Allahabad High Court
Roop Kishore vs State Of U.P. on 17 January, 2015
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 21
Reserved on 11.12.2014
Delivered on 17.01.2015
AFR
Case :- CRIMINAL APPEAL No. - 1080 of 2006
Appellant :- Roop Kishore
Respondent :- State Of U.P.
Counsel for Appellant :- Syed Ehsan Abbas
Counsel for Respondent :- G.A.
Hon'ble Vishnu Chandra Gupta,J.
Judgement This criminal appeal under section 374(2) Cr.P.C. is directed against the judgement and order dated 25.5.2006 passed by the Additional District Judge, FTC -VIII, Lucknow in Sessions Trial No. 371 of 1995 relating to case crime no. 167 of 1990 under section 376 IPC P.S. Itaunja, District Lucknow, whereby sole appellant Roop Kishore was convicted and sentenced under section 376 IPC with rigorous imprisonment of seven years and fine of Rs. 5000/-, in default of payment of fine he was further directed to undergo additional imprisonment of one year.
It is peculiar case of its own where no First Information Report (For short ''FIR') regarding commission of offence has been lodged and case has been registered on the basis of statement of Km. Saroj recorded in connection with suspected murder of Ram Chandra, who was her father. Km. Saroj was a suspected accused in murder of her own father.
Brief facts for deciding this criminal appeal are that Ram Chandra, the father of prosecutrix Km. Saroj was admitted in Balrampur Hospital, Lucknow on 17.5.1990 as a case of suspected poisoning where he died. After his death, the hospital authority i.e. Dr. O.P. Srivastava. EMO informed the Station Officer, P.S. Wazirganj, District Lucknow by sending a memo on 18.5.1990 that a patient Ram Chandra aged about 35 years, son of Late Bhairav Prasad, resident of Basaina, P.S. Itaunja, District Lucknow was admitted in emergency ward bed no. 17 of Balrampur Hospital, Lucknow as a case of suspected poison, on 17.5.1990 at about 11.10 p.m. He expired due to respiratory failure at 3.45 P.M. at Barlampur Hospital, Lucknow. His dead body was kept in mortuary. The deceased was brought by one Vikram son of Ram Asrey having the same address. On the basis of this information, a report was registered in Police Station- Wazirganj, District Lucknow at 7.10 a.m. in General Diary No. 11 as a case of suspected poisoning. After conducting inquest, the post mortem was done. When cause of death could not be ascertained, viscera was preserved and sent for chemical examination. This case was registered on the basis of information, but no crime number was allotted because the death of Ram Chandra could not be ascertained. However, the police after registering the information took a decision to investigate the matter. After investigation of the matter, it was found that cause of death could not be ascertained and the matter was closed. During the course of investigation, this fact was revealed that accused appellant Roop Kishore was having sexual relation with Km. Saroj. When this sexual relation came to the knowledge, Ram Chandra, the father of prosecutrix raised protest. During the course of investigation the statement of Km. Saroj was recorded under section 161 Cr.P.C by SI T.C. Gautam (P.W. 6) wherein she admitted her illegitimate relation with appellant, a resident of same village. She also stated that earlier appellant had committed sexual intercourse upon her 4-5 times and both were intending to marry. When her father came to know about it, he stopped her to meet appellant. He also threatened her that if she will meet appellant, she will be cut into pieces. Thereafter appellant and prosecutrix both have made criminal conspiracy to eliminate Ram Chandra. Appellant purchased poison and gave to her (Km. Saroj.) She mixed the poison in wine and gave to her father. Thereafter her father Ram Chandra died. The statement of Km. Saroj was also recorded under section 164 Cr.P.C., on 7.7.1990, wherein she stated that she used to come with appellant to Itaunja for study. She was intending to marry with him, but her father had an objection. Her father extended threats to kill both about 2-3 month ago. Thereafter hot talk took place in between Ram Chandra and appellant. She also stated that when she was remained alone in house, the appellant came to her house and committed sexual intercourse with her. Before learned Magistrate she disowned her statement given earlier under section 161 Cr.P.C. and stated that she did not administer the poison to her father. Who killed her father is not known to her?. She also stated that she was aged about 16 years and was studying in class VII.
The information with regard to suspected death of Ram Chandra was registered in police station Wazirganj, District Lucknow. The police submitted final report in this case. But the Circle Officer (C.O.)/Deputy Superintendent of Police directed for re-investigation of case to S.P. Rai, S.O. of police station Itaunja, District Lucknow. In compliance thereof, S.P. Rai conducted the investigation after handing over the case to him on 26.10.1990. During the course of investigation of the case S.P. Rai got medical examination of Km. Saroj in Women Hospital Balrampur, Lucknow where her external and internal medical examination was conducted. She was also sent for X-ray for determination of age. Smear of vagina was also sent for examination . Thereafter, S.P. Rai directed the Head Constable of police station to register the case against appellant under section 376 IPC. Consequently the case was registered against the appellant on 6.12.1990 at serial no.27 at 18.05 Hrs under section 376 IPC (Ext.Ka7). On the basis of statement recorded under section 164 Cr.P.C and the medical examination conducted of the prosecutrix charge-sheet has been filed against the appellant in the court on 2.1.1991 (Ext. Ka-9). During investigation site plan (Ext.-Ka-8) was prepared. Medical examination of prosecutrix was conducted by Dr. Manjoo Sachan (PW 5). She submitted the medical examination report (Ext.-Ka-5)on 16.11.1990 at 3.35 p.m. .
'External examination of prosecutrix-
teeth were found 7x7/7x7, height 56 Inch and weight 86 pounds, breast developed axillary & pubic hair present.
Internal examination doctor found that her hymen old torn, vagina admits two fingers easily.
Vaginal smear was taken and sent for pathological examination.
The prosecutrix was also sent for X-ray examination. This report (Ext. Ka-4) was proved by her during the course of the trial.
Dr. Sachan also submitted a supplementary medical examination report on 20.11.1990 (Ext. Ka-5) on the basis of X-ray report no. 93 (Ext. Ka -3) wherein it was found that epiphyasis around elbow fused, epiphysis around knee partially fused and epiphysis around wrist not joined.
According to her, radiological age of the prosecutrix was about 16-17 years. In vaginal smear report (Ext.Ka-6) no spermatozoa or Gonococci were seen.
After submission of charge-sheet by the police the case was committed to the court of sessions. Charge under section 376 IPC was framed against the appellant, who denied the charge and claimed for trial.
To prove its case, the prosecution examined Smt. Saroj (P.W.-1), the prosecutrix of this case Permeshwar (P.W.-2), Smt. Godawari Misra (P.W.-3), Principal Kanya Uchch Prathmic Vidhyala, Itaunja, Dr. J.P.Gupta, Senior Radiologist (P.W.-4), Dr. Manjoo Sachan (P.W.-5), Suresh Chandra Shukla, Head Constabale (P.W.-6), T.C.Gautam, Sub Inspector, (P.W.-7) and Shanti Prasad Ram (P.W. 8), the I.O. of this case Smt. Godawari Misra P.W. 3 proved scholar register of the school ( Ext.-Ka-2) to prove the age of Kr. Saroj, whose date of birth was mentioned therein as 10.8.1976. She also gave certificate identifying her date of birth on 2.1.1991 (Ext. Ka-1). DR J.P.Gupta P.W.4 proved X-ray report. Dr. Manjoo Sachan P.W.-5 proved medical examination of the prosecutrix and report of pathological test (Ext. Ka-6). Suresh Chandra Shukla (H.C,) P.W.-6 proved registration of crime in general diary which is marked as Ext. Ka 7.Shanti Prasad Ram,SI, P.W.-8 proved charge sheet (Ext. Ka-9) and site plan (Ext. Ka-8).
After examination of prosecution witnesses appellant examined under section 313 Cr.P.C. He claimed his false implication in this case. He stated that Ram Chandra was a hard core criminal and was informer of police. Therefore, the police has falsely implicated him. He did not adduce any evidence in his defence.
The trial court after considering the evidence adduced by the prosecution convicted the appellant and sentenced him under section 376 IPC as mentioned herein above.
I have heard Shri Syed Ehsan Abbas,learned counsel for the appellant and Shri Izhar Hussain, learned AGA and perused the lower court record.
It has been submitted by the learned counsel for the appellant that in this case there is no FIR and no time, date and place of commission of rape upon the prosecutrix by the appellant has been disclosed. The case was registered against the appellant with intent to save the prosecutrix from charge of murder of her father as deceased was the hard core criminal and was informer of the police and police instead of involving the prosecutrix of this case falsely implicated the appellant under section 376 IPC. It is further contended from the perusal of the statement under section 161 Cr.P.C., that prosecutrix was aged about 16 years at the time of alleged offence and as per medical examination her age was found more than 16 years. The age alleged to have been proved by school record is not believable and the date of birth written in school register is not substantiated from the statement of P.W. 3. It is further submitted that case is based on sole testimony of prosecutrix whose evidence is not at all reliable and does not find support of medical evidence. Therefore, the appellant is liable to acquitted from the charge levelled under Section 376 IPC.
In support of his contentions the learned counsel for the appellant has placed reliance on the judgement of this Court Raju Yadav @ Mukesh Vs. State of U.P., 2014 (2) JIC 682 (All) (LB) wherein it has been held that age of victim was found 16 years in medical examination report. It is admitted case of the prosecution that victim used to establish physical relation with appellant. In attending circumstances, it was found that victim was a consenting party. The evidence of prosecutrix was not found wholly reliable. Therefore, conviction recorded under section 376 IPC may be set aside. He also relied upon a judgement of Apex Court reported in (2013) 4 SCC 207 State of Rajasthan Vs. Babu Meena, wherein it has been held that if the evidence of the prosecutrix is not wholly reliable, her sole testimony cannot be used for recording conviction.
On the contrary, learned AGA submitted that even if the age of the prosecutrix is 16 years, it is not decisive to hold that prosecutrix would be a consenting party.
In support of his contentions learned AGA relied upon the judgements of Apex Court reported in (2014) 5 SCC 689, Puran Chand Vs. State of Himachal Pradesh and (2011) 10 SCC 192 Mohd. Imran Khan Vs. State Government (NCT of Delhi).
On the basis of these authorities he submitted that even if the age of the prosecutrix is above 16 years, she cannot be treated as consenting party and if the evidence is fully reliable, there shall be no need of any further corroboration. In this case the date of birth of prosecutrix has been established on the basis of school record and accordingly her age is less than 16 years. Therefore, even if the sexual intercourse has been done upon a girl whose age is less than 16 years, the question of consent looses significance. Thus it is clear cut case of offence punishable under section 376 IPC.
Having considered the rival submissions of the parties two questions are necessary to decide this appeal.
Questions
1.What would be the age of prosecutrix at the time of commission of crime?
2.Whether the prosecutrix was consenting party?
So far as age of the prosecutrix is concerned , statement under section 164 Cr.P.C. was recorded, on the basis of which FIR was lodged but neither it has been brought on record nor it has been proved. The general diary entry shows that prosecutrix in her statement recorded under Section 164, Cr.P.C. stated that her age is 16 years.
Kr. Saroj, P.W. 1, the prosecutrix of this case, is sole witness of offence of rape. She in her statement recorded under section 164 Cr.P.C. on 7.7.1990 stated that she was having friendship with Roop Kishore, the appellant. She used to go for studies to Itaunja. Her father had an objection. They asked to kill both. About 2-3 month ago quarrel took place. When no body remains in her house Roop Kishore used to visit and used to do Bura Kam with her. Who killed my father is not known to me? I did not give poison to my father. My age is 16 years . I study in class VI.
She was examined on oath in Court during trial. She deposed that incident took place in winters of year 1990. At that time she was studying in class six in /Senior Basic Girls School Itaunja and her age was about 15-16 years. Roop Kishore was a resident of her village, who was student of class 12th and was studying in Itaunja. Chandrawati, the sister of Roop Kishore was studying with her. She called her in her house so she went to the house of Roop Kishore. Chandrawati was not in the house. There was no one inside the house except Roop Kishore. It was about 2-3 p.m. He threatened her with county made pistol and said if she tells to anybody, she will be killed and then committed Bura Kam against her wishes. When she tried to raise screams, he gagged her mouth. She also stated that if she tells his father about it, he will kill her. Under this fear, she did not tell his father about it. After 2-3 days when her parents were in the field, the appellant came to her house and by showing country made pistol, did Bura Kam with her and also threatened that he will kill her father so that hurdle may be removed. She specified Bura Kam by saying that he inserted his penis in her vagina. Thereafter quarrel took place in between her father and appellant. After fifteen days thereafter her father died. She told to Daroga Ji that Roop Kishore raped her. Thereafter, her statement was also recorded before the learned Magistrate . She was also medically examined .
In cross examination, she stated that she lodged FIR after the death of her father. Her grand mother was alive, who lodged the report. This incident occurred 10-15 days prior to death of her father. The persons of Mohalla have fear with her father, therefore, she did not tell about the appellant. She also admitted that her father took a lot of wine. Somebody mixed the poison in wine. She did not see who mixed the poison in wine. She also stated that appellant said that in case her father is died, way will be clear. She was not ready to marry with appellant. She hardly maintained sexual intercourse twice with appellant. She also stated that after the death of her father, she did not care the consequences of her life and lodged the report. She told the whole story to her grand mother, who was accompanied with her when the report was lodged. The report was lodged of hot talk taken place in between the appellant and her father. She was already married about six year ago and has two children. She denied that due to death of her father she falsely implicated the appellant. She stated that she gave statement before learned Magistrate with free will. She disowned the statement given before the learned Magistrate that there was friendship in between her and appellant. She admitted that she used to go to Itaunja for study and appellant told her to marry, but her father had an objection. She disowned the statement given before the learned Magistrate that her father used to kill her and appellant. However, she admits that 2-3 months before there was quarrel in between the appellant and her father. She stated that she was aged about 16 years and was studying in class VII . She also stated before the learned Magistrate that appellant put country made pistol on her and threatened that if she tells about the incident to anybody, she will be killed. She did not give any explanation for not recording the aforesaid facts in the statement by the learned Magistrate. She also admitted that Jugga had two sons Braj Lal and Lallan. She also admits that on 11.8.2003 she left with Braj Lal. The report of this incident was lodged by her husband Ram Pal in police station Madiyawn. She also stated that before learned Magistrate she gave statement that she tried to cry, but her mouth was gagged by the appellant. She also stated that appellant told her that if she tells her father about this incident, she will be killed. She also told this incident to the police and leaned Magistrate but as to why this statement has not been recorded by the learned Magistrate. She also stated that she studied from class 1 to class 5 in Usrana village. She is not knowing the name of that school. It was government school.
So far as statement of P.W. 2 is concerned, he gave evidence only to the effect that he saw the prosecutrix and appellant together. When he asked the prosecutrix about Ram Chandra, she stated that he is not in the house. Thereafter appellant and prosecutrix entered the house. He informed about this incident to her father Ram Chandra.
So far as P.W. 3 is concerned, in her deposition she stated that she was posted as Principal of Kanya Uchch Prathamik Vidyalaya Itaunja on 2.1.1995. She proved the date of birth of the prosecutrix as per the school register. She filed extract of school register. In her deposition, she stated that she issued certificate of date of birth of prosecutrix on the basis of school register and at the time of deposition admission register was before her. The register was related from 1984 to 1993. The admission of the prosecutrix was made on 21.7.1989 in class six. The entry was made at serial no. 1146 by her own hand writing.
In cross examination P.W. 3 stated that she retired in 2000. Before issuing certificate application is taken but such application is not on record. The entry was made in admission register on the basis of Transfer Certificate (T.C.) of class-VI but that T.C. is not on record. PW-3 deposed that in the register it has not been mentioned that date of birth has been mentioned on the basis of TC. It is also not mentioned that from which school she passed class-V but again she replied that in the register it is mentioned that she passed class-V from Purva Basic School Usarna. She expressed her inability to tell that date of birth of Km. Saroj mentioned in TC is correct or not? she clarified that correct date could be given by her mother. While issuing TC the application was moved by Km. Saroj which is available in register, but this application was not given before her. She admits that there was no signature in entry no. 1146. On 2.7.1990 Km. Saroj took admission in class seven. Thereafter she absented herself and her name was scored out. There was no pagination in the register, however, serial number is mentioned. Affidavit for entering date of birth of students used to be taken of either of mother or father.
Age of Prosecutrix This Court will first take up the issue with regard to the age of the girl. The trial court has based its conclusion on the school register.
Doctor opined the age of prosecutrix as 16-17 years on the basis of ossification examination.
The date of birth of prosecutrix as per school record is 10.08.1976 Though the actual date of incident has not been disclosed either in the FIR or in statement under Section 164 Cr.P.C or before the Court, but as per deposition in court the prosecutrix stated that incident is of winters of 1990, and such her age in year 1990 may be of about 14 year.
The mother or grand mother of prosecutrix has not been examined by the prosecution. So what was the actual age of the prosecutrix could not be determined on the basis of actual date of birth. The prosecution case is that in absence of any other evidence of date of birth the date of birth on the basis of school record should be treated to be the correct date of birth.
On the contrary, the defence stated that school record is not worth reliance. The basis of recording the date of birth, that is, the transfer certificate issued by basic school where the prosecutrix alleged to have studied up to class Vth, has not been produced before the Court nor affidavit of parents given at the time of entering date of birth in the school was brought on record. Moreover the mother and grand mother of prosecutrix, who admittedly alive, were not intentionally produced to establish her date of birth. PW-3 categorically stated that correct date of birth could be given by the parents.
Undoubtedly, the School certificate indicates that the girl's date of birth is 10.08.1976. Therefore, even according to the aforesaid certificate, she would be above 14 years on the date of the alleged incident i.e. in winter months of 1990. The school certificate has been issued by a Principal. However, the admissibility of such a document would be of not much value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the certificate would have no evidentiary value unless the person, who gave the date of birth is examined.
It may be noticed that even with reference to Section 35 of the Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by their Lordships of Supreme Court in Ravinder Singh Gorkhi v. State of U.P. (2006)5 SCC 584, which held at page 595 in para 38 as follows:
"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
It may be further noticed here that the parents of prosecutrix, were not examined in the court.
The manner in which the facts recorded in a document may be proved, has been considered by their Lordships of Supreme Court in Birad Mal Singhvi v. Anand Purohit 1988 Supp 604, and observed in para 14 at page 618-619 as follows;
"14. ... The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. ... Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."
The same proposition of law is reiterated by the Hon'ble Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003) 8 SCC 745, where the Apex Court observed at page 751 in para 16 as follows:
"16. ... The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the ''evidence of those persons who can vouchsafe for the truth of the facts in issue'."
This Court is of the view that the aforesaid burden of proof has not been discharged by the prosecution. The mother or grand-mother of the prosecutrix has not been examined though they were alive as per statement of prosecutrix. The person recorded the age of prosecutrix in school has been examined but she categorically stated that the document on the basis of which date of birth was registered in the record is not before her. Therefore, the entry in the School certificate cannot be relied upon to definitely fix the age of the girl.
In fixing the age of the girl as below 16 years, the trial court relied solely on the School certificate. However, the trial court failed to consider the expert evidence given by PW 5 Dr. Manju Sachan, who had medically examined the victim. In her examination, she had clearly stated that the medical examination would only point out the age in between 16 to 17 years. The concerning Radiologist (PW 4) also opined that prosecutrix is in between 16 to 17 years. This margin of error in age has been judicially recognised by the Apex Court in Jaya Mala v. Govt. of J&K (1982) 2 SCC 538. In the aforesaid judgement, it is observed at page 541 in para 9 as follows:
"9. ... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
This Court is of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the School certificate. There was no reliable evidence to accept the correctness of the date of birth as recorded in the School register. The expert evidence does not rule out the possibility of the girl being above 16 years. In view of the above, the prosecution has failed to prove that the girl was less than 16 years of age, at the relevant date.
In such circumstances, this Court is bound to hold that the trial court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was less than 16 years of age at the time of the alleged incident. There is no satisfactory evidence to indicate that she was less than 16 years of age at the time of alleged commission of offence.
Whether The prosecutrix was consenting Party?
As per definition of rape, applicable at the time of commission of offence, as contained in description six of section 375 IPC if the age of prosecutrix is less than 16 years and any person has sexual intercourse with such woman the consent of woman would be immaterial. But if the age is 16 years or above, the consent of woman becomes material.
If consent of woman is there for sexual intercourse, and such consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt, or when at the time of giving consent she was under intoxication or by reasons of her unsoundness of mind or she was unable to understand the nature of consequences of consent due to administration of unwholesome or any stupefying substance or she believes the person to be lawfully married and the man knows that he is not her husband, than even after consent of woman the act of sexual intercourse would be the rape.
In the case in hand the prosecutrix stated on oath that appellant raped her against her will by putting her in fear to kill. Now it has to be seen whether her statement is reliable or not?
How and in what manner in cases of rape evidence has to be appreciated and what are the consideration to be kept in mind by the courts has been discussed time and again by the Apex Court.
Apex Court in Suresh Kumar Koushal & Anr Vs. Naz Foundation & others, (2014) 1 SCC 1 observed that what amount of agony a person face after charge of rape cannot be imagine nor expressed in words. He virtually lost everything in the society. He suffered a great stroke in his reputation and status in the society and amongst his family members and friends.
In Lallu Manjhi Vs. State of Jharkhand (2003) 2 SCC 401 the Hon'ble Supreme court has classified the oral testimony of witnesses into three categories:
(a). Wholly reliable
(b). Wholly unreliable, and
(c). neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and to see whether the statement of such witness is corroborated, either by the other witness or by other documentary or expert evidence.
In Raju v. State of Madhya Pradesh, (2008) 15 SCC 133, the Hon'ble Supreme Court after taking into consideration the several authorities of it own consider the amendment in statute relating to sexual offences and the effect of false implication in para 10,11and 12 at page 141 observed as follows:
"10. The aforesaid judgements lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a 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.
11. 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.
12.Reference has been made in State of Punjab v.Gurmit Singh case ((1996) 2 SCC 384) to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect 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 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abatement 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 visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar 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."
In Lalliram v. State of Madhya Pradesh, (2008) 10 SCC 69, their Lordships of Hon'ble Supreme Court observed with regard to absence of injuries on the person and private parts of the prosecutrix in paras 11 at page 71:
"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 (1977)3 SCC 41, where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor 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 (2004) 4 SCC 379)"
In Narayan Alias Naran vs. State of Rajasthan, (2007) 6 SCC 465 their Lordships of Hon'ble Supreme Court further observed that when the evidence of prosecutrix is full of contradictions and is so artificial that it cannot be accepted, it was held, though evidence of prosecutrix can alone sustain conviction of the accused without corroboration from any other evidence, on fact conviction cannot be allowed to sustain.
In the present case the FIR has not been lodged by the prosecutrix or any member of her family. The prosecutrix before lodging the FIR was suspected accused of murder of her own father along with present accused appellant. The case of prosecution, right from statement recorded by the I.O. under section 161 Cr.P.C and throughout the investigation and also in statement recorded under section 164 Cr.P.C. that the prosecutrix was having sex relations. In the statement recorded under section 164 CrPC she categorically stated that relations in between her and appellant were of friendship. In statement during trial is totally reversed to it and for the first time she took turn and stated that appellant under threat to her life on gun point committed rape. The evidence of PW 2 is very important on this score. He stated that he saw both, prosecutrix and appellant standing out side the house of prosecutrix. No body was in side the house. Both entered the house of prosecutrix. When prosecutrix was confronted with her previous statement in this regard, she disowned it. The medical evidence is also excluded the possibility of forceful sexual intercourse. The story developed by prosecutrix regarding absence of her consent does not appeal to my mind in view of attending circumstances.
The role of I.O. is also suspicious because he did not collect the report of viscera of father of prosecutrix and did not proceed further in the investigation of cause of death of Ram Chandra , specially when the hospital reported the death of Ram Chandra as a case of suspected poison and in statement recorded under Section 161, Cr.P.C. prosecutrix confessed her guilt of giving poison to her own father with intend to eliminate him with connivance of appellant on account of love affairs in between the prosecutrix and appellant who are intended to marry. It seems most probable that the role of police is not fair in this case and the police gave room to escape from the suspicion which may take proof if the report of viscera found positive.
SI T.C. Gutam (P.W. 7), is the Investigating Officer and investigated the case of suspected death of Ram Chandra by poisoning. He after getting the postmortem examination report proceeded for further investigation. In the postmortem examination report, the cause of death was not clear, hence the viscera was preserved. He recorded the statement of the prosecutrix, who is the daughter of Ram Chandra, and also produced the prosecutrix before the Magistrate for recording her statement under Section 164 Cr.P.C. He also deposed that daughter of deceased did not give any clue or evidence about the death of her father so he tried to get other evidence, but no evidence was found regarding the cause of death of Ram Chandra. Therefore, the information registered in the general diary regarding suspected death of Ram Chander on 12.07.1990 was ended in final report. When the trial court asked question from this witness, he admitted that he did not go through the viscera report, because viscera report was not received to him. In reply to the question of trial court, he deposed that he did not try to collect the report and in anticipation of receipt of viscera report, he submitted final report. When trial court again put a question, when cause of death could not be ascertained in postmortem report and viscera was preserved, what has been presumed. The reply of was that there was no evidence of the cause of death. The court again put a question what was the relation in between the information lodged of suspected death of Ram Chandra and a case under Section 376 IPC then he stated that he simply investigated the case of receipt of information of suspected death of Ram Chandra and he did not investigate the case under Section 376 IPC. He got the statement recorded under Section 164, Cr.P.C. of the daughter of deceased and submitted final report. He categorically admitted that he did not collect viscera report nor the same is available on record. In cross-examination, he affirmed that during investigation, he reached on the conclusion that neither Roop Kishore nor prosecutrix administered poison to Ram Chandra. He also categorically stated that till then no report of Section 376 IPC was brought before him. He categorically admitted that the neighbour of the deceased, namely, Vikram Ram was intending to involve the neighbours in the case but that attempt failed. He also admitted that the prosecutrix and daughter of the deceased was a feeble mind girl. It was also admitted that Roop Kishore, Vikram and Saroj are the neighbours. However, he denied that when case under Section 302 IPC could not be made out against Roop Kishore for the murder of Ram Chandra then Vikram after tutoring Km. Saroj involved him in case under Section 376 IPC. He also stated that no application has been moved by Km. Saroj for registering a case under Section 376 IPC nor he got Km. Saroj medically examined because till then there was no case of rape was pending against Roop Kishore.
The second Investigating Officer, SI Shanti Prasad (P.W. 8) was also examined, who stated that on 31st October, 1990. He get the investigation (information registered in the general diary regarding suspected death of Ram Chandra). He also recorded the statement of witnesses of inquest. He again gone through the investigation conducted by Sri T.P. Gautam. He started re-investigation of the case regarding death of Ram Chandra but he could not find any evidence. When he examined the statement of prosecutrix under Section 164, Cr.P.C., then he got Km. Saroj medically examined on 06.12.1990 and on the basis of the statement of Km. Saroj recorded under Section 161, Cr.P.C. and on the basis of medical examination, he registered a case under Section 376, IPC at Case Crime No.167 of 1990 by altering the suspected case of death into case under Section 376 IPC. He recorded the statement under Section 161, Cr.P.C. of Km. Saroj and prepared the site plan and after completing the investigation submitted charge-sheet against the appellant accused. He also admitted that no application was received by him for lodging the case under Section 376 IPC. He started the investigation under the orders of the S.O. The order is not in the CD. In this regard, he did not record any statement. Later on, he admitted that no separate order was issued for registering the case under Section 376 IPC. Neither oral nor written report at the behest of Km. Saroj was lodged in the police station. The statement of Kumari Saroj was also recorded during the investigation of death of her father. It is also stated that whatever statement has been recorded during investigation of cause of death of Ram Chandra this case under Section 376 IPC has been registered. He also categorically admitted that there was no mention in the statement under Section 164, Cr.P.C. that sexual intercourse was done forcibly with her by the appellant. Neither in the statement under Section 161, Cr.P.C. nor in the statement under Section 164, Cr.P.C., the date, time and place of alleged sexual intercourse with her has been mentioned. He also admitted that in medical examination no evidence of alleged rape was found nor witness Parmeshwar stated about rape. No other witness gave any evidence in regard to commission of rape. He also admitted that deceased Ram Chandra was robber and man of bad antecedents. He alleged that when Roop Kishore could not be involved under Section 302 IPC then he was involved in under Section 376 IPC.
In view of the statement recorded by these two Investigating Officers, it is crystal clear that role of police and the investigating agency was not fare. The police submitted final report in the suspected case of poisoning without obtaining the viscera report. It is also important to mention here that the report of suspected death was sent by a doctor of hospital and not by a layman and in such circumstances, closure report submitted by the police creates a reasonable doubt in the mind of the court that Investigating Officers conducted investigation with some oblique motive. It is also important to mention here that the prosecutrix herself during examination under Section 161, Cr.P.C. confessed that she administered poison to her father in wine. If she made confession during investigation, then closure of the case of suspected poison without obtaining viscera report is not understandable to this Court. The statement of P.W. 7 is of a great importance wherein he admitted that neighbours of Km. Saroj tried to falsely implicate the neighbour Roop Kishore in the case of death of Ram Chandra. He also categorically admitted that prosecutrix is a girl of feeble mind and subjected to tutoring Not only this, she was also tutoring to falsely implicate the person.
All these circumstances if taken together, create reasonable doubt in the prosecution version. The finding recorded of absence of consent of prosecutrix cannot be allowed to sustain in the aforesaid circumstances.
As the age of prosecutrix was found to be 16 years or above, the law cited by learned A.G.A. on fact is not applicable.
As such prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. The appellant is entitled to benefit of doubt and his conviction and sentence recorded under section 376 IPC by the Court below is liable to be set-a-side and appellant is entitled to be acquitted.
Resultantly, the appeal is allowed. The appellant is acquitted of the charges levelled against him. The appellant is already on bail. His bail bonds are cancelled and sureties are discharged.
Copy of this judgement be sent to trial Court along with record of lower court for compliance.
Registrar of this Court shall also ensure the compliance of this order without any further delay.
Dated:- 17.01.2015 GSY