State of Karnataka v. Bhaskar Kushali Kothakar & Ors., (2004) 7 SCC 487 that if any statement of the witness is contrary to the previous statement recorded under Section 161, Cr.P.C. or suffers from the ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 39 omission of certain material particulars, then the previous statement can be proved by examining the Investigating Officer who had recorded the same. Thus, .
there is no doubt that for proving the previous statement Investigating Officer ought to be examined, and the statement of the witness recorded by him, can only be proved by him and he has to depose to the extent that he had correctly recorded the statement, without adding or omitting, as to what was stated by the witness.
xxxxx
24. Proviso to Section 162(1), Cr.P.C. state in clear terms that the statement of the witness ought to be duly proved. The words if duly proved, cast a duty upon the accused who want to highlight the contradictions by confronting the witness to prove the previous statement of a witness through the police officer who has recorded the same in an ordinary way. If the witness in the cross-examination admits contradictions then there is no need to prove the statement. But if the witness denies a contradiction and the police officer who had recorded the statement is called by the prosecution, the previous statement of the witness on this point may be proved by the police officer.
In case the prosecution fails to call the police officer in a given situation Court can call this witness or the accused can call the police officer to give evidence in defence. There is no doubt that unless the statement as per proviso to sub-section (1) of Section 162, Cr.P.C. is duly proved, a contradiction in terms of Section 145 of the Indian Evidence Act cannot be taken into consideration by the Court.
25. To elaborate on this further, it will be necessary to reproduce Section 145 of the Indian Evidence Act. "S. 145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it intended to contradict him ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 40 by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
.
26. Therefore, it is appropriate that before the previous statement or statement under Section, 161, Cr.P.C. is proved, the attention of the witness must be drawn to the portion in the statement recorded by the Investigating Officer to bring to light the contradiction, a process called confrontation.
27. Let us first understand what is proper procedure. A witness may have stated in the statement under Section 161, Cr.P.C. that 'X murdered Y'. In the Court witness stated, 'Z murdered Y'. This is a contradiction. Defence Counsel or Court and even prosecution if the witness is declared hostile having resiled from the previous statement, is to be confronted to bring contradiction on record. The attention of the witness must be drawn to the previous statement or statement under Section 161, Cr. P.C., where it was stated that 'X murdered Y'. Since Section 145 of the Indian Evidence Act use the word being proved, therefore, in the course of the examination of the witness, previous statement or statement under Section 161, Cr.P.C. will not be exhibited but shall be assigned a mark, and the portion contradicted will be specified. The trial Court in the event of contradiction has to record it as under.
28. Attention of the witness has been drawn to portions A to A of the statement marked as 1, and confronted with the portion where it is recorded that 'X murdered Y'. In this manner by way of confrontation contradiction is brought on record. Later, when Investigating Officer is examined, the prosecution or defence may prove the statement, after Investigating Officer testify that the statement assigned mark was correctly recorded by him at that stage statement will be exhibited by the Court. Then contradiction will be proved by the Investigating Officer by stating that the witness had informed or told ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 41 him that 'X murdered Y' and he had correctly recorded this fact.
29. Now a reference to the explanation to Section 162, .
Cr.P.C. which says that an omission to state a fact or circumstance may amount to contradiction. Say for instance if a witness omits to state in Court that 'X murdered Y', what he had stated in a statement under Section 161, Cr.P.C. will be a material contradiction, for the Public Prosecutor, as the witness has resiled from the previous statement, or if 'W' has been sent for trial for a charge of murder, omission to state 'X murdered Y' will be a material omission, and amount to contradiction so far defence of 'W' is concerned. At that stage also the attention of the witness will be drawn to a significant portion of the statement recorded under Section 161, Cr.P.C. which the witness had omitted to state and note shall be given that attention of the witness was drawn to the portion A to A wherein it is recorded that 'X murdered Y'. In this way, the omission is brought on record. The rest of the procedure stated earlier qua confrontation shall be followed to prove the statement of the witness and the fact stated by the witness.
30. Therefore, to prove the statement for contradiction it is necessary that the contradiction or omission must be brought to the notice of the witness. His or her attention must be drawn to the portion of the previous statement (in the present case statement under Section 161, Cr.P.C.)
31. In the present case, Investigating Officer Yudhbir Singh (PW16) was not asked about the omission in the statement of the victim. Hence, the omission has not been properly proved and the testimony of the victim cannot be discarded due to omission.
::: Downloaded on - 13/06/2024 20:31:50 :::CIS 4232. The learned Trial Court held that the students who had called the victim and the shopkeepers at Bonkuri Morh were .
not examined and an adverse inference has to be drawn against the prosecution for withholding them. This finding of the learned Trial Court is not sustainable. The Court has to see whether the testimony of the witnesses in the Court is believable or not and if it finds that the same is not believable and requires corroboration from some other source, the examination of other witnesses or production of other evidence may be necessary.
When the witness is of sterling quality requiring no corroboration, the failure to lead the evidence to corroborate the testimony of a witness will not be fatal to the prosecution case.
33. Further, there is a difference between the non-
examination of a witness cited in the charge sheet by the Public Prosecutor and the non-examination of a witness by the Investigating Officer. While in the former case, the Court may draw the adverse inference as per Section 114 of the Indian Evidence Act, in the latter case, no such inference can be drawn because it is a case of defective investigation for which the victim cannot be penalized. It was laid down by the Hon'ble Supreme Court in Srichand K. Khetwani v. State of Maharashtra, ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 43 1966 SCC OnLine SC 32 : (1967) 1 SCR 595: AIR 1967 SC 450: 1967 Cri LJ 414 : (1967) 2 SCJ 178 that no adverse inference can be drawn .
for failure to collect the evidence. It was observed:
8.Further, an adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence.
When no such evidence has been obtained, it cannot be said what that evidence could have been and therefore no question of presuming that that evidence would have been against the prosecution, under Section 114, illustration (g) of the Evidence Act, can arise.
34. This position was reiterated in Chand Khan v. State of U.P., (1995) 5 SCC 448: 1995 SCC (Cri) 915 wherein it was observed:
"In the FIR, which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Parveen had, in defending herself, given a blow to one of the accused with a vegetable-cutting knife.
In view of the above statement recorded in the FIR, the Investigation Officer (PW 16) ought to have taken steps to seize the knife even if PW 5 had not produced it for, one of the essential requisites of a proper investigation is the collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the court to hold the investigation to be perfunctory or tainted affecting the entire trial, in the case of the latter the court may legitimately draw a presumption in accordance with Section 114(g) of the ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 44 Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution .
case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eyewitnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the FIR it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative."
35. In the present case also the Investigating Officer had not examined the school children and it was a case of defective investigation at the worst which will not affect the testimony of the victim.
36. The victim's mother (PW3) corroborated her version.
She stated that the victim reached the home on 12.10.2009 after school and narrated the incident to her. There is nothing in her cross-examination to doubt her testimony and the same has to be accepted as correct.
37. Dr Arti Sharma (PW1) found that the hymen was reddish. She admitted in her cross-examination that this colouration could be due to some infection. However, that is an alternative hypothesis and the colouration of the hymen would ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 45 provide corroboration to the testimony of the victim regarding the attempt of rape.
.
38. Learned Trial Court adversely commented upon the conduct of the Medical Officer because, she had initially mentioned in the MLC that it was not possible to say whether the rape had been committed or not, which was scored off by her to add, "however, the possibility of rape cannot be excluded". She has given a valid explanation for the same in her cross-
examination. She stated that she wrote the opinion but had preserved the samples. Hence, she scored off the opinion in the MLC and reserved it till the receipt of the report of the Chemical Examiner. She had initially decided not to take the samples but since the police had requested her to do so, therefore, she collected the samples. This is a plausible explanation. She had found the hymen intact and had sufficient material to say that it was not possible to say whether rape had been committed or not.
She had taken the sample and if, she reserved her final opinion till the receipt of the report from the Chemical Analyst her conduct could not be faulted. Further, she stated that she added the line that the possibility of rape cannot be excluded at the request of the police. This is a misreading of the evidence. The ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 46 police filed an application (Ex-PW1/B) seeking a specific opinion on whether the victim was raped or not and if she was raped, the .
duration was also to be specified. Since the police were seeking the opinion regarding the possibility of the rape, therefore, the Medical Officer cannot be faulted for adding the line that the possibility of the rape cannot be ruled out. Hence, her testimony could not have been rejected on these two considerations.
39. The victim was radiologically examined to determine her age by Dr. N.K. Surya (PW5) who went through the X-ray and opined that the victim was below 11 years of age. This witness was not cross-examined at all, which means that his testimony was not disputed by the defence. Therefore, it is duly proved on record that the victim was a minor on the date of the incident and incapable of giving consent.
40. The learned Trial Court held that the circumstantial evidence should unerringly lead to the proof of the guilt of the accused and any severance of the chain would make the prosecution case doubtful. There can be no quarrel with this proposition of law. However, the present case is based upon the direct evidence of the victim and has to be accepted or rejected ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 47 on the intrinsic/extrinsic worth of the victim's testimony. The .
circumstances would only lend assurance/corroboration to the victim's testimony and the law related to circumstantial evidence would not apply to the present case.
41. Hence, the learned Trial Court had rejected the testimony of the victim on irrelevant consideration. It had taken a view that could not have been taken by any reasonable person.
It was not a possible view as contended by learned counsel for the defence but a view that did not emerge from the material on record. The only plausible view which could have been taken on the basis of the evidence led before the learned Trial Court was that the accused had raped the victim and this Court is bound to interfere with the same even while deciding an appeal against acquittal.
42. Consequently, the present appeal is allowed. The judgment passed by the learned Trial Court is set aside and the accused is convicted of the commission of an offence punishable under Section 511 read with Section 376 of IPC. Let, he be heard ::: Downloaded on - 13/06/2024 20:31:50 :::CIS 48 on the quantum of sentence on 8th July 2024.
(Vivek Singh Thakur) .
Judge (Rakesh Kainthla) Judge .... June, 2024 (Veena/Shamsh Tabrez) r to ::: Downloaded on - 13/06/2024 20:31:50 :::CIS