Himachal Pradesh High Court
State Of Himachal Pradesh vs Varinder Kumar Alias Ravi ... ... on 11 January, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 417 of 2014
Reserved on 19.12.2016.
Decided on: 11.01.2017.
State of Himachal Pradesh ....Appellant.
.
Versus
Varinder Kumar alias Ravi ... Accused/respond ent.
.......................................................................................
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes.
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For the appellant. : Mr. Vikram Thakur & Mr. Puneet Rajta, Dy.
Advocate Generals with Mr. J.S. Guleria,
Assistant Advocate General.
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For the respondent . : N.K. Thakur, Sr. Advocate with
Ms. Jamuna Pathik , Advocate.
Ajay Mohan Goel, J.
By way of this appeal, the State has challenged the judgment passed by the Court of learned Sessions Judge- II, Kangra at Dharamshala, Distt. Kangra in S.C. No. 3-G/VII/13/2011 dated 23.4.2014 vide which, learned trial court has acquitted the accused for commission of offences punishable under Sections 376 and 406 of the Indian Penal Code (in short 'IPC').
2. The case of the prosecution was that prosecutrix daughter of Pinku Ram met accused in a village marriage and thereafter accused again met her after about 15 days , while prosecutrix was returning home from her school and accused called upon the prosecutrix to be his friend. At the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 2relevant time the age of the prosecutrix was 16 years. Thereafter as per the prosecution, accused kept on meeting the prosecutrix and in April, 2007 accused told her that he intended to marry her and on this pretext he called .
her in a field near her house at a solitary place and committed sexual intercourse with her. As per prosecution accused committed sexual intercourse with prosecutrix four times between April, 2007 and March, 2009.
3. Further as per prosecution, on 20.3.2009 in between 2/2:30 of p.m. accused again called her to a field and committed sexual intercourse with her, when her step mother noticed her with the accused. She intimated rt this fact to her husband who took the prosecutrix to the house of accused and asked whether accused would marry the prosecutrix but accused refused to marry the prosecutrix. Thereafter father of the prosecutrix and her step mother along with prosecutrix went to Police Station on 4.4.2009 where statement of the prosecutrix was recorded under Section 154 Cr.P.C., on the basis of which, FIR No. 60/2009 was registered at Police Station, Jawalamukhi.
4. Thereafter prosecutrix was got medically examined at PHC, Khundian. This was followed by investigation carried by the police.
Investigation, inter alia, revealed that accused used to talk with prosecutrix from his Mobile No. 98164 -88373 on her Mobile No. 98164-39028. Police also moved an application to Principal, Govt. Sr. Secondary School, Sehorpain in order to ascertain the age of he prosecutrix and also moved an application to Secretary, Gram Panchayat Alampur to obtain the birth ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 3 certificate of the prosecutrix. Thereafter Investigating Officer recorded the statements of witne sses under Section 161 Cr. P.C. He obtained MLC of the prosecutrix as well as that of the accused and collected evidence with .
regard to the age of the prosecutrix.
5. After completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, he was charged for commission of offences punishable under Sections 376 and 406 IPC, to which accused pleaded not guilty and claimed trial.
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6. Learned trial court vide its judgment dated 23.4.2014 acquitted the accused of the charges framed against him. While acquitting rt the accused it was held by learned trial court that prosecution had failed to prove its case against the accused under Section 376 IPC. Learned trial court held that date of birth of the prosecutrix was 6.2.1991 and hence she was not a minor. Learned trial court further held that prosecutrix was got medically examined by PW11, Dr. Arti Chaudhary, who issued MLC and it was evident from the MLC that PW11 did not notice any injury or mark of violence over the body of the prosecutrix. Learned trial court also held that in the absence of any injury on her private part or any other part of the body of the prosecutrix, it would be unsafe to hold that any force or violence was used. Learned trial court while relying upon the judgment of Hon'ble Supreme Court in Masauddin Ahmed Vs. State of Assam, 2009 (6) RAJ 232 held that non existence of injury or any mark of violence on the person of the prosecutrix despite the fact that she had admitted sexual intercourse with the accused four times was clearly suggestive of the fact that sexual ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 4 intercourse with accused was consensual which could not be termed as rape. Learned trial court further held that as far as Section 406 IPC was concerned, it had been held by Hon'ble Supreme Court in Pradeep Kumar .
alias Pradeep Kumar Verma Vs. State of Bihar and another, 2007(4), RAJ Recent Apex Judgment 548, that if accused had promised to marry prosecutrix but had not married, no offence of breach of trust as is envisaged under Section 406 was made out, as Section 406 IPC was related only to entrustment of property or dominion over the propert y. On these of bases learned trial court held that shaky and unreliable prosecution evidence was not sufficient to convict the accused and accordingly it gave rt benefit of doubt to the accused.
7. Feeling aggrieved by the judgment so passed by the learned trial Court, the State has filed this appeal.
8. We have heard Mr. Vikram Thakur, Deputy Advocate General for the State as well as Mr. N.K. Thakur learned Senior Counsel for the accused and have also gone through the records of the case as well as judgment passed by learned trial court.
9. Before proceeding further, it is relevant to take note of the fact that in the present case, the accused has the benefit of being acquitted by the learned trial Court.
10. The Hon'ble Supreme Court in Mohammed Ankoos and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad , (2010) 1 Supreme Court Cases 94 has held:
::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 5"12. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court should not .
ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh1 shall suffice of wherein this Court considered a long line of cases and held thus : (SCC p.477, paras 69 -70) rt "69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when (2008) 10 SCC 450 he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence.
There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well-settled principles ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 6 crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial .
and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
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(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
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(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached --one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."
11. In State of Himachal Pradesh Vs. Kahan Chand, 2016 (1) Drugs Cases (Narcotics) 576, a Coordinate Bench of this Court has held as under:-
"19. The accused has had the advantage of having been acquitted by the Court below. Keep ing in view ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 7 the ratio of law laid down by the Apex Court in Mohamed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has .
resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged."
12. In this background, now this Court has to scrutinize the judgment passed by the learned trial Court as well as the evidence adduced of on record by the prosecution to ascertain as to whether the findings of acquittal returned by the learned trial Court are borne out from the records rt of the case or the judgment so passed by the learned trial Court is hit by perversity.
13. In order to prove its case, the prosecution in all examined 18 witnesses, whereas defence examined one witness.
14. FIR is on record as Ext. PW1/A, which is dated 4.4.2009.
The same was registered on the basis of statement made by the prosecutrix under Section 154 of the Cr.P.C. Birth certificate of the prosecutrix is on record as Ext. PW7/B, as per which her date of birth is 6.2.1991. It is so recorded in the FIR that the prosecutrix was a resident of Village Rainkha and that her father was a driver in Jwalamukhi Hospital. In the month of February, 2007 in a marriage in their village she came in contact with accused and after 15 days accused met her on her way from Sehorpain where she was studying in class 10 and accused told her that he wanted to have friendship with her and she also gave her consent. It is further ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 8 mentioned in the FIR that thereafter both of them met each other and after three months accused told her that he wanted to marry her and prosecutrix also gave her consent. In April, 2007 Ravi (accused) called her on phone .
in the fields near her house and after giving her allurement of marriage he committed sexual intercourse with her. Thereafter Ravi had sexua l intercourse with her about four times and on 20.3.2009 between 2/2:30 p.m. accused called the prosecutrix on phone and asked her to come in the fields and committed sexual intercourse with the prosecutrix when the y were of caught by the step mother of the prosecutrix who informed this fact to her father and on whose asking she disclosed the entire events to him. It is rt further mentioned in the FIR that thereafter her father took her to the house of accused and asked him whether he was willing to marry the prosecutrix who refused to marry her and on these basis the FIR was lodged.
15. A perusal of the statement of prosecutrix who entered the witness box as PW1 demonstrates that in her cross-examination, she admitted that she had completed 16 years of age in the month of April, 2007. She also admitted the fact that she had never reported the matter in April, 2007 to the police nor had she disclosed the matter to anyone in her house. She also stated that she had not reported the matter to the police or anyone in her family against the accused in October, 2008. She also admitted that she had not lodged any report even when accused had sexual intercourse with her on the 3 rd occasion. She admitted it to be correct that there were 6-7 houses adjoining to the house of her father. She also admitted it to be correct that accused was of different caste and community ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 9 than her. She also deposed that her marriage had taken place about one and half years ago and she had executed affidavit, Ext. D1, which subsequently she stated, was executed on the pretext that accused would pay Rs. 2.00 Lac .
in case he would not marry her. She admitted it to be correct that this was not so recorded in the affidavit Ext. D1 or anywhere else. She again self stated that accused had promised her to pay Rs. 2.00 lac in case he would not marry her. She denied that the affidavit was executed voluntarily. She admitted that she had not reported the matter anywhere regarding her of resistance during the course of the accused having sexual interco urse with her. rt
16. Father of the prosecutrix entered the witness box as PW2 and deposed that on 25.3.2009, his wife Babli told him that she had seen accused and prosecutrix in a compromising position and when she made enquiries from her daughter, she told her that accused had promised her to marry and had committed sexual intercourse with her. He further deposed that prosecutrix told him that accused had committed sexual intercourse with her four times on the pretext of marriage. He also deposed that thereafter he took his daughter to the house of accused on 31.3.2009 and enquired from the accused whether he had promised to marry her and accused replied that he could not marry his daughter. He further deposed that he tried to contact accused for about 3-4 days but accused could not be contacted and thereafter he took his daughter and wife to the Police Station where statements of the prosecutrix as well as his wife were recorded. In his cross-examination he was confronted with his statement recorded by the ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 10 police on 4.4.2009 wherein it was not so recorded that he had tried to contact accused for about 3 to 4 times but could not do so. He further admitted in his cross-examination that his daughter never told him about .
her relations with the accused. He admitted the suggestion that his daughter intended to marry the accused. He denied that when accused refused to marry his daughter then a false case was registered against him. He admitted that there were other residential houses near his house.
17. PW3 Rajesh Kumar, Principal Sr. Sec. School Sehorpain, of Tehsil Jawalamukhi proved the birth certificate of the prosecutrix, as per which the date of birth of the prosecutrix was 6.2.1991.
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18. Dr. Arti Chaudhary entered the witness box as PW11 and she deposed that in the year 2009 she was posted as Medical Officer at PHC, Khundian and on an application so moved by the police she had conducted medical examination of the prosecutrix on 4.4.2009. This witness further deposed that local examination of the prosecutrix revealed no marks of violence on any part of the body. She also stated in her deposition that as per her opinion prosecutrix was habitual of sexual intercourse but there was no evidence of recent sexual intercourse.
19. PW16, Shakti Singh, deposed in the Court that in the year 2009 he was Pradhan of Gram Panchayat, Dhawala and that accused belongs to his Panchayat. He further deposed that on 31.3.2009 Pinku along with his daughter came to his residence and told him that accused had committed sexual intercourse with his daughter on the pretext of marrying her. He further deposed that on that very day he along with father of the ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 11 prosecutrix (Pinku) and the prosecutrix went to the house of accused but accused refused to marry the prosecutrix. In his cross-examination he deposed that police recorded his statement 2-3 days after 31.3.2009 and it .
was correct that he had got recorded in his statement that accused refused to marry prosecutrix and had told that he (accused) had not committed anything wrong with the prosecutrix.
20. SI Mehar Singh entered into the witness box as PW18 and in his cross-examination this witness deposed that it was correct that in FIR of prosecutrix had made mention of April, 2007 and of 20.3.2009, as the period between which she was firstly and lastly subjected to sexual rt intercourse by the accused but FIR was lodged in April, 2009. He further deposed that alleged spot of occurrence was open and he further deposed that no phone call details were obtained by him from the STD of Munish Kumar and of Mobile Nos. 98164-88373 and 98164-39028. He admitted it to be correct that younger sister and brothers of the prosecutrix resided with her in the same house with parents and grand parents.
21. A perusal of the evidence placed on record by the prosecution both ocular as well as documentary demonstrates and establishes that it is not as if the prosecutrix had voluntarily lodged a complaint against the accused on the alleged grounds that accused had established sexual relations with her on the pretext of marriage and because accused had refused to marry her, therefore, she was lodging the complaint. It is borne out from the record that in fact the prosecutrix and the accused were caught in a compromising position by the step mother of prosecutrix and it is ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 12 thereafter at the instance of the father of the prosecutrix that she lodged the complaint against the accused in the police station. In other words, till the time prosecutrix and accused were found in a compromising position by the .
step mother of prosecutrix, there is no evidence on record from which it can be inferred that accused had established sexual relations with her on the allurement of marrying her or against her consent. It has come in the statement of prosecutrix herself that she had not disclosed the factum of her relationship with the accused to anyone. It is also a matter of record that of time span which has been given by the prosecutrix herself during which as per her accused committed sexual intercourse with her is of more than two rt years. It is difficult to believe that accused had sexual intercourse with the prosecutrix on about four occasions and that too within a time span of 2 years and prosecutrix was not a consenting party to the said act. It is apparent and evident from the statement of PW11, Dr. Arti Chaudhary, who had medically examined the prosecutrix that she was habitual of sex. It has also come in the statement of said doctor that neither any injury marks were found on the body of the prosecutrix nor it was evident that she was subjected to recent sexual intercourse.
22. Be that as it may, the fact of the matter remains that there is nothing on record from which it can be inferred that in fact accused had established sexual relations with the prosecutrix by giving her allurement of marriage . Not only this there is no material on record from which it can be inferred that accused entered into physical relations with the prosecutrix against her will and without her consent. Birth certificate of the prosecutrix ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 13 Ext. PW7/B demonstrates that her date of birth is 16.2.1991 meaning thereby that as on the date when the FIR was lodged by her she was more than 18 years of age and even during the period when according to her .
accused maintained sexual relations with her she was more than 16 years of age and was in a position to understand and be a consenting party to the said acts. Besides this a perusal of the statement of prosecutrix itself demonstrates that her statement is neither trustworthy nor reliable so as to be made the basis for convicting the accused.
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23. As we have already discussed it is not as if the prosecutrix voluntarily on her own lodged the FIR against the accused but the said FIR rt was lodged after she was caught by her step mother in a compromising position with the accused. In these circumstances, it cannot be said that accused had established sexual relations with the prosecutrix against her will or without her consent or accused had entered into sexual relations with the prosecutrix by giving her allurement of marriage . In the absence of any such evidence placed on record by the prosecution these conclusions in our opinion cannot be arrived at just on the basis of conjectures and surmises.
24. This Court is not oblivious to the fact that in a case under Section 376 of the Indian Penal Code, the sole testimony of the prosecutrix is enough to hold the accused guilty, but then such deposition of the prosecutrix has to be cogent, reliable and trustworthy. In this case, according to us, the statement of the prosecutrix is neither cogent, nor reliable nor the same is trustworthy. Besides this, it has come in the ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 14 statement of Dr. Arti Chaudhary, who has medically examined the prosecutrix that neither any marks have been found on the body of the prosecutrix of violence and further that the prosecutrix was habitual to sex.
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25. It is settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. This is for the reason that the prosecutrix stands at a higher pedestal than an injured witness. However, of the fact still remains that the testimony of the prosecutrix on the face of it has to be acceptable. {See State of U.P. Vs. Pappu alias Yunus and another rt (2005) 3 Supreme Court Cases 594}.
26. Though it is settled law that corroboration is not sine qua non for conviction in a rape case, however, it is relevant to refer to the judgment of Hon'ble Supreme Court in Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, in which it has been observed as under:
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction bu t that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...."
27. In our considered view, in the facts of the present case, as they emerge from the evidence which has been placed on record by the prosecution, it cannot be said that the testimony of the prosecutrix is either cogent or it is trustworthy, reliable or the ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 15 same seems to be truthful. Further, the credibility of the testimony of the prosecutrix has also been impinged by the defence in her cross -examination. At the cost of repetition, we state that the prosecution has not been able to produce iota of evidence to .
substantiate that prosecutrix was raped by the accused on the promise of marriage.
28. The Hon'ble Supreme Court has held in State of Punjab Vs. Gurmit Singh and others , (1996) 2 Supreme Court Cases 384:
of "x x x x x x x x x x The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just rt to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 16 sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, .
but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, wh ich is not found of to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great rt weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over- looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990 (1) SCC 550) Ahmadi, J. (as the ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 17 Lord Chief Justice then was) speaking for the Bench summarised the position in the following words: (SCC p. 559, para 16) "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The .
Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the of evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that rt it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the fa cts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 18 charged, the court should ordinarily have no hesitation in accepting her evidence. "
29. The Hon'ble Supreme Court in Radhu Vs. State of Madhya Pradesh, (2007) 12 Supreme Court Cases 5 7 has held:
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" 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 of 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 rt requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the 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 ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 19 not would depend ultimately on the facts and circumstances of each case."
30. In Narender Kumar Vs. State (NCT of Delhi), (2012) 7 Supreme Court Cases 171, the Hon'ble Supreme Court has held:
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"20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are of compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under 1 rt Page 12 the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of th e subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P and Vishnu v. State of Maharashtra).
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 20 and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra.
23. In Jai Krishna Mandal & Anr. v. State of .
Jharkhand, this Court while dealing with the issue held: (SCC p. 535, para 4) "4.......the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
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31. In Munna Vs. State of Madhya Pradesh, (2014) 10 Supreme Court Cases 254, the Hon'ble Supreme Court has been pleased to held:
rt "7. We are conscious that testimony of the prosecutrix is almost at par with an injured witness and can be acted upon without corroboration as held in various decisions of this Court. Reference may be made to some of the leading judgments.
8. In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, this Court held as under (SCC pp. 224 -26, paras 9-10) "9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains o f rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 21 feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and 1 (1983) 3 SCC 217 Page 5 5 its .
own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical.
rt
10. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault ........ The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 22 is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by .
others will always haunt her. (8) She would feel extremely embarassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and of family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more rt often than not, want to avoid publicity on account of the fear of social Page 6 6 stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
9. In State of Maharashtra vs. Chandraprakash Kewalchand Jain, this Court held as under : (SCC pp. 558 - 60, paras 15-17) "15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the court bases a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 23 corroboration before acting on the evidence of the prosecutrix ? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of .
fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence.
According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from of giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an rt accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not 2 (1990) 1 SCC 550 Page 7 7 illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).
16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 24 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is .
that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to of illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it rt may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a pro secutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 25"It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we .
may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her of accusation.
17. We think it proper, having regard to the increase in the number of sex violation cases in the recent rt past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour.
Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 26 and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct .
evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
10. Similar observations were made in State of Punjab vs. Gurmit Singh, as under : (SCC pp. 395 -96, para 8) of "8......The courts must, while eva luating evidence, remain alive to the fact that in a case of rape, no self -respecting woman would come forward in a court just to make a rt humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexua l molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to th row out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 27 sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, .
but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not of found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to rt great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial 3 (1996) 2 SCC 384 Page 10 10 credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the ca se spoken of by the victim of sex crime strikes the judicial mind as probable."
(emphasis in original) ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 28
11. Thus, while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114A of the Evidence Act but if such statement has inherent infirmities, creating .
doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving of benefit of doubt to the accused."
32. The Hon'ble Supreme Court of India in Manoharlal Vs. State rt of Madhya Pradesh, (2014) 15 Supreme Court Cases 587 has held:
"8. Though as a matter of law the sole testimony of the prosecutrix can sufficiently be relied upon to bring home the case against the accused, in the instant case we find her version to be improbable and difficult to accept on its face value. The law on the point is very succinctly stated in Narender Kumar v. State (NCT of Delhi), to which one of us (Dipak Misra, J). was a party, in following terms:
(SCC p. 178, paras 29 and 21) "20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence 4 Page 5 and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 29 insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime.
Her testimony has to be appreciated on the principle of .
probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge.
However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial which may lend of assurance to her testimony."
(emphasis in original)
9. Having found it difficult to accept her testimony on rt its face value, we searched for support from other material but find complete lack of corroboration on material particulars. First, the medical examination of the victim did not result in any definite opinion that she was subjected to rape. Secondly, Riyaz who was like a brother to the victim and thus a close confidant, has not supported the case of the prosecution and has completely denied having met her when she allegedly narrated the in cident to him. Thirdly the person who was 5 Page 6 suffering from fever and to whose house she was first taken by the appellant was not examined at all. Fourthly, the policeman who the victim met during the night was also not examined. Fifthly, neither the brother nor any of the parents of the victim were examined to corroborate the version that she had come from the village of her brother and alighted around 10:00 P.M. at Bajna bus stand. Lastly, the sequence of events as narrated would show that she had allegedly accompanied the appellant to various places. In the circumstances, we find extreme difficulty in relying upon the version of the victim alone to bring home the charge against the ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 30 appellant. We are inclined to give benefit of doubt to the appellant."
33. It is also relevant to refer to the judgment of the Hon'ble Supreme Court in Tilak Raj Vs. State of Himachal Pradesh, AIR 2016 .
Supreme Court 406, in which the Hon'ble Supreme Court has held:
"19. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the of prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she rt was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.
23. From the aforesaid, it is clear that the evidence of the prosecution is neither believable nor reliable to bring home the charges leveled against th e appellant. We are of the view that the impugned judgment and order passed by the High Court is not based on a careful re-appraisal of the evidence on record by the High Court and there is no material evidence on record to show that the appellant is guilty of the charged offences i.e., offence of cheating punishable under Section 417 of IPC and offence of criminal intimidation punishable under Section 506 part I of IPC. "
34. The Hon'ble Supreme Court in Uday Vs. State of Karnataka (2003) 4 Supreme Court Cases 46 has held:-
"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 31 with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula .
for determining wheth er consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before of it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the rt consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
22. The approa ch to the subject of consent as indicated by the Punjab High Court in Rao Harnarain Singh and by the Kerla High Court in Vijayan Pillai has found approval by this Court in State of H.P. Vs. Mango Ram. Balakrishanan, J. speaking for the Court observed: (SCC pp.230 -31, para 13) "The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 32
Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
23. Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix .
was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the pro posal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant of when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she rt kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances, lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.
24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 33 the prosecutrix and her brother the appellant distanced himself from her.
25. There is yet another difficulty which fa ces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section .
90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to of consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste rt considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellate knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due couse. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O' clock in the night. It usually happens ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 34 in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise .
loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual of intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very rt difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."
35. Recently, the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Munna (2016) 1 Supreme Court Cases 696 has held that consensual sex by a girl who is more than 16 years of age cannot be termed as rape.
36. A perusal of the judgment passed by the learned trial court also demonstrates that all aspects of the matter have been taken into consideration by the learned trial court and in our considered view the findings returned by the learned trial court to the effect that prosecution was not able to bring home the guilt of the accused beyond all reasonable doubt ::: Downloaded on - 15/04/2017 21:53:31 :::HCHP 35 cannot be faulted with. We concur with the findings so returned by the learned trial court. In our considered view also the material produced on record by the prosecution does not prove beyond reasonable doubt the guilt .
of the accused for commission of offences punishable under Sections 376 and 406 of IPC, as even the ingredients of Section 406 IPC have not been proved against the accused by the prosecution, as has been rightly held by learned trial court.
Accordingly, while upholding the judgment passed by the of learned trial Court, we dismiss the present appeal being devoid of merit.
rt (Sanjay Karol)
Judge
(Ajay Mohan Goel)
Judge
11th January, 2017.
(Guleria)
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