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Himachal Pradesh High Court

Lalit Kumar vs State Of Himachal Pradesh on 16 August, 2017

Author: Chander Bhusan Barowalia

Bench: Chander Bhusan Barowalia

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 361 of 2016 Reserved on: 25.07.2017 Decided on: 16.08.2017 .

__________________________________________________________ Lalit Kumar .....Appellant.

Versus State of Himachal Pradesh ......Respondent. __________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.

approved for reporting? Yes.

1 Whether __________________________________________________________ For the appellant: Mr. Anoop Chitkara and Ms. rSheetal Vyas, Advocates.

For the respondent: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Dy.

AG and Mr. Rajat Chauhan, Law Officer, for the respondent-State.

Chander Bhusan Barowalia, Judge.

The instant appeal has been preferred by the appellant/convict/accused (hereinafter referred to as "the accused") laying challenge to the judgment, dated 22.07.2016, passed by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 9-N/7 of 2013, whereby the accused was convicted for the commission of offence punishable under Sections 376, read with Section 511, and 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Section 506 of Indian Penal Code, 1860 (hereinafter referred to as "IPC").

2. Tersely, the facts giving rise to the present appeal, as .

per the prosecution, are that on 14.01.2013, Smt. Nirmala Devi (complainant), lodged a report with the police that she lives in Housing Board Colony, Nahan, alongwith her husband and children and her husband is serving in the office of District & Sessions Court, Nahan. As per the complainant, she has two daughters, elder daughter is 20 years of age and younger daughter, the prosecutrix (name withheld) is about 18 years of age. She has further alleged that on14.01.2013, around 12:30 p.m., she went to her neighbor's house to give vegetables and the prosecutrix was made to sit in the room, however, on her return, around 01:00 p.m., she noticed the prosecutrix coming out from the back door of the house of accused, who is working as Process Server in the Court, and she was pulling her shirt downwards. The prosecutrix was shivering, having teary eyes and on asking she told her that the accused called her to his room. On relentless questioning, the prosecutrix divulged that accused opened her pant and did wrongful act with her. The complainant checked the private parts of the prosecutrix and noticed some liquid creamy substance. The complainant ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 3 further alleged that prior to this incident, the accused had also done wrongful act with the prosecutrix. Consequently, the complainant telephonically informed her husband and when he .

came to the house, the complainant narrated the entire incidence to him. The husband of the complainant further called his brother, Shri Amarjeet Singh, and all of them went to police station for lodging a report. Report was registered and investigation ensued. During the course of investigation, the prosecutrix was medically examined, spot map was prepared and the statements of the witnesses were recorded. The accused was arrested and was medically examined. The room of the accused was thoroughly inspected and the police took into possession a bed sheet, at the instance of the prosecutrix, which was sealed in a parcel having seal impression 'I'. The accused gave demarcation of the spot, whereupon spot map, Ex. PW-13/D, was prepared. On 16.01.2013, the accused got recovered one tube of 'Boro Plus Cream' which was taken into possession vide separate memo, Ex. PW-5/B and the same was sealed. The parcels were sent to SFSL, Junga, for chemical analysis. As per the prosecution, the prosecutrix was suffering from mild mental retardation and qua this aspect she was medically examined by Dr. Pravesh Aggarwal and her disability ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 4 certificate, Ex. PW-11/A, was obtained. As per the opinion of the doctor, the mental age of the prosecutrix was opined as seven years. The police, after completion of the investigation, .

concluded that the accused did not commit any sexual assault on the prosecutrix, however, he attempted to commit rape, thus Section 376 IPC was deleted and chargesheet was filed for the commission of offence punishable under Section 376 read with Section 511 IPC. After completion of investigation, challan was presented in the Court.

3. The prosecution, in order to prove its case, examined as many as thirteen witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution case and claimed innocence. A court witness was examined and the accused, in defence, examined a witness.

4. The learned Trial Court, vide impugned judgment dated 25.07.2016, convicted the accused for the commission of offence punishable under Section 376 read with Section 511 IPC and sentenced him to undergo rigorous imprisonment for five years and to pay fine of `20,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for two months. The accused was further sentenced to undergo simple imprisonment for six months and ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 5 to pay fine of `5000/- and in default of payment of fine, to undergo simple imprisonment for one month for the offence punishable under Section 506 IPC. The learned Trial Court .

also ordered that out of the fine amount, `20,000/- shall be paid to the prosecutrix, as compensation, hence the present appeal.

5. I have heard Mr. Anoop Chitkara, Advocate, learned Counsel for the appellant (accused) and Mr. Virender K. Verma, learned Additional Advocate General for the respondent/State.

6. Mr. Chitkara has argued that the story of the prosecution is totally improbable and unconvincing. The findings of conviction, as recorded by the learned Court below, are based on surmises and conjectures and the learned Court below has failed to take into consideration the evidence to its true perspective. He has further argued that the statements of the witnesses are contradictory and do not inspire confidence.

The learned Court below, without their being any evidence on record, has passed the conviction and sentenced the appellant, which is required to be set-aside. In contrast to what has been argued by the learned counsel for the appellant, Mr. Verma, learned Additional Advocate General, has argued that the accused has committed a heinous crime in the broad day light.

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He has further argued that statements of PW-1, Smt. Nirmala Devi (mother of the prosecutrix), and the prosecutrix clearly prove the guilt of the accused, thus no interference is required .

in the well reasoned judgment passed by the learned Trial Court. He has prayed that the appeal is without merits and the same may be dismissed.

7. In rebuttal, Mr. Chitkara has vehemently argued that the statement of PW-1, Smt. Nirmala Devi, is wholly unreliable, as there are material contradictions in it and the statement of the prosecutrix also cannot be relied upon, as the her version did not find any lateral support from the medical evidence/forensic report. He has further argued that the prosecution has failed to connect the accused with the alleged offence and so the presence of the accused on the spot of occurrence at the relevant time is shrouded with doubt. He has argued that it is emanating that the accused was found fit for performing sexual intercourse and the prosecutrix has also deposed that earlier to the alleged occurrence, the accused had committed bad act with her, however, the medical evidence does not support this part of the statement of the prosecutrix.

He has argued that in the above enumerated circumstances, the appellant cannot be convicted, as the prosecution has failed ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 7 to prove the guilt of the accused beyond the shadow of reasonable doubt.

8. In order to appreciate the rival contentions of the .

parties, I have gone through the record carefully and in detail.

9. PW-1, Smt. Nirmala Devi (mother of the prosecutrix) deposed that her younger daughter (prosecutrix) was studying in 10th standard and her date of birth is 16.10.1994. On 14.01.2013, around 12:30 p.m., the prosecutrix was made to sit in the room and she went to neighbor's house for giving vegetables. On her return, after 10/12 minutes, she did not find the prosecutrix in the room and she repeatedly called out the prosecutrix from her nick name. Owing to her calls the prosecutrix came out from the room of the accused. She was shivering and adjusting her dress. The prosecutrix disclosed to PW-1 that the accused has called her. The prosecutrix was weeping and when PW-1 asked her why she is weeping, she divulged that she could not tell as the accused told her to kill her parents, in case she divulges anything to anyone. On relentless inquires, the prosecutrix disclosed that accused committed sexual assault upon her. Subsequently, PW-1 telephoned her husband and when he came from his office, she disclosed the incident to him. This witness has further deposed ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 8 that they called their relative, Amarjeet, who met them en route police station. She has further deposed that she, her husband, prosecutrix and Amarjeet went to Police Station, Nahan, and .

lodged FIR, Ex. PW-1/A. The prosecutrix was medically examined and police investigated the matter. This witness, in her cross-examination, has deposed that when she was standing on the back door of her accommodation, she herself saw the prosecutrix coming out from the room of the accused.

The rooms of the accused were in the same building and she searched the prosecutrix in her two rooms, kitchen, bathroom, thereafter, she called out the name of the prosecutrix from inside the rooms. She has deposed that there was a gali (street) towards the back side of their accommodation where they had installed a chulaha (hearth) for heating water and for preparing chapaties. She denied the suggestion that smoke of the hearth used to go to the house of the accused for which the accused objected many times. She also denied the suggestion that due to the installation of said hearth, the accused and their family used to have altercations.

10. The prosecutrix was examined as PW-2. She has deposed that in the year 2013 she was studying in 9th class and on the day of occurrence when she was studying in her room, ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 9 her mother had gone to the house of neighbour (Smt. Anju) for giving vegetables, the accused called her in his room. She went to the room of the accused and he opened her pant and she was .

laid down on the bed by him. She has further deposed thereafter the accused committed bad act with her. The accused also applied cream and massaged her private parts.

The prosecutrix has further deposed that earlier also the accused had done bad act with her. She has deposed that accused threatened that he will kill her parents, in case she discloses anything to anyone. As per the statement of the prosecutrix, when her mother called her, she came out from the back door of the accommodation of the accused. Thereafter, she narrated the entire incidence to her mother and she checked her private part and found cream thereon. Her mother informed her father and thereafter she was taken to police station by her mother, father and uncle Amarjeet. She was medically examined. The police visited the spot and she identified bed sheet, Ex. P-2, which was taken into possession by the police, vide seizure memo Ex. PW-2/A. The prosecutrix, in her cross-examination, could not tell when earlier sexual assault was committed by the accused. She has further deposed that she never saw the tube of borolin cream. She also ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 10 could not tell that for how long she remained in the room of the accused. As per her statement, she was taken to the same room of the accused by the police on the next day. She did not .

tell to the police qua the threatening given by the accused.

11. PW-3, Shri Amarjeet Singh, uncle of the prosecutrix, deposed that on 14.01.2013 his brother Shri Devinder Singh (PW-11) called him to his accommodation. He met his brother, his wife (Smt. Nirmala Devi, PW-1) and the prosecutrix en route to police station. The parents of the prosecutrix informed him about the occurrence. Smt. Nirmala Devi, PW-1, lodged a report in the police station and prosecutrix was taken for medical examination. On the subsequent day, the prosecutrix identified the room and a bed sheet. The identified bed sheet was taken into possession vide memo Ex. PW-2/A and was sealed in a cloth parcel, which was signed by the prosecutrix and by him. This witness, in his cross-examination, has deposed that where the accused and the prosecutrix used to reside, there are 30 to 40 government accommodations. As per this witness, he was with the prosecutrix when she was taken to hospital for medical examination. He feigned his ignorance whether the police visited the house of the prosecutrix and the accused on the same day or not. He also feigned his ignorance ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 11 whether on the day of occurrence there were vacations in the school. He further deposed that he did not go in the room of the accused when the police visited the spot and bed sheet, Ex.

.

P-2, was shown to him by the police in the lawn of the government accommodation. As per this witness, no neighbours were present when the bed sheet, Ex. P-2, was taken into possession. He also feigned his ignorance that due to the smoke of the hearth, there was dispute between the accused and the parents of the prosecutrix.

12. PW-4, Smt. Anju Sharma, deposed that on 14.01.2013, around 12:30 - 12:45 p.m., Smt. Nirmala Devi (PW-1) came to her house for giving vegetables to her. After giving vegetables to her and talking with her, she returned to her house. Subsequently, she (PW-4) came to know about the occurrence. This witness, in her cross-examination, has deposed that there are two accommodations in between their house and the house of Smt. Nirmala Devi (PW-1). As per this witness, PW-1 told her that she has brought vegetables from the village. Smt. Nirmala Devi (PW-1) stayed in her house for about a minute. PW-5, Constable Sanjeev Kumar, deposed that on 16.01.2013 the accused gave demarcation of his house at Housing Board Colony, Nahan, and memo, Ex. PW-5/A, was ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 12 prepared in this regard, which bears his signatures. He has further deposed that accused also got recovered a tube of boroplus cream from a room of his accommodation and the .

same was used tube. The said tube was put in a cloth parcel and sealed with seal impression 'I' at two places and facsimile seal was separately taken on a piece of cloth. As per this witness, said parcel was taken into possession, vide memo Ex.

PW-5/B, which was signed by him. This witness, in his cross-

examination, has deposed that the Investigating Officer did not make any inquiry from the accused in his presence. Head Constable Gurdayal Singh recovered tube, Ex. P-4, of boroplus cream when two-three persons were present there. As per this witness, tube of boroplus cream was lying in the next room on double bed. Memo, Ex. PW-5/A, qua demarcation of the house of the accused and seizure of a tube of boroplus cream, Ex. PW-

5/B, were prepared by HC Gurdayal Singh.

13. Dr. Gopal Ashish Sharma, Medical Officer, R.H. Nahan (PW-6), deposed that on 15.01.2013, police moved application, Ex. PW-6/A, for conducting medical examination of the accused and the same was marked to him. He conducted the medical examination of the accused and found no signs of fresh injury on any part of the body of the accused. He found ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 13 the accused fit to perform sexual act. He preserved the underwear and pubic hair of the accused, which were sealed and handed over to the police by him. He issued medico legal .

certificate, Ex. PW-6/B, qua the accused. This witness, in his cross-examination, has deposed that by naked eyes he did not see any stains on the underwear and pubic hair of the accused.

14. PW-7, Constable Raj Kumar, deposed that on 19.01.2013, MHC, Sandeep Negi, vide RC No. 11/13, dated 19.01.2013, handed over to him six sealed parcels with sample seals 'RH' and 'I' for being deposited in State Forensic Science Laboratory, Junga. As per his statement, he deposited the said case property on the same day in State Forensic Science Laboratory, Junga, and on return RC was handed over to MHC.

The case property remained intact under his custody. PW-8, HHC Krishan Kumar, deposed that on 14.01.2013 and 15.01.2013, he videographed the statements of Nirmala Devi and other witnesses and converted the same into CD, which was handed over to the police on 20.01.2013. This witness, in his cross-examination, has deposed that on 14.01.2013 he videographed the statement of Nirmala Devi (PW-1) at Police Station, Nahan and on 15.01.2013, he videographed the statement of the prosecutrix in Housing Board Colony.

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15. PW-9, Dr. Shahida Ali, S.M.O., R.H. Nahan, deposed that on 14.01.2013 police moved an application, Ex. PW-9/A, for medical examination of the prosecutrix, who was brought .

with alleged history of sexual intercourse, and she conducted her medical examination. The version of this witness is re-

extracted as under:

"On examination:- She was wearing the same dress and underwear, passed urine one time after the incident, there was no difficulty in urination. Her gait was normal.

On examination:- No injury mark was found on lips, cheeks, neck, breasts, chest, back and abdomen. Dark pink coloured underwear having staining on inner side sealed and handed over to the police for forensic lab examination. Pubic hair 3 cm long not matted shaved sealed and handed over to the police for forensic lab report. No staining or injury mark found on inner sides of thighs. Labia majora minora well developed and no staining seen on external genetalia. Her hymen was found intact, forchette intact, swab taken from the vagina. Smear formed on slide, dried and slide handed over to the police for forensic lab report.

Per vaginal examination:- Vagina admits one finger with difficulty, uterous was normal size and non-tender. The forensic report received on 14 February, 2013 and as per the report blood and semen was not detected on vaginal smear slides, pubic hair and underwear."

As per the final opinion of this witness, there was nothing suggesting fresh sexual intercourse. She issued Medico Legal Certificate, Ex. PW-9/B, qua the prosecutrix, which bears her ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 15 signatures.

16. PW-10, Head Constable Sandeep Negi, deposed that on 14.01.2013, Lady Constables Vijay Laxmi and Laxmi handed .

over to him two parcels of cloth, which were sealed with seal impression 'RH' alongwith samples of seal. He made entry to this effect in malkhana register at Sr. No. 205. He has further deposed that on 15.01.2013, Constable Raj Kumar, gave to him three sealed parcels of cloth, which were sealed with seal impression 'RH' alongwith a sample of seal and he made entry to this effect in the malkhana register at Sr. No. 207/13. On the same day, that is, 15.01.2013, ASI Lekh Raj also gave him a sealed parcel of cloth, which was sealed with seal impression 'I' and he made entry to this effect in the malkhana register at Sr.No. 208/13. On 16.01.2013, ASI Lekh Raj handed over to him a sealed parcel of cloth, which was sealed with seal impression 'I', alongwith sample of seal impression 'I'. To this effect, he made an entry in the malkhana register at Sr. No. 210/13. He has further deposed that the said case property was handed over to Constable Raj Kumar for being depositing at State Forensic Science Laboratory, Junga, vide RC No. 11/13, dated 19.01.2013. Constable Raj Kumar, after depositing the case property in State Forensic Science ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 16 Laboratory, Junga, handed over to him RC.

17. PW-11, Shri Devinder Singh (father of the prosecutrix) deposed that he is working as Civil Ahlmad in the .

Court of Additional District and Sessions Judge, Sirmaur at Nahan and he used to reside with his family in government accommodation, New Housing Board Colony, Nahan. As per this witness, his daughter (prosecutrix) was about 19 years of age and suffering from mild mental retardation. On 14.01.2013 when he was working in his office, he received mobile call from his wife (PW-1), who asked him to come immediately. When he reached the house, his wife narrated the incident to him. As per this witness, the prosecutrix, who was panic-stricken, narrated the incident to him. He informed his younger brother, Shri Amar Jeet Singh (PW-3), on mobile phone and subsequently went to Police Station for lodging the report. As per this witness, the prosecutrix was medically examined in Government Hospital and his wife (PW-1) got identified the house of the accused. He has further deposed that the prosecutrix was examined qua mils mental retardation and report in this regard is Ex. PW-11/A. This witness, in his cross-examination, has deposed that he, in his statement under Section 161 Cr.P.C. recorded by the police, divulged that his ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 17 wife (PW-1) went to the house of Smt. Anju (PW-4) at 12:30 p.m. and returned at 01:00 p.m. He further deposed that he divulged to the police that the prosecutrix is mentally retarded, .

whereas in his statement recorded by the police it is not so recorded.

18. PW-12, Dr. Pravesh Aggarwal, Medical Officer, R.H. Nahan, deposed that on 20.04.2013 he referred the prosecutrix to PGI, Chandigarh, for intelligence quotient assessment. The prosecutrix was examined at PGI, Chandigarh, by Dr. Devinder Kumar Rana, and the intelligence quotient of the prosecutrix was assessed as 51 (mild mental retardation). He has further deposed that the mental age of the prosecutrix was assessed as seven years. On the basis of the report of the PGI, Chandigarh, District Medical Board of District Sirmaur, of which he was a member, gave 40% disability certificate, vide certificate No. 251, dated 15.06.2013, copy of which is Ex. PW-11/A. This witness, in his cross-examination, has denied the suggestion that a false disability certificate had been issued by them.

19. PW-13, SI Lekh Raj (Investigating Officer), deposed that on 14.01.2013, at 03:30 p.m., Smt. Nirmala Devi (PW-1) alongwith her husband, Devinder Singh (PW-11) and the prosecutrix (PW-2) came to police station for lodging FIR, Ex.

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PW-1/A. Thereafter, the police by moving application, Ex. PW-

9/A, got the prosecutrix medically examined and the medico legal certificate, Ex. PW-9/B, was obtained. As per this .

witness, on the same day, i.e., 14.01.2013, sets No. 15 and 16 of Housing Board Colony were inspected at the instance of complainant (PW-1) and spot map, Ex. PW-13/A, was prepared.

The accused was interrogated on the same day around 08:30 p.m. On 15.01.2013, through application, Ex. PW-6/A, the accused was medically r examined and his medico legal certificate, Ex. PW-6/B, was obtained. The accommodation of the accused was again inspected on 15.01.2013 at the instance of the prosecutrix and the prosecutrix identified the room and a bed sheet was taken into possession, which was sealed in a cloth parcel having seal impression 'I' at three places.

Facsimile seal, Ex. PW-13/B, was also taken on a separate piece of cloth and recovery memo, Ex. PW-2/A, was prepared, which was signed by Surender Singh, Amarjeet, as witnesses, and by the prosecutrix. Spot map, Ex. PW-13/C, was prepared.

On 16.01.2013 the accused gave demarcation at Set No. 15, Housing Board Colony, Nahan, and spot map, Ex. PW-13/D, was prepared at the instance of the accused. Memo of spot, Ex.

PW-5/A, was prepared and the accused got recovered a tube of ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 19 boroplus cream from second room and the same was enwrapped in a cloth parcel having seal impression 'I', which was taken into possession vide memo, Ex. PW-5/B. Ex. PW-5/B was .

signed by the accused and Constable Sanjeev Kumar. This witness, in his cross-examination, has deposed that when he reached the spot on 14.01.2013, the accommodation of the accused was found closed and on 15.01.2013 son of the accused (Surender) came to the police station with a key, thereafter, the accommodation of the accused was opened around 10:15 a.m. in his presence and the prosecutrix, her mother, father and uncle were called. He has further deposed that on 14.01.2013 he did not go inside the accommodation of the accused. As per this witness, on 15.01.2013 entire house of the accused was searched and on 16.01.2013 boroplus cream was found on the dressing table. He did not record any statement of the accused under Section 27 of the Indian Evidence Act qua recovery of boroplus cream.

20. The learned Trial Court vide its order dated 14.10.2015 summoned CW-1, Shri Devinder Kumar Rana, Clinical Psychologist Department of Psychiatry, PGI, Chandigarh, and his testimony was recorded on 17.12.2015.

As per this witness, on Gessel's Drawing Test, the mental age of ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 20 the prosecutrix was found seven years and performance quotient (PQ) was 50, on Seguin Form Board Test (SFBT) her mental age was found eight years and her PQ was 57 and on .

Vineland Social maturity Scale (VSMS) her social age was found 6.3 years and her social quotient (SQ) was 45. In ratiocination, this witness found the prosecutrix suffering from mild mental retardation. He has issued detailed examination report, which is Ex. CW-1/A. This witness was subjected to exhaustive cross-examination, but nothing substantial could be elicited from him.

21. The accused, in defence, has examined DW-1, Shri Nasir Ali Kadri, Superintendent, Grade-II, Government Girls Senior Secondary School, Nahan. He has only brought the question papers of 9th class examination conducted in the year 2013. This witness, in his cross-examination, deposed that as per the prevailing education policy, no student is declared failed up to 8th standard.

22. Keeping in view the facts of the present case, following judicial pronouncements become relevant for adjudication of this case:

1. State of Kerala vs. Anilachandran @ Madhu and others, 2009 (13) SCC 565;

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2. Rai Sandeep @ Deepu vs. State of NCT of Delhi, 2012 (8) SCC 21;

3. Narender Kumar vs. State (NCT of Delhi), 2012 (7) SCC 171;

.

4. Abbas Ahmad Choudhary vs. State of Assam, 2010 (12) SCC 115;

5. Radhu vs. State of Madhya Pradesh, 2007 (12) SCC 57;

6. Aman Kumar vs. State of Haryana, 2004 (4) SCC 379.

23. The Hon'ble Supreme Court in State of Kerala vs. Anilachandran alias Madhu and others, (2009) 13 Supreme Court Cases 565, it was held that onus to prove the plea of alibi lies on the shoulders of the person pleading it, but merely as the accused was not able to prove his defence, it cannot be presumed that the prosecution case is proved against him. Relevant paras of the judgment (supra) are extracted hereinbelow:

"14. In the instant case the High Court found that not only the document appeared, to be suspicious but in addition there was considerable delay in sending it to Ilaka Magistrate. Added to the aforesaid aspects, the noticeable variation in the evidence of PWs 1 and 3 has been highlighted by the High Court. The role played by PWs 1 and 3 while the deceased was being assaulted has been analysed in great detail. The High Court has noticed that even if the prosecution version about the role of A. 1 is accepted to be true, since the genesis of the incident has not been established, it will be unsafe to record his conviction.

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15. The High Court has noticed that crime was not committed in the manner as suggested by the prosecution and the genesis of the incident is not established. Even if a plea of alibi is set up by the accused and is discarded, that does not take .

away the duty of the prosecution to prove beyond reasonable doubt that the accused persons were guilty. It is certainly the duty of the persons who plead alibi to prove it beyond reasonable doubt. Merely because the accused was not able to prove his defence, it cannot be presumed that the prosecution case is proved against him."

24. The Hon'ble Supreme Court in Rai Sandeep alias Deepu vs. State (NCT of Delhi), (2012) 8 SCC 21, the conviction of the accused was reversed on the ground that there were material contradictions in the evidence and the prosecutrix portrayed conflicting versions from what was stated in the complaint and what she deposed before the Court.

Apposite paras of the judgment (supra) are extracted hereinbelow for ready reference:

"21. The other discrepancies which are to be mentioned are the categorical statement of the prosecutrix (PW-4) herself that after the alleged forcible sexual intercourse by both the accused, she wiped of her private parts with a red colour socks which was lying in the house, though at another place it was stated that both the accused used the red colour socks to wipe of their private parts after the commission of the offence. Assuming both the versions to be true, we find that the red colour socks sent for chemical examination revealed that it did not contain any semblance of semen in it as per the FSL report Exhibit PW- 14/N. It was also pointed out that while according to her the socks was handed over to the police in the hospital when the petticoat ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 23 and the socks were seized from her, according to the seizure memo the socks was recovered from the place of occurrence. She was a married woman and except the semen found in the petticoat, there is no other reliable evidence for implicating the accused-appellants to the crime .

alleged against them. In this background, when we refer to the oral version of the prosecutrix (PW-4), as pointed out by learned counsel for the appellant, very many facts which were not found in her original statement were revealed for the first time before the Court.

22. In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable.

The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 24 held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain .

intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

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

relate the version alleged and thus the prosecutrix failed to instill the required confidence of the Court in order to confirm the conviction imposed on the appellants.

24. With the above slippery evidence on record against the appellants when we apply the law on the subject, in the decision reported in State of Punjab v. Gurmit Singh & Ors., this Court was considering the case of sexual assault on an young girl below 16 years of age who hailed from a village and was a student of 10th standard in the Government High School and that when she was returning back to her house she was kidnapped by three persons. The victim was stated to have been taken to a tubewell shed of one of the accused where she was made to drink alcohol and thereafter gang raped under the threat of murder. The prosecutrix in that case maintained the allegation of kidnapping as well as gang rape. However, when she was not able to refer to the make of the car and its colour in which she was kidnapped and that she did not ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 25 raise any alarm, as well as, the delay in the lodging of the FIR, this Court held that those were all circumstances which could not be adversely attributed to a minor girl belonging to the poor section of the society and on that score, her version about the offence alleged against the .

accused could not be doubted so long as her version of the offence of alleged kidnapping and gang rape was consistent in her evidence. We, therefore, do not find any scope to apply whatever is stated in the said decision which was peculiar to the facts of that case, to be applied to the case on hand.

25. In the decision reported in Ashok Kumar v. State of Haryana, this court while dealing with the offence under Section 376 (2) (g) IPC read with explanation held as under in Para 8:

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

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26. Applying the above principle to the case on hand, we find that except the ipse-dixit of the prosecutrix that too in her chief examination, with various additions and total somersault in the cross examination with no support at all at .

the instance of her niece and nephew who according to her were present in the house at the time of occurrence, as well as, the FSL report which disclosed the absence of semen in the socks which was stated to have been used by the accused as well as the prosecutrix to wipe of semen, apart from various other discrepancies in the matter of recoveries, namely, that while according to the prosecutrix the watch snatched away by the accused was Titan while what was recovered was Omex watch, and the chain which was alleged to have been recovered at the instance of the accused admittedly was not the one stolen, all the above factors do not convincingly rope in the accused to the alleged offence of gang rape on the date and time alleged in the chargesheet.

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

"5. ..It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-

settled principle of law that corroboration as a condition for judicial reliance on the testimony of ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 27 the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant .

discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."

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

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

30. In the decision reported as Lalliram & Anr. v.

State of Madhya Pradesh in regard to an offence ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 28 of gang rape falling under Section 376 (2) (g) IPC this Court laid down the principles as under

in paras 11 and 12:

"11. It is true that injury is not a sine qua non for deciding whether rape has .

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

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

31. When we apply the above principles to the case on hand, we find the prevaricating statements of the prosecutrix herself in the implication of the accused to the alleged offence of gang rape. There is evidence on record that there was no ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 29 injury on the breast or the thighs of the prosecutrix and only a minor abrasion on the right side neck below jaw was noted while according to the prosecutrix s original version, the appellants had forcible sexual intercourse one after the other against her. If that was so, it .

is hard to believe that there was no other injury on the private parts of the prosecutrix as highlighted in the said decision. When on the face value the evidence is found to be defective, the attendant circumstances and other evidence have to be necessarily examined to see whether the allegation of gang rape was true.

Unfortunately, the version of the so called eye witnesses to at least the initial part of the crime has not supported the story of the prosecution.

The attendant circumstances also do not co-relate to the offence alleged against the appellants. Therefore, in the absence of proper corroboration of the prosecution version to the alleged offence, it will be unsafe to sustain the case of the prosecution.

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

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

32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 30 her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that .

Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant."

33. Applying the said principles to the facts of the case on hand, we find that the solitary version of the chief examination of PW-4, the prosecutrix cannot be taken as gospel truth for its face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellants."

25. The Hon'ble Supreme Court in Narender Kumar vs. State (NCT Delhi), 2012 (7) SCC 171, it was held that in case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected. Relevant paras of the judgment (supra) are reproduced hereinbelow:

"28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.

29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 31 witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless .

the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra, 1979 AIR(SC) 185; and Uday v. State of Karnataka, 2003 AIR(SC) 1639).

30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused.

Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.

31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.

32. The instant case is required to be decided in the light of the aforesaid settled legal propositions. We have appreciated the evidence on record and reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the appellant prior to the incident. The given facts and circumstances, make it crystal clear that if ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 32 the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The prosecution has not .

disclosed the true genesis of the crime. In such a fact-situation, the appellant becomes entitled to the benefit of doubt."

26. The Hon'ble Supreme Court in Abbas Ahmad Choudhary vs. State of Assam, 2010 (12) SCC 115, it was held that statement of the prosecutrix must be given primary consideration, but, at the same time, broad principle that prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully. Apt paras of the judgment (supra) are reproduced in extensor hereunder:

"9. We are however, of the opinion that the involvement of Abbas Ahmad Choudhary seems to be uncertain. It must first be borne in mind that in her statement recorded on 17th September, 1997, the prosecutrix had not attributed any rape to Abbas Ahmad Choudhary. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haq and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement.

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10. Some corroboration of rape could have been found if Abbas Ahmad Choudhary too had been apprehended and taken to the police station by P.W.5 -Ranjit Dutta the Constable. The Constable, however, made a statement which was .

corroborated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the prosecutrix had been brought to the police station as Abbas Ahmad Choudhary had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful.

11. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

27. The Hon'ble Supreme Court in Radhu vs. State of Madhya Pradesh, 2007 (12) SCC 57, found glaring discrepancies in the statements of the prosecutrix and her mother, which do not inspire confidence, thus the conviction of the accused was set aside. Apposite paras of the judgment (supra) are extracted hereunder for ready reference:

"12. Dr. Vandana (PW-8) stated that on examination of Sumanbai, she found that her menstrual cycle had not started and pubic hair had not developed, and that her hymen was ruptured but the rupture was old. She stated that there were no injuries on her private parts and she could not give any opinion as to whether any rape had ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 34 been committed. These were also recorded in the examination Report (Ex. P8). She, however, referred to an abrasion on the left elbow and a small abrasion on the arm and a contusion on the right leg, of Sumanbai. She further stated that she prepared two vaginal swabs for .

examination and handed it over along with the petticoat of Sumanbai to the police constable, for being sent for examination. But no evidence is placed about the results of the examination of the vaginal swabs and petticoat. Thus, the medical evidence does not corroborate the case of sexual intercourse or rape.

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

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

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

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16. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that .

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

28. The Hon'ble Supreme Court in Aman Kumar vs. State of Haryana, 2004(4) SCC 379, held that where there is no material to show that the accused was determined to have sexual intercourse, the offence cannot be said to be an attempt to commit rape to attract culpability under Sections 376/511 IPC and the case can be one of indecent assault upon a woman.

Apposite paras of the judgment (supra) are extracted hereinbelow:

13. There is no material to show that the accused were determined to have sexual intercourse in ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 36 all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511, I. P. C. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under .

Section 354, I. P. C. are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined.

The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows :

"Decorous in manner and conduct; not forward or lowe; Shame-fast;

Scrupulously chast."

14. Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Lloyd (1876) 7 C and P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 37 assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

15. In that view of the matter, it would be .

appropriate to set aside the conviction of the appellants under Section 376(2)(g) and convict them under Section 354 read with Section 34, I. P. C. Custodial sentence of two years each, with a fine of Rs. 500/- each and a default stipulation of three months rigorous imprisonment in case of failure to pay the fine would meet the ends of justice. The appeal is allowed to the extent indicated above."

29. After exhaustive discussion of the evidence and the law, as cited above, following points emerge, which are material for determination of guilt or innocence of the accused:

1. PW-1, Smt. Nirmala Devi (mother of the prosecutrix) deposed that she remained in the house of PW-4, Smt. Anju Sharma (her neighbour), for approximately 10-12 minutes, where she had gone to give vegetables. When she returned, she did not find the prosecutrix in the accommodation, so she called her and the prosecutrix was seen by her coming out from the accommodation of the accused with her shirt upwards and she was shivering and weeping. If this statement of PW-1 is seen in conjunction with statement of PW-4, Smt. Anju Sharma, in whose ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 38 house the PW-1 had gone to give vegetables, there appears to be major contradiction. PW-4 has categorically deposed that PW-1, Smt. Nirmala Devi, .

stayed in her house for about a minute.

This is a material contradiction and the same cannot be ignored, as the alleged occurrence, by no stretch of imagination, could have happened within a time span of a minute or so.

2. PW-1, Smt. Nirmala Devi, has also deposed that when the prosecutrix came out of the accommodation of the accused, she was weeping and thereafter she divulged the incidence to her, but the prosecutrix while appearing in the witness-box, as PW-2, did not say anything with regard to the fact that she was weeping when her mother (PW-1) called her. Therefore, there is variance in the statements of PW-1, who subsequently reported the matter to the police qua the occurrence, and the prosecutrix, who is the sole eye witness of the occurrence. This variance encapsulates the versions of these witnesses with doubt.

3. Another point, which emerges, is that initially the story portrayed was with regard to sexual assault, but it was ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 39 unearthed only after the medical evidence that there was no biological penetration, therefore, the initial story, as divulged by the prosecutrix and her mother, is again .

engulfed in suspicion and subsequently offence under Section 376 read with Section 511 IPC was registered.

4. The prosecutrix categorically deposed in her statement that earlier to the alleged occurrence the accused 2-3 times had committed bad act with her and on the day of alleged occurrence he had committed bad act with her, however, the medical evidence qua the prosecutrix unequivocally and unambiguously establish that there was nothing suggestive of sexual intercourse. Thus, the medical evidence nowhere suggests that the prosecutrix had been sexually assaulted.

5. The material collected by the prosecution has failed to establish that the accused was present in his accommodation at the time of occurrence and was not in his offence during the relevant time. It is correct that the plea of alibi, if taken, is to be proved by the accused and the onus of proving the plea is always on the accused, but the initial burden to establish that the accused was present on the spot of ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 40 occurrence is always on the prosecution. The presence of the accused on the spot at the relevant time could have been proved by PW-4, Smt. Anju Sharma, who was .

living nearby and from whose accommodation PW-1, Smt. Nirmala Devi (complainant) had returned to her house. PW-4, Smt. Anju Sharma, in her statement did not say anything qua the presence of the accused at the relevant time and she categorically deposed that she came to know about the occurrence afterwards, thus the prosecution could not clearly establish the presence of the accused on the spot at the relevant time. Manifestly, the primary burden of proving the presence of the accused on the spot at the relevant time is on the prosecution, but the prosecution has failed to discharge this burden, which also shakes the semblance of the prosecution story. PW-4, Smt. Anju Sharma, in fact, did not support the prosecution story, which creates a dent in the the veracity of the prosecution story.

6. The medico legal certificate of the prosecutrix, Ex.PW-9/B, shows that there was no biological penetration or any signs suggesting attempt of sexual assault. The scrutiny of the statement of PW-9, Dr. ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 41 Shahida Ali, reveals that she nowhere deposed that she observed any cream like substance on the private parts of the prosecutrix, which, as per the prosecution .

story, was boro plus cream. Thus, the prosecution story with respect to the fact that the accused applied boro plus cream on the private parts of the prosecutrix seems imaginative and highly improbable, especially in the absence of any cogent and convincing material providing lateral support to it. This facet of the prosecution story is also marred by Forensic Report, Ex. PX, which clearly portray that the boro plus cream sent for forensic analysis was found to be boro plus cream and there was no matching etc. with any cream like substance found on the samples sent by PW-9, Dr. Shahida Ali, viz., pubic hair.

PW-9, Dr. Shahida Ali, did not find pubic hairs, which were 3 cm long, matted, it also creates a doubt qua the authenticity of the prosecution story. Thus, it is crystal clear that boro plus cream was not found on the pubic hairs of the prosecutrix and there were no injury marks on her lips, cheeks, neck, breasts, chest, back and abdomen. The hymen of the prosecutrix was found intact and her vagina admits ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 42 one finger with difficulty. The statement of the prosecutrix did not match with the medical evidence and the statements of the prosecutrix and PW-1, Smt. Nirmala Devi .

(mother of the prosecutrix) did not get any support from independent witness, PW-4, Smt. Anju Sharma. In these circumstances, the conclusion that there was no assault and it was a concocted or imaginary story cannot be ruled out. The accused cannot be allowed to suffer conviction on the anvil of such a story which is not supported by the evidence, medical evidence and the statement of the independent witnesses and otherwise also the prosecution has failed to prove the presence of the accused on the spot at the relevant time.

7. Nothing is emanating from the record which conclusively establishes the presence of the accused on the spot. It has come on record that the accused came on the spot when he was called from his office by the police. It is also apposite to note here that the accused was residing in the said accommodation with his children and wife.

8. The available evidence also provides a clue that there had been animosity inter se the ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 43 family of the prosecutrix and the family of the accused. Although, fact qua animosity is not that much important for adjudication of guilt or innocence of the .

accused, but in any case it provides a ground that the complainant party may have falsely implicated the accused due to such animosity. This fact also vitiates the prosecution story and renders it doubtful and full of suspicions.

30. This Court thus comes to the conclusion that prosecution case is full of doubts and suspicions and these go to the very root of the prosecution case and renders the prosecution story doubtful. It is settled law that benefit of doubt goes to the accused and the most probable conclusion in the present set of circumstances is that the lacunae which have occurred in the present case are fatal to the prosecution case.

Thus, keeping in view the overall conspectus of the case, the inescapable conclusion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and the benefit of the same goes to the accused.

31. Looking at from any angle, the conclusion of convicting the accused, as drawn by the learned Trial Court, ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP 44 warrants interference by this Court, especially keeping in view the slippery evidence and flaws in the prosecution case. Thus, the appeal is allowed and the judgment of the learned Trial .

Court, whereby the accused (appellant) was convicted, is set aside, as the same is not sustainable in the eyes of law.

Accordingly, the accused is acquitted and ordered to be released forthwith, if not required in any other process of law.

The Registry is directed to prepare the release warrants.

32. Accordingly, r the appeal, so also pending application(s), if any, stand(s) disposed of.

(Chander Bhusan Barowalia) Judge 16th August, 2017 (virender) ::: Downloaded on - 18/08/2017 21:51:40 :::HCHP