Code Of Criminal Procedure vs State Of Nct Of Delhi on 8 August, 2024

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Himachal Pradesh High Court

Code Of Criminal Procedure vs State Of Nct Of Delhi on 8 August, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.107 of 2022 Date of Decision: 08.08.2024 _______________________________________________________ Parmanand .......accused Versus State of HP ... Respondent Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.

For the accused: Mr. Vijay Chaudhary, Advocate.

For the respondent: Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Instant criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, lays challenge to judgment of conviction and order of sentence dated 25.04.2022 passed by learned Sessions Judge, Mandi, District Mandi, H.P. in Session Trial No. 41/21/2015, whereby learned Court below, while holding appellant-accused (hereinafter 'accused') guilty of having committed offence punishable under Section 376 of Indian Penal Code, convicted and sentenced him to undergo rigorous imprisonment for a period of seven years and 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 pay fine to the tune of Rs. 25,000/-, and in case of default, to further undergo simple imprisonment for a period of one year.

2. Precisely, the facts of the case, as emerge from the record, are that victim-prosecutrix (name withheld to protect her identity) got her statement recorded under Section 154 Cr.P.C., alleging therein that on 06.10.2014 at about 06:00 p.m. while she had gone to feed her buffalo in the cowshed situate below her house, accused, who at relevant time, was sitting in the cowshed, gagged her mouth and committed rape upon her. She alleged that though she attempted to raise alarm, but was prevented to do so by the accused, with whom, she remained in the cowshed for more than one hour. She alleged that after one hour, she was able to escape from the clutches of the accused and, after bolting the cowshed from outside, she went to her mother-in-law Smt. Ganga Devi, who thereafter came on the spot along with victim-prosecutrix, but while they unbolted the cowshed, accused succeeded in fleeing. On the basis of aforesaid statement made by the victim-prosecutrix i.e. PW-1, Police lodged FIR Ext.PW1/A and registered a case against the accused under Section 376 of Indian Penal Code. On 07.10.2014 at about 01:15 p.m. an application Ext.PW3/A came to be addressed to Medical Officer CHC Ratti for medical examination of the victim-prosecutrix. Dr. Richa Mehrotra (PW-3), after having examined victim-prosecutrix, issued 3 MLC Ext.PW3/B qua victim-prosecutrix and PW4 Dr. R.D. Anand issued MLC Ext. PW4-B qua the accused after his medical examination. On 09.10.2014 Police got the statement of victim- prosecutrix recorded under Section 164 Cr.P.C. before Judicial Magistrate, wherein though she reiterated the contents of her statement recorded under Section 154 Cr.P.C., but improved her earlier version by stating that when she had gone to cowshed, accused, who at relevant time was sitting in the cowshed showed her knife and sexually assaulted her against her wishes.

3. After completion of investigation, Police presented challan in the competent court of law, which being prima-facie satisfied that accused has committed the crime punishable under Section 376 of Indian Penal Code, proceeded to charge him under Section 376, to which he pleaded not guilty and claimed trial.

4. Prosecution with a view to prove its case, examined as many as fifteen witnesses in total, however, for adjudication of the case at hand statements given by PW-1 to PW-4, PW-7 & PW-8 are relevant. Accused in his statement recorded under Section 313 Cr.P.C. refuted the case of prosecution in toto and claimed that he has been falsely implicated in the case. Despite sufficient opportunity, accused failed to lead evidence in defence, and as such, learned trial Court, on the basis of evidence adduced on record by the victim- 4 prosecutrix held him guilty of having committed offence punishable under Section 376 of Indian Penal Code and accordingly, convicted and sentenced him as per description given hereinabove. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside the judgment of conviction and order of sentence recorded by the learned Court below.

5. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the judgment of conviction and order of sentence recorded by the learned Court below, this Court is persuaded to agree with Mr. Vijay Chaudhary, learned counsel for the accused that learned Court below has failed to appreciate the evidence in its right perspective, as a result thereof, findings to the detriment of the accused have come to the fore. If the statements of victim-prosecutrix recorded under Sections 154, 164 Cr.P.C and thereafter, before learned trial Court are read in conjunction, there are material contradictions and inconsistencies, as such, learned Court below, while ascertaining guilt of the accused ought to have taken into consideration such statements, with great care and caution. No doubt, version put-forth by the victim-prosecutrix with regard to sexual assault against her wishes is sufficient to conclude guilt of the accused, but if statement 5 given by the victim-prosecutrix in the case at hand is read in its entirety, it is full of contradictions and inconsistencies. Trial Court, while ascertaining the guilt of an accused in such like cases, is expected to test the veracity of the statement of victim-prosecutrix, taking note of other evidence adduced on record by the prosecution to prove the guilt of the accused. Interestingly, in the case at hand, as per statements of the victim-prosecutrix recorded under S.154 Cr.P.C, on the basis of which FIR was registered and under Section 164 Cr.P.C recorded by learned Magistrate, accused was already in the cowshed and when at around 6.00 pm, victim-prosecutrix entered the cowshed, he wielded a knife, gagged her mouth and committed forcible sexual assault upon her, however, while deposing before the learned trial Court, she nowhere stated anything with regard to accused wielding knife to her. Similarly, in FIR victim-prosecutrix deposed that she remained in cowshed for almost one hour, but there is nothing to suggest that during aforesaid period of one hour, she ever attempted to raise alarm, rather she simply stated that after one hour, she went outside the cowshed and bolted the same from outside and narrated the entire story to her mother-in-law Smt. Ganga Devi. If the aforesaid version put-forth by the victim-prosecutrix is perused juxtaposing her statement given before the trial Court, it casts serious doubt about the correctness of story put-forth by the 6 victim-prosecutrix. If the statement of victim-prosecutrix is read in its entirety, it suggests that though accused Parmanand resides in the same village, but victim-prosecutrix did not know her. Most importantly, this witness in her examination-in-chief deposed that some noise was heard from outside, on which she came out from the cowshed and bolted the door from outside. Aforesaid version put-forth by the victim-prosecutrix clearly reveals that she had come out of cowshed after having heard some noise, which at relevant was coming from outside the cowshed. She nowhere stated that, while she was being raped, she ever attempted to raise alarm, rather she stated that some noise was heard from outside of the cowshed, that too by the accused but not by her. If it is so, it is not understood then why only she left the cowshed and not the accused. Most importantly, in her cross-examination, she stated that she had heard some noise, on which she put her clothes and went outside. In her cross-examination, she deposed that when her husband came to know about the incident after his return to the house, she as well as accused were taken alongwith other family members to swear before the local deity. She deposed that both of them refused to touch the Deity. She deposed that when they did not touch the Deity, then her husband and other family members insisted upon her to lodge the FIR. She also admitted that there is house of Dhani Ram in front of her cowshed, in which 7 family members of Dhani Ram also reside. She admitted that door of her cowshed opens towards the front of the house of Dhani Ram. She admitted that adjoining to the house Dhani Ram, there is house of Kali Jung, which is also in front of the cowshed. She admitted that the accused and his brother alongwith Kali Jung reside in the same house and accused is son of Kali Jung. If aforesaid version of victim- prosecutrix is taken into consideration, her earlier version with regard to her being not acquainted with the accused is falsified. In her cross- examination, she stated that she was dragged in the cowshed for a long time, however, such version of her is falsified with the statement of PW-3 Dr. Richa Mehrotra, who at the relevant time was Medical Officer and had an occasion to render Medical opinion, after examination of the victim-prosecutrix.

6. PW-2 Ganga Devi in her statement, while admitting victim-prosecutrix to be her daughter-in-law and accused to be her neighbour, deposed that at 06:00 p.m. her daughter-in-law had gone to feed her buffalo in the cowshed. She deposed that after a long time, her daughter-in-law came and told her that accused was sitting inside the cowshed and he had committed rape upon her and she had come after locking the accused inside the cowshed. On this, she went to the cowshed and when she opened the door of cowshed, accused ran away from the cowshed. Most importantly, this witness deposed 8 that when her son came at about 06:00 p.m. he decided to report the matter to the Police, which version of her otherwise appears to be incorrect for the reason that allegedly victim-prosecutrix had gone to feed her buffalo at 06:00 p.m. and thereafter, as per her own version, she remained in the cowshed for more than one hour, meaning thereby, when alleged incident had happened, husband of the victim- prosecutrix was at home. Most importantly, PW-2 in her cross- examination admitted that on account of doubt created in the mind of husband of the victim-prosecutrix, both the victim-prosecutrix and accused were taken to the temple. Though accused was ready to touch the Idol of Deity, but the victim-prosecutrix refused to touch the Idol of Deity. She further stated that when victim-prosecutrix did not touch the Deity, then she and her son insisted her to lodge report in the Police Station. If the versions put-forth by the victim-prosecutrix and PW-2 are read in conjunction, this Court is persuaded to agree with Mr. Vijay Chaudhary, learned counsel for the accused, that there are lot of contradictions and inconsistencies and FIR was lodged by the victim-prosecutrix on the insistence of her husband and mother-in- law.

7. PW-6 Bansi Ram-husband of the victim-prosecutrix deposed that when he returned from Dogri at about 06:30 p.m. which is at a distance of around 2 Kms from his house, he saw from the 9 road that his mother Ganga Devi, wife Bati Devi were standing in front of the cowshed. He deposed that his wife was frightened and she told him that accused Parmanand, who was present in the Court, after gagging her mouth with his hand, committed rape upon her in the cowshed. He also deposed that his wife also told him that accused was having knife in his hand and he (accused) also extended threats to her. If the cross-examination conducted upon this witness is read in its entirety, it clearly reveals that accused Parmanand was not only the neighbourer of the victim-prosecutrix and her family, rather they were well acquainted with each other. This witness categorically admitted that in front of his cowshed there is house of Dhani Ram, the door of which is towards the front of his cowshed, in which he resides with other family members and adjoining to his cowshed, there is house of Kali Jung. He admitted that Kali Jung is having two sons and one daughter. He deposed that he went to his cowshed at 04:00 p.m. and returned at 06:30 p.m. He admitted that on that day accused stated that his wife was telling lie and he had not done anything wrong with her and he was ready to go to temple to swear before the Idol. He admitted that accused entered the temple and touched the Deity and swore that he has not done anything with the victim. He admitted that accused did not flee from the temple, when he asked him (accused) to touch the Deity. He also admitted that his wife did not 10 touch the Deity. He also admitted that brother of the accused and his brother had contested elections of the Gram Panchayat, wherein his brother had lost the election. Most importantly, this witness admitted that their families are not on visiting terms with each other. Even version put-forth by this witness, if read in conjunction with the statement given by the victim-prosecutrix, suggests that there are material contradictions and inconsistencies.

8. PW-7 Lekh Ram, who is a carpenter by profession deposed that he knows the accused Parmanand, who is also a carpenter. He deposed that on 06.10.2014 he alongwith the accused had gone for the work of door and windows at Village Sangani. He deposed that on 06.10.2014 after doing the work, he and accused left Village Sangani to their house. He deposed that at Gharbasra, passage to their houses is bifurcated and at 07:00 p.m. accused proceeded on his way towards his home, whereas he proceeded to his house from Gharbasra. In his cross-examination, he admitted that on 07.10.2014, he came to know that accused Parmanand, while he was on his way to home, had committed rape upon victim-prosecutrix in her cowshed. In his Cross-examination, he categorically stated that on that day, he and accused had done overtime at the place of work and had reached their houses between 07:00 to 08:00 p.m. If the version put-forth by the aforesaid witness is taken into consideration, 11 accused and this witness were together till 07-08:00 p.m. If it is so, version put-forth by the victim-prosecutrix that she was dragged in the cowshed at 06:00 p.m. becomes highly doubtful.

9. Similarly, statement of PW-8 Premi Devi, who happens to be sister-in-law of victim-prosecutrix creates serious doubt with regard to correctness of story put-forth by the victim-prosecutrix. She deposed that victim-prosecutrix told her through telephone that accused Parmanand had committed rape upon her in her cowshed and thereafter she came to Village Leda and alongwith victim- prosecutrix went to Police station Ratti. In her cross-examination, she categorically admitted that she received a telephonic call from victim- prosecutrix at 06:00 p.m. She categorically denied the suggestion put to her that victim-prosecutrix called her at 07:30 p.m. She further stated that she nowhere stated in her statement that she received a telephonic call from victim-prosecutrix at 07:30 p.m. She deposed that she reached the house of victim-prosecutrix at 07:00 p.m. and thereafter victim-prosecutrix was taken to temple by her husband and other family members to touch the Deity. She deposed that victim- prosecutrix did not touch the Deity and stated that she was raped by the accused. As per statement given by this witness, she had received telephonic call from the victim-prosecutrix at 06:00 p.m. stating that she had been raped by the accused. The version put forth 12 by this witness, if is accepted, it contradicts the deposition of the victim-prosecutrix where she stated that she had gone to cowshed to feed the buffalo at 6.00 pm and remained in the cowshed for one hour. Had the victim-prosecutrix remained confined in cowshed or one hour from 6.00 pm to 7.00 pm, how she could have called the aforesaid witness, at 6.00 pm, and told her that she has been raped. Since victim-prosecutrix remained in cowshed for more than one hour, it is not understood how she could make telephonic call to her sister- in-law, PW-8 Premi Devi at 06:00 p.m. PW-8 Premi Devi during her cross-examination, when was confronted with the statement Mark D- 1, portion A to A, forcefully reiterated that she had received telephonic call from the victim-prosecutrix at 06:00 p.m. not 07:30 p.m. and she had reached the house of victim-prosecutrix at 07:00 p.m.

10. From the conjoint reading of the statements made by aforesaid material prosecution witnesses, this Court is persuaded to agree with Mr. Vijay Chaudhary, learned counsel for the accused, that prosecution has not been able to prove beyond reasonable doubt that on the date of alleged incident, victim-prosecutrix was sexually assaulted against her wishes by the accused, rather version of victim- prosecutrix suggests that she had come out of the cowshed after having heard some noise. Though none of the prosecution witnesses except victim-prosecutrix has stated anything specific with regard to 13 noise or persons, who allegedly were making noise outside the cowshed, but victim-prosecutrix, while deposing before learned trial Court, categorically stated that accused heard noise and thereafter, she put on her Salwar and went outside the cowshed. If victim- prosecutrix was illegally confined by the accused in the cowshed and there was a noise outside, which was heard by the accused from outside, it is not understood how victim-prosecutrix was let go off by the accused, without any resistance and thereafter she was not seen by anyone coming out of the cowshed.

11. PW2 Ganga Devi, mother-in-law of the victim-prosecutrix stated that when she opened the cowshed, accused succeeded in fleeing, but such version of her also becomes doubtful on account of statements made by other witnesses, who stated that after alleged incident, both victim-prosecutrix and accused were taken to the temple. In case accused had fled away from the spot, there is nothing on record to suggest that after alleged incident ,matter was reported to the other villagers, especially family members of the accused. There was otherwise no question of fleeing of the accused from the spot. Statement of PW-6 Bansi Ram-husband of the victim- prosecutrix clearly reveals that he after having suspicion about his wife and accused, made them to come present before Deity to swear whether some untoward incident had happened or not? Though 14 accused appeared before the Deity and was ready to swear, but victim-prosecutrix refused to swear in the name of the God. As per own statement of victim-prosecutrix and PW-2 Ganga Devi, when victim-prosecutrix refused to swear before the deity, FIR came to be lodged against the accused.

12. At this stage, it would be apt to take note of statement of PW-8 Premi Devi, sister-in-law of the victim-prosecutrix, who stated that victim-prosecutrix did not touch the Deity. She voluntarily stated that victim-prosecutrix did not touch the Deity as she admitted that she had been raped by the accused, meaning thereby, prior to allegation of rape, there was suspicion in the minds of family of the victim-prosecutrix that both victim-prosecutrix and accused had some illicit relation and they of their own volition were inside the cowshed. Most importantly, victim-prosecutrix in her statement recorded before the Court admitted that her statement under Section 164 Cr.P.C. was not recorded as per her version, rather she was forced to give the statement. Similarly, this Court finds that medical evidence adduced on record nowhere corroborate the version put-forth by the victim- prosecutrix.

13. PW-3 Dr. Richa Mehrotra, Medical Officer, CH Nurpur, District Kangra, H.P. after having examined victim-prosecutrix, issued MLC Ext.PW3/B. Though the victim was brought before aforesaid 15 Officer with a history of sexual assault on 06.10.2014 at 06:00 p.m., but after general examination, no injury was noticed on the face, mouth, oral mucosa or the neck. No abrasion marks were observed on the body of the victim-prosecutrix, save and except two pin head size abrasion marks over the right wrist joint. She categorically opined that no fresh bleeding was seen qua injury over the right wrist joint. Victim-prosecutrix herself gave history of broken bangles during the assault. She opined that Gait of victim was normal and she had two children, last child having been born eight years back. After having conducted genital examination, no injury marks were present but discharge was present. She opined that victim-prosecutrix was married and habitual of sexual intercourse. No injury marks were found except, two pin head sized abrasions above right wrist joint on anterior side, which were within the probable duration of 24 hours. After having perused RFSL Report No. 1009 RFSL Bio(228)14, doctor opined that as per report, human semen was found on Ext.(Cervix slide of prosecutrix), Ext. (Right fornix slide of prosecutrix), Ext. (Cervix slide of prosecutrix and Ext. (Introtus slide of prosecutrix). In all these slides human semen was found. Though PW-3 Dr. Richa Mehrotra opined that there was a recent sexual intercourse with the victim-prosecutrix, but there is nothing in her report to suggest that recent sexual intercourse, if any, was committed by the accused that 16 too forcibly. Though there is mention of semen found on the slides of victim-prosecutrix, but it is nowhere mentioned whose semen was found thereupon, rather report reveals that blood and human semen of the accused did not match with that of specimen from slides of victim-prosecutrix. There is another aspect of the matter that medical examination of the victim-prosecutrix was conducted on 07.10.2014, meaning thereby, she remained in house on previous night alongwith her husband and other family members.

14. Statement of PW-4 Dr. R.D Anand, MO CHC Ratti, District Mandi, HP, may not be of much relevance, especially when he has only opined with regard to capacity of accused to perform sexual intercourse.

15. If the MLC issued by PW-3 Dr. Richa Mehrotra is perused juxtaposing claim of the victim-prosecutrix that she was dragged on floor, there appears to be merit in the contention of Mr. Vijay Chaudhary, learned counsel for the accused, that had accused dragged victim-prosecutrix on floor, she must have suffered injuries on her back or other parts of the body, which were found totally missing in the case at hand.

16. PW-5 Mr. Tek Chand, Assistant Director Biology and Serology Department RFSL Mandi, H.P. in his cross-examination admitted that shirt and salwar of the victim-prosecutrix were not torn 17 from anywhere, which fact further casts doubt with regard to story put- forth by the victim-prosecutrix that she was dragged by the accused, while she was confined in the cowshed. Most importantly, victim- prosecutrix in her statement admitted that her cowshed is made of mud and stone and its floor is also Kactha, if it is so, she would have suffered injuries on her back, if she was dragged on the date of alleged incident by the accused.

17. Having scanned entire evidence, as discussed supra, this Court has no hesitation to conclude that learned Court below has failed to appreciate the evidence in its right perspective, rather merely on the basis of statement given by the victim-prosecutrix, it straightway proceeded to hold accused guilty of his having committed offence punishable under Section 376 of Indian Penal Code. On account of material contradictions and inconsistencies in the statements of prosecution witnesses, especially victim-prosecutrix, Court ought to have exercised utmost caution, while looking into the correctness of statement of victim-prosecutrix for holding the accused guilty of having committed offence under Section 376 of IPC.

18. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in C. Magesh and others v. State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:-

"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy; ..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses."

19. At this stage, Mr. Vishal Panwar, learned Additional Advocate General, vehemently argued that statement of victim- prosecutrix is sufficient to conclude guilt of the accused. There cannot be any quarrel with the proposition of law laid down by the Hon'ble Apex Court in catena of pronouncements that in case of rape, evidence of prosecution must be given predominant consideration, and finding of guilt in case of rape can be based upon the uncorroborated evidence for the victim-prosecutrix, but if the story put-forth by the victim-prosecutrix appears to be improbable and belies logic, placing reliance upon her sole statement would be violence to the very principles, which govern the appreciation of evidence in a criminal matter. Reliance in this regard is placed upon 19 judgment rendered by Hon'ble Apex Court in Tameezuddin @ Tammu Vs. State of NCT of Delhi, 2009 (15) SCC 566, wherein it has held as under:

"9.It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable.

10.We note from the evidence that PW.1 had narrated the sordid story to PW.2 on his return from the market and he had very gracefully told the appellant that everything was forgiven and forgotten but had nevertheless lured him to the police station. If such statement had indeed been made by the PW2 there would have been no occasion to even go to the police station. Assuming, however, that the appellant was naive and unaware that he was being lead deceitfully to the police station, once having reached there he could not have failed to realize his predicament as the trappings of a police station are familiar and distinctive. Even otherwise, the evidence shows that the appellant had been running a kirana shop in this area, and would, thus, have been aware of the location of the Police Station. In this view of the matter, some supporting evidence was essential for the prosecution's case.

11. As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in Court as witnesses though their statements had been recorded during the course of the investigation.

12.In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken. In this background the evidence of the defence witness, Mohd. Zaki becomes very relevant. This witness testified that there was no occasion for PW.2 to have come to the factory as no payment was due to him on any account. The courts below were to our mind remiss in holding that as no written accounts had been maintained by Mohd. Zaki and no receipt relating to any earlier payment to PW.2 had been produced by him, his 20 testimony was not acceptable, the more so, as the factory was a small one and Mohd. Zaki was a petty factory owner.

13.We also see from the orders passed by this Court from time to time and particularly the Order of 25th October, 2004 that the counsel for the appellant had pointed out that though the appellant had been sentenced to imprisonment for a term of seven years, he had already exceeded that period but was still in custody and he was accordingly bailed out after verifying this fact on 16th November 2004. In normal circumstances we would not have passed a detailed order in this background but as an allegation of rape, is one of the most stigmatic of crimes, it calls for intervention at any stage."

20. Reliance is also placed on judgment rendered by the Hon'ble Apex Court in Rajoo v. State of MP, AIR 2009 SC 858, wherein it has been held as under:-

9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect 21 to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth.

Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.

10. Undoubtedly, the charge under section 366 of the IPC has not been made out as per the findings of the courts below. We, however, find that the evidence of rape is distinct from the other charge and the matter should be examined in that background. We are, accordingly, of the opinion that merely because the accused have been acquitted for the offence punishable under Section 366 of the IPC is ipso-facto no reason to disbelieve the entire prosecution story on this solitary ground.

11. The veracity of the story projected by the prosecution qua allegations of rape must, thus, be examined. It has come in the evidence of PW8 that the prosecutrix had been married while a child but her gauna had not been performed as her husband, had, in the meanwhile, taken a second wife. The Doctor PW1 Dr. Smt. Christian has, however, opined that the prosecutrix was so habituated to sexual intercourse that it was not possible to ascertain as to when she had last been subjected to it. It has also come in the evidence of PW8 that the police had often questioned the prosecutrix as to why she was indulging in prostitution. The prosecutrix herself also admitted that she had once been arrested in the Ajanta Hotel case but had been bailed out by Shri Bansal, Advocate. It is indeed surprising that though, as per her allegations, all 13 accused had assaulted her one after the other, but the doctor did not find even a scratch on her person. The trial court and the High Court have not accepted the plea raised by the accused 22 as to the adverse character of the prosecutrix as the evidence on this score was not conclusive. We are of the opinion, however, that in the light of the facts mentioned above, it is probable that the prosecutrix was indeed involved in some kind of improper activity.

12. The other evidence in the matter would have to be examined in this background. Primary emphasis has been placed by Mr. Ranjit Kumar on the identification of the accused. It has been submitted that the identification itself was faulty whereas the State Counsel has argued to the contrary and submitted that as the accused were known to the prosecutrix she had been in a position to identify them. The question of identification is, to our mind, the determining factor in this case. In the FIR the prosecutrix has named four of the accused as having committed rape on her, they being Nandoo, Bindu, Pintoo and Raju. PW8, who was unsure, as to the identity of the accused, however, stated that she knew Nandoo, Pyaru, Pawan, Pintoo and Raju but conceded that she had not known any of the accused at the time of the incident but after the police had enquired about the names of the boys in her presence, she had come to know who they were. It is also significant that the Court had recorded a note that even after she had named the five accused she had been able to identify only Pawan and she had not been able to identify any of the other accused. She also stated that some of the boys had been arrested on the day of the incident and that she had been called to visit the police station several times to identify them and that the police had often threatened her and her daughter that if they did not come to the police station they would file a case against them. In the last paragraph of her examination-in-chief PW8 clearly stated that she was not in a position to identify the boys at the time of incident or even in Court. It is significant that the prosecutrix, her mother and all the accused were residents of Ruabandha and as per the prosecutrix's evidence she was aware of the identity of only a few of them whom she had named in the FIR. It is also significant that in her examination-in-chief the prosecutrix stated that at the time when she had been taken away on the Luna she did not know the names of the accused who were taking her away and that she was not personally acquainted with any of the boys at the time of incident and did not know their names and was not in a position to recognize them. In paragraph 46 of the evidence, this is what she had to say: "Police personnel had taken me to Police Station at about 2.30 O'clock in the night. Immediately after lodging the report there, they came at the place of occurrence taking me there and had 23 got identified the accused persons having taken them out of their houses. Then the police personnel had taken the accused persons also at the Police Station. In that night nine boys had been brought having arrested. Remaining five boys had been brought by the police on the second day. I had identified those also in the Police Station. After arrest of nine-ten boys, they had taken near the house where incident had taken place and they had asked to identify the remaining boys. Then I had identified 4-5 boys from that crowd. I had gone to the Police Station having sit in Daga with all those boys. Witness now states that 2-3 boys had been arrested from the houses, remaining 6-7 boys had been arrested from Dance site, remaining 4-5 boys had been brought having arrested on the second day. I had not gone to the houses of the boys for identification. Police personals had called them in the hotel and I used to identify them there." We are of the opinion that in the light of the categorical statements of the two main prosecution witnesses, the identification of the accused is extremely doubtful.

13. The test identification parade conducted by PW5 Sakharam Mahilong, Naib Tehsildar is equally farcical. This witness stated that 36 persons in all, including 9 of the accused, had been associated with the parade held by him on 30th December 1986 but he also admitted that the 9 accused had been covered with black and brown coloured blankets. To our mind the only inference that can be drawn from this admission is that similar and distinctive blankets had been provided so as to facilitate the identification of the accused. Moreover, in the light of the fact that the witness had been shown to the prosecutrix not once but several times while they were in police custody, the identification parade held by PW5 is even otherwise meaningless.

14. The learned State counsel has, however, placed special emphasis on the fact that the underwear handed over by the accused to the investigating officer were found by the chemical examiner to be stained with semen which corroborated the prosecution story. In the light of the fact that we have found the identification of the accused to be doubtful, the recovery of the underwear becomes meaningless. But we have nevertheless chosen to examine this submission as well. In this connection, we have gone through the evidence of Durga Prasad Shukla PW10, the investigating officer. We notice that the underwear of some of the accused had been produced by them on 29th December 1986 whereas the remaining accused had likewise produced their underwear on the 2nd 24 of January 1987. We find it some what difficult to believe that the accused had themselves provided the evidence of having committed rape soon after the incident, and even more surprising, that some of them had done so three days after the incident. The recovery of the stained underwear is a factor which, by itself, cannot support a case of rape against the accused.

15. On an examination of the entire evidence, we are of the opinion that it would be difficult to conclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins.

16. As already noted above Raju, son of M. Billya did not file an appeal in this court. In the light of the fact that we have found the prosecution story to be doubtful, Raju too must be given the benefit of doubt in the light of the judgments in Raja Ram & Ors. Vs. State of M.P. (1994) 2 SCC 568, Arokia Thomas vs. State of T.N. (2006) 10 SCC 542 and Suresh Chaudhary etc. vs. State of Bihar (2003) 4 SCC 128. We, accordingly allow the appeals and acquit the present appellants, as also Raju son of M. Billya.

21. Reliance is further placed on judgment rendered by the Hon'ble Supreme Court in Radhu v State of Madhya Pradesh, (2007) 12 SCC 57, wherein it has been held as under:-

"6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual 25 intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."

7. Sumanbai (PW-3) stated in her evidence that when she entered the hut of Gyarsibai responding to her invitation, Radhu who was inside the hut, shut the door and forcibly committed rape by inserting his penis twice; that when she started crying, Radhu gagged her with cloth and kept her confined in the room during the night and released her only the next day morning; and that thereafter she went and informed her mother as to what happened. This version is in consonance with her report of the incident recorded in the FIR (Ex.P5) which was read over and accepted by her in her evidence. Lalithabai (PW-4) stated that when her daughter returned on Tuesday morning and told her that Radhu had raped her by force the whole night. Significantly, the prosecutrix, in her cross-examination, has given a completely different version. She stated that when Radhu committed the 'bad' act by inserting his penis twice, she fainted and remained unconscious throughout the night; that she came back to her senses only the next day morning; that she did not know what happened during the night; that when she regained consciousness and walked out of the place, Radhu was present but Gyarsibai was elsewhere. She also asserted that she told the police that she had become unconscious when the 'bad' act was committed. If she lost consciousness when the alleged act was committed, and if she regained consciousness only the next morning and left the house of Gyarsibai without any obstruction,the prosecution case that the prosecutrix was gagged by Radhu, that the prosecutrix was confined in his house during the entire night by use of force by Radhu, that she was freed by Radhu only the next morning, becomes false.

8. In her examination-in-chief, Sumanbai categorically stated that Gyarsibai called her to her house when she was going to the shop of Sony for buying sugar and tea. In her oral report of the incident registered as FIR (Ex.P5), 26 she had stated that she went to Gyarsibai's house, while on the way to the shop. But in the cross-examination, she stated that Gyarsibai called her when she was coming back from the shop after purchasing tea and sugar. She also stated that she could not tell the value of the goods purchased by her at that time. Thus, the prosecution case that the incident occurred when she was going to the shop to purchase tea and sugar is not proved.

9. Sumanbai stated that the incident took place on Monday night, that she returned on Tuesday morning and her father returned on Wednesday, that she and her father went to the house of Gulabbai and Ram Lal at Barud and she narrated the incident to Ramlal, that Ramlal also accompanied them to the Barud Police Station. Sumanbai's mother Lalita Bai (PW4) also stated that on Wednesday her husband took their daughter Sumanbai to Barud Police Station, and that after returning from the Police Station, her husband told her that they had also taken her brother Ram Lal, who resided at Barud, to the Police Station. Mangilal (PW-7) father of Sumanbai, did not mention about Ram Lal or his wife Gulabbai in his examination in chief. However, in his cross-examination, he stated that he went to the house of his relative Ramlal at Barud and Ramlal accompanied them to the police station. But, Ram Lal was not examined. Ram Lal's wife Gulab Bai, examined as PW-5, was declared hostile and she denied that Mangilal and Sumanbai visited their house and informed them about the incident. She also stated that neither she nor her husband accompanied Sumanbai to the Police Station. Therefore the prosecution case that Sumanbai and her father informed Ramlal about the incident on 30.1.1991 appears to be doubtful.

10. Sumanbai's mother Lalithabai states that when Sumanbai did not return on Monday night, she and her son-in-law Ramesh searched for her up to 3 a.m. on Tuesday morning. In her cross-examination, she stated that she searched for Sumanbai in the village, and that she also asked Gyarsibai about Sumanbai. In the cross-examination, she stated that she did not remember whose houses she went to enquire about her daughter, and that she did not remember whether she had gone to anyone's house at all. Lalithabai further stated that she told her son-in-law Ramesh about the incident and asked him to go to Chacharia to inform her husband about the incident and to bring him back. Mangilal also said his son-in-law came and informed him about the incident. Sumanbai stated that her brother-in-law was sent to bring back her father; that her brother-in-law's name is Ramesh but the SHO wrongly wrote his name as Dinesh in the FIR. 27 Significantly, Dinesh or Ramesh, brother-in- law of Sumanbai was not examined to corroborate that there was a search for Sumanbai on the night of 28.1.1991 or that he was appraised about the incident by his mother-in- law on 29.1.1991 and that he went and informed his father-in-law about the incident.

11. Thus the two persons (other than the parents) who were allegedly informed about the incident namely Ramesh (on 29.1.1991) and Ramlal (on 30.1.1991) were not examined and consequently there is no corroboration.

12. Dr. Vandana (PW-8) stated that on examination of Sumanbai, she found that her menstrual cycle had not started and pubic hair had not developed, and that her hymen was ruptured but the rupture was old. She stated that there were no injuries on her private parts and she could not give any opinion as to whether any rape had been committed. These were also recorded in the examination Report (Ex. P8). She, however, referred to an abrasion on the left elbow and a small abrasion on the arm and a contusion on the right leg, of Sumanbai. She further stated that she prepared two vaginal swabs for examination and handed it over along with the petticoat of Sumanbai to the police constable, for being sent for examination. But no evidence is placed about the results of the examination of the vaginal swabs and petticoat. Thus, the medical evidence does not corroborate the case of sexual intercourse or rape.

13. We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongful confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration.

14. Lalithabai says that when Sumanbai did not return, she enquired with Gyarsibai. Sumanbai also says that she used to often visit the house of Gyarsibai. She says that Radhu's parents are kaka and baba of her mother and Radhu was her maternal uncle. The families were closely related and their relationship was cordial. In the circumstances, the case of the prosecution that Gyarsibai would have invited Sumanbai to her house to abet her son Radhu to rape Sumanbai and that Gyarsibai was present in the small house during the entire night when the rape was committed, appears to be highly improbable in the light of the evidence and circumstances.

15. The FIR states that one Dinesh was sent by Lalithabai to fetch her husband. Lalitabai and Mangilal have stated that they did not know anyone by the name Dinesh. Sumanbai stated in her evidence that on 29.1.1991, as her father was away, her brother- in-law went to bring back her father, that the name of her brother-in-law is Ramesh, but the SHO wrongly wrote his name as 'Dinesh'. But none else mentioned about such a mistake. Neither Ramesh nor Dinesh was examined.

16. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutrix was indebted to Radhu's father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai's father Mangilal was indebted to Radhu's father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt.

17. We, therefore, allow the appeal, set aside the judgments of the courts below and acquit the accused of all charges."

22. The Hon'ble Supreme Court in Rai Sandeep @ Deepu v. State (NCT) of Delhi, 2012 (8) SCC 21, has held that sterling witness should be of a very high quality and caliber, whose version should, therefore, be unassailable. The Hon'ble Apex Court has held that 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 29 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 starting point till the end. Relevant paras of the judgment is reproduced herein below:-

22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber 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 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 everyone 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 similar such tests to be applied, it can 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 30 order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

23.On the anvil of the above principles, when we test the version of PW- 4, the prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests mentioned above. There is total variation in her version from what was stated in the complaint and what was deposed before the Court at the time of trial. There are material variations as regards the identification of the accused persons, as well as, the manner in which the occurrence took place. The so-called eye witnesses did not support the story of the prosecution. The recoveries failed to tally with the statements made. The FSL report did not co-relate the version alleged and thus the prosecutrix failed to instill the required confidence of the Court in order to confirm the conviction imposed on the appellants.

24. With the above slippery evidence on record against the appellants when we apply the law on the subject, in the decision reported in State of Punjab v. Gurmit Singh & Ors. (supra), this Court was considering the case of sexual assault on an young girl below 16 years of age who hailed from a village and was a student of 10th standard in the Government High School and that when she was returning back to her house she was kidnapped by three persons. The victim was stated to have been taken to a tubewell shed of one of the accused where she was made to drink alcohol and thereafter gang raped under the threat of murder. The prosecutrix in that case maintained the allegation of kidnapping as well as gang rape. However, when she was not able to refer to the make of the car and its colour in which she was kidnapped and that she did not raise any alarm, as well as, the delay in the lodging of the FIR, this Court held that those were all circumstances which could not be adversely attributed to a minor girl belonging to the poor section of the society and on that score, her version about the offence alleged against the accused could not be doubted so long as her version of the offence of alleged kidnapping and gang rape was consistent in her evidence. We, therefore, do not find any scope to apply whatever is stated in the said decision which was peculiar to the facts of that case, to be applied to the case on hand.

25. In the decision reported in Ashok Kumar v. State of Haryana (supra), this court while dealing with the offence under Section 376 (2) (g) IPC read with explanation held as under in Para 8: "8.Charge against the appellant is under Section 376(2)(g) IPC. In order to establish an offence under 31 Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence."

26. Applying the above principle to the case on hand, we find that except the ipse-dixit of the prosecutrix that too in her chief examination, with various additions and total somersault in the cross examination with no support at all at the instance of her niece and nephew who according to her were present in the house at the time of occurrence, as well as, the FSL report which disclosed the absence of semen in the socks which was stated to have been used by the accused as well as the prosecutrix to wipe of semen, apart from various other discrepancies in the matter of recoveries, namely, that while according to the prosecutrix the watch snatched away by the accused was 'Titan' while what was recovered was 'Omex' watch, and the chain which was alleged to have been recovered at the instance of the accused admittedly was not the one stolen, all the above factors do not convincingly rope in the accused to the alleged offence of 'gang rape' on the date and time alleged in the chargesheet.

27. In the decision reported as State of Himachal Pradesh v. Asha Ram - AIR 2006 SC 381, this Court highlighted the importance to be given to the testimony of the prosecutrix as under in para 5:

5. .............................It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts 32 should find no difficulty in acting 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. It is also a well-settled principle of law that 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 the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."

(emphasis added) 28. That was a case where the father alleged to have committed the offence of rape on one of his daughters who was staying with him while his wife was living separately due to estranged relationship. While dealing with the said case, where the prosecutrix, namely, the daughter, apart from the complaint lodged by her, maintained her allegation against her father in the Court as well. This Court held that the version of the prosecutrix in the facts and circumstances of that case merited acceptance without any corroboration, inasmuch as, the evidence of rape victim is more reliable even that of an injured witness. It was also laid down that minor contradictions and discrepancies are insignificant and immaterial in the case of the prosecutrix can be ignored.

29. As compared to the case on hand, we find that apart from the prosecutrix not supporting her own version, the other oral as well as forensic evidence also do not support the case of the prosecution. There were material contradictions leave alone lack of corroboration in the evidence of the prosecutrix. It cannot be said that since the prosecutrix was examined after two years there could be variation. Even while giving allowance for the time gap in the recording of her deposition, she would not have come forward with a version totally conflicting with what she stated in her complaint, especially when she was the victim of the alleged brutal onslaught on her by two men that too against her wish. In such circumstances, it will be highly dangerous to rely on such version of the prosecutrix in order to support the case of the prosecution.

30. In the decision reported as Lalliram & Anr. v. State of Madhya Pradesh (supra) in regard to an offence of gang rape falling under Section 376 (2)

(g) this Court laid down the principles as under in paras 11 and 12:

"11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra v. State of Orissa where allegation is of rape by many persons and several times but no 33 injury is noticed that certainly is an important factor and if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar v. State of Haryana.)

12. As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial." (emphasis added)

31. When we apply the above principles to the case on hand, we find the prevaricating statements of the prosecutrix herself in the implication of the accused to the alleged offence of gang rape. There is evidence on record that there was no injury on the breast or the thighs of the prosecutrix and only a minor abrasion on the right side neck below jaw was noted while according to the prosecutrix's original version, the appellants had forcible sexual intercourse one after the other against her. If that was so, it is hard to believe that there was no other injury on the private parts of the prosecutrix as highlighted in the said decision. When on the face value the evidence is found to be defective, the attendant circumstances and other evidence have to be necessarily examined to see whether the allegation of gang rape was true. Unfortunately, the version of the so called eye witnesses to at least the initial part of the crime has not supported the story of the prosecution. The attendant circumstances also do not co-relate to the offence alleged against the appellants. Therefore, in the absence of proper corroboration of the prosecution version to the alleged offence, it will be unsafe to sustain the case of the prosecution.

32. In the decision reported as Krishan Kumar Malik v. State of Haryana (supra) in respect of the offence of gang rape under Section 376 (2) (g), IPC, it has been held as under in paras 31 and 32:

"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient 34 provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

32. Indeed there are several significant variations in material facts in her Section 164statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant." (emphasis added) 33. Applying the said principles to the facts of the case on hand, we find that the solitary version of the chief examination of PW-4, the prosecutrix cannot be taken as gospel truth for its face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellants.

34. The prosecution has miserably failed to establish the guilt of gang rape falling under Section 376(2) (g), IPC against the appellants. The conviction and sentence imposed on the appellants by the trial Court and confirmed by the impugned order of the High Court cannot, therefore, be sustained. The appeals are allowed. The judgment and order of conviction and sentence passed by the trial Court and confirmed by the High Court are hereby set aside. The appellants are acquitted of all the charges and they be set at liberty forthwith, if not required in any other case.

23. Aforesaid exposition of law taken into consideration clearly reveals that ordinarily the evidence of prosecutrix should not be suspected or should be believed and if the evidence is reliable, no corroboration is necessary. However, statement made by the victim- prosecutrix cannot be universally and mechanically applied to every case of sexual assault, which comes before the Court, rape cases cause greatest distress and humiliation to the victim-prosecutrix, but 35 at the same time, false allegation of rape can cause equal distress, humiliation and damage to the accused as well. Hon'ble Apex Court in Rajoo Vs. State of MP (supra) categorically held that the accused must also be protected against the possibility of false implication and it must be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for presuming that the statement of such a witness is always correct or without any embellishment or exaggeration. In the case at hand, as has been discussed hereinabove, version put-forth by the prosecution is full of contradictions and inconsistencies and not corroborated by other prosecution witnesses. If the statements made by the victim- prosecutrix or other prosecution witnesses are read in conjunction, they cast serious doubt about the correctness with regard to story of prosecution.

24. In Jose alias Pappachan v. Sub-inspector of Police, Koyilandy and Anr. (2016) 10 SCC 519, the Hon'ble Apex Court, has held as under:-

"56.It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a 36 reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."

25. Reliance is also placed on a judgment rendered by the Hon'ble Supreme Court in T. Subramanian vs. State of Tamil Nadu, (2006)1 SCC 401, wherein it has been held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. Relevant para of the judgment is reproduced herein below:

"10. The evidence throws out a clear alternative that the accused was falsely implicated at the instance of PWs.1, 2 and 6. If two views were possible from the very same evidence, it cannot be said that the prosecution had proved beyond reasonable doubt that the appellant had received the sum of Rs. 200/- as illegal gratification. We are, therefore, of the considered view that the trial court was right in holding that the charge against the appellant was not proved and the High Court was not justified in interfering with the same.

11. We, therefore, allow this appeal, set aside the order of the High Court and restore the order of the trial court, acquitting the appellant of the charge.

26. Consequently, in view of detailed discussion made hereinabove as well as law taken into consideration, this court finds 37 merit in the present appeal and as such, same is allowed. Judgment of conviction and order of sentence dated 25.04.2022 passed by learned Sessions Judge, Mandi, District Mandi, H.P. in Session Trial No. 41/21/2015 is set aside. Accused is acquitted of the offence punishable under Section 376 IPC.

27. Registry is directed to prepare and send the release warrants of the accused to the Superintendent of Jail, Model Central Jail, Nahan, District Sirmaur, Himachal Pradesh, forthwith, enabling said authority to release the accused, if not required in any other case.

(Sandeep Sharma), Judge August 08, 2024 (sunil) Digitally signed by MAMTA RAO DN: C=IN, O=HIGH COURT OF HIMACHAL MAMT PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=36bb51250baa5a51385bbc5a5b42531 4fae384931dc610a63165c9febd25094e, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=2987d79d0aae1f98d0fd566 A RAO 3fb63f715a53ab1add092fa3617b76bdc094f63d 9, CN=MAMTA RAO Reason: I am the author of this document Location:

Date: 2024-08-13 15:49:04

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Himachal Pradesh High Court