Delhi High Court
Bimla vs State Of Nct Of Delhi & Ors. on 29 May, 2015
Author: G. S. Sistani
Bench: G.S.Sistani, Sangita Dhingra Sehgal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.937/2013
% Judgment pronounced on May 29, 2015
BIMLA ..... APPELLANT
Through: Mr.I.D.Gill, Mr.Kamlesh Kumar Mishra
and Ms.Kezhososano Kikhi, Advs.
versus
STATE OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr.Sunil Sharma, APP for the State\
Mr.Deepak Mehar Singh, Advocate for
respondent no.2.
Mr.Ajai Verma, Mr.Gaurav Bhattacharya,
Mr.S.K.Dwivedi and Ms.Neha Singh,
Advocates for respondents 3 to 5.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J
1. Present appeal has been filed under section 372 read with section 482
Cr.P.C against the judgment dated 16th July, 2012 passed by the
ld.Additional Sessions Judge in FIR registered under section
365/376(2)(g)/120B IPC on a complaint filed by the victim who was
kidnapped and gang raped. The ld.Additional Sessions Judge acquitted all
the five accused persons. The present appeal has been filed by the victim.
2. The case of the prosecution as noticed by the ld.trial court is as under:-
"On 10.3.2010, on receipt of DD No.20A, SI Sudesh Pal along with
Const.Sunil reached the spot of incident i.e. Goyala Mor, near
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Liquor Vend where they met the complainant Kumari Sonia. She
made a statement that she along with her sister Monika are
studying in XII Class and had come to Sarvodya Co-Ed School,
Paprawat Village for appearing in an examination. At about 1.30
p.m. when they came out of the school after finishing the paper,
their mother Bimla Kumari was waiting for them in vehicle towards
home. Bimla was at the wheel, Monika sat on the front passenger
seat, whereas Sonia sat on the rear seat. At about 1.45 p.m. when
they reached the main road near Radha Swami Satsang Bhawan, a
white colour Maruti car overtook their vehicle and stopped in front
of their vehicle. Two/three persons came down from the Maruti
car, one of them opened the driver's side window of their vehicle
and pushed their mother towards left side, another pulled out
Monika from the front passenger seat and the third one opened rear
door of their vehicle and pushed Sonia out of the car from the left
side. The person, who had pushed their mother towards her left
side and had put a revolver on her temple. They kidnapped the
mother of the two girls in her own car. The Maruti car, in which
the assailants had come, was being driven in front of their car.
The car of the assailants had dark tinted glassed but some persons
were present in the car. Sonia had made call at telephone no.100
from mobile phone no.9278284822 of her mother. She further
stated that she can identify the assailants, if shown to her."
3. On the basis of the aforesaid statement of Sonia, SI Sudesh Pal prepared
rukka and got the FIR registered u/s 365 IPC. Further investigation of the
case was handed over to SI Sudesh Pal. She prepared the site plan of the
spot from where Bimla was kidnapped. On receipt of an information that
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vehicle no.DL-6C-6137 in which Bimla had been kidnapped is lying
parked at Jharoda Bus Stand, he proceeded to that spot and on search of
the vehicle, he found a countrymade revolver near the rear seat. He
prepared the sketch of the revolver. He called the Crime Team and got
the vehicle inspected by the Crime Team. No chance fingerprints could
be found on the car. SI Sudesh Kumar seized the car as well as the
revolver. He also recorded the statement of other witnesses. The husband
of Bimla, namely Karambir, in his statement stated that his wife may have
been kidnapped by accused Narender @ Balle of Village Gorar, P.S.
Kharkhoda, District Sonipat, as there was enmity between the two on
account of some transactions. A raid was conducted by SI Sudesh Pal
along with SHO and other staff in the village of Narender @ Balle but
they could not find or trace the accused Narender or the prosecutrix
Bimla.
4. It is further the case of the prosecution that on 11.3.2010, prosecutrix
Bimla reached police station alongwith her husband Karambir and her
statement u/s 161 Cr.P.C was recorded by SI Sudesh. Her statement was
also recorded u/s 164 Cr.P.C by the concerned Magistrate, wherein
besides confirming what was stated to the police by her daughter Sonia, as
noted hereinabove, she further stated as under:-
"After kidnapping me, the assailants proceeded towards Najafgarh.
The vehicle of the assailants was following her vehicle. After
traversing some distance, her vehicle broke down. At that time, her
face had been covered by a cloth. She was transferred to the vehicle
of the assailants, which was coming from behind. At that time, she
shouted and some people gathered at the spot but the assailants told
them that she is their mother and being ill, she is being taken for
treatment. Thereafter, the assailants proceeded in their own car. After
traversing some distance, when they reached near a drain, their vehicle
also broke down. Two of the assailants took me to the wheat field
near the road, look off my trouser and took turn in raping me. After a
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long time, another vehicle was brought, I was put in that vehicle and
they took me to village Gour where Narender @ Balle resides.
Narender @ Balle took me to a room upstairs in his house and raped
me there. After sometime, Narender put me in a vehicle and took me
to the house of his sister Billo in Rohtak. There Narender beat me and
obtained my signature by force on a blank paper. He also took my
thumb impression by force on a paper, on which something was
written and also had a revenue stamp affixed on it. In the morning on
11.3.2010 at about 5.30 am, Billo and her sister-in-law (Jethani) and a
boy took me to bus stand Rohtak, bought me a ticket for Nangloi and
made me to sit in a bus. I got down from the bus at Bahadurgarh and
boarded another bus for Gurgaon from which I got down at Deenpur.
After getting down from the bus at Deenpur, I made a call to my
husband from an STD Booth and thereafter I along with my husband
came to the police station."
5. The victim Bimla was also medically examined in RTRM Hospital,
Jaffarpur. Thereafter, section 376(2)(g) IPC was added in the FIR and
search for the accused was started. At this stage, the investigation of the
case was entrusted to WASI Saroj Bala.
6. It is further the case of the prosecution, the real brother of accused
Narender @ Balle brought him to the police station on 17.4.2010 to
surrender. In the meanwhile, victim Bimla also came to the police station
for enquiry about the progress of her complaint and she immediately
identified Narender @ Balle to be the person who had got her kidnapped
and who had raped her in his house. Accused Narender @ Balle was
accordingly arrested in this case. He was produced before the concerned
Magistrate and taken on four days police remand. During the course of
investigation of the case, another accused Satish @ Jassa was brought to
the police station by his sister and brother-in-law (Jija) for surrender. At
the same time, one Rajender, brother-in-law (Jija) of BIMLA came to the
police station alongwith BIMLA for making enquiries about the progress
of her complaint and she identified accused Satish @ Jassa to be the same
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person who alongwith his two associates had kidnapped him on
05.3.2010. Accused Satish @ Jassa was arrested in this case and his
disclosure statement was recorded. On the basis of his disclosure
statement, section 120B IPC was added in the FIR. Accused Satish @
Jassa was produced before the concerned Magistrate and he was taken to
two days police remand to facilitate the arrest of the other co-accused
persons but they could not be traced.
7. Prosecution further alleges that during the course of further investigation,
accused Kapil was arrested on 04.6.2010 pursuant to a secret information.
He also made a disclosure statement admitting his involvement in the
kidnapping and rape of Bimla. He was taken on two days police remand.
At his instance, another accused Niranjan @ Engine @ Amit was arrested
in this case. Accused Niranjan also made a disclosure statement and he
was remanded to one day's police custody. Accused Kapil is stated to
have refused to participate in the TIP proceeding. On the basis of his
disclosure statement, section 25 of Arms Act was added to the FIR.
Accused Rajesh, Anil @ Chaman, Jaidev @ Jaideep could not be arrested
despite efforts and NBWs were obtained against him.
8. On the basis of statement made by the victim, FIR was registered. The
statement of victim and her husband was recorded. Her husband has
stated that his wife had been kidnapped by Narender @ Balle of Village
Gorar, P.S. Kharkhoda, District Sonipat, as there was enmity between the
two on account of some transactions. Statement of the victim under
section 161 and 164 Cr.P.C was also recorded.
9. Counsel for the appellant submits that the trial court has failed to consider
that statement of the appellant recorded under section 164 Cr.P.C in
English before the ld. Magistrate. The appellant being illiterate, was
unable to get her statement recorded properly and her version of the case
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was not recorded completely by the ld. Magistrate. It is also submitted
that the questions asked by the Medical Officer during the appellant's
medical examination were found to be confusing by the appellant. Thus,
she could not answer properly before the Medical Officer. It is also
submitted that proper investigation was not carried out by the police. It is
also submitted that the trial court has incorrectly held that there are
material contradictions in the testimonies of the daughters of the appellant
who were eye witnesses to the kidnapping of the appellant. It is
contended that contradictions in the testimonies of both the minor
daughters do not go to the root of the matter and their testimonies are
reliable and trustworthy. Counsel further submits that the trial court has
erred in relying on the medical evidence as per which no injury marks,
external or internal were found on the body of the appellant.
10. Counsel for the appellant also submits that the Session court has ignored
material and vital evidences and the statement of complainant under
Sections 161/164 of the Cr.P.C.. The investigation and prosecution of the
present case was poor and weak at all time as it was filled with loop-holes
and gaps, benefit of which resulted in total acquittal of the case. The
relatives of the respondent no.2 (Narender @ Balle) i.e. the mother, sister
and wife were never arrested and interrogated which if done could have
guided the investigation as against the accused. The trial court has failed
to consider that the statement of the prosecutrix is sufficient to convict the
respondents and the appellant should not be made to suffer on account of
poor investigation.
11. Counsel for the respondents state that the trial court has carefully analysed
the testimonies of the material witnesses including the prosecutrix and has
rightly reached the conclusion that the testimonies of two eye witnesses
are contradictory. There are contradictions in the statements made by the
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prosecutrix under section 161 and section 164 Cr.P.C. and her statement
before Court. There are material contradictions in the statements of PW-
8, daughter of the prosecutrix and PW-5, second daughter of the
prosecutrix. Counsel also contends that none of the accused persons
were arrested from the spot of the incident nor they were put to any test
identification parade. Counsel also submits that the trial court has rightly
observed that neither respondent Narender @ Balle nor Satish @ Jassa
who surrendered had made any disclosure statement regarding address
and description of any of the accused persons, but were later on arrested.
Hence, there is doubt as to on what basis, police arrested the remaining
accused persons. Counsel also submits that there are material
improvements in the statements made by the prosecutrix and
contradictions between her statements made under sections 161, 164
Cr.P.C and before the court. It is also contended that the prosecutrix
testified that she was hit on the head by Kapil with a revolver and
received injury, but no such injury was found during MLC. Counsel also
submits that statement of the prosecutrix is unbelievable that the mother
and wife of Narender @ Balle were present in the house when she was
raped, and further medical evidence also does not support the theory of
rape. Counsel also contends that as per prosecutrix, when she was being
raped, she had bitten the fingers of the assailants which in fact was not
stated in either of the two statements nor supported by medical evidence.
It is also contended that the conduct of her husband also shows that on
hearing the kidnapping of his wife, he did not go to the spot of the
incident, but stayed at his home, which is highly unusual.
12. Counsel for the respondents state that the respondents have been falsely
implicated in the case. It is also contended that prosecutrix had taken
money from respondents (Kapil and Narender @ Balle) on the pretext of
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providing employment to them and their relatives in Delhi Metro, and to
avoid repayment of that money, prosecutrix implicated them in a false
case.
13. Counsel for Narender @ Balle has further stated that a FIR stands
registered against the prosecutrix and her husband at Police Station City
Rohtak, Urban Estate, bearing FIR no.89/10, under section 409/420 /465/
467/468/506/120B and 34 IPC, on a complaint filed by one Rakesh
Kumar also from whom the prosecutrix had received money for providing
employment. Counsel further stated that another FIR no.123/09 had been
registered against the prosecutrix at Police Station Aman Vihar under
section 420/468/471/34 IPC on a complaint filed by Mr. Bhupinder. He
also stated that prosecutrix had issued threats to him asking him to
withdraw the complaint or else face dire consequences.
14. We have heard learned counsel for the appellant/victim as also counsel for
respondent/State and counsel for the respondents 2 to 6 in detail, who
have taken us through the trial court record including the testimonies of
the material witnesses. The prosecution has examined 25 witnesses to
prove the charges against the accused persons. The accused persons i.e.,
respondents 2 to 6 herein were examined under section 313 Cr.P.C.,
wherein they denied all the incriminating circumstances and claimed that
they had been falsely implicated in this case. Respondents Kapil and
Narender @ Balle had further stated that prosecutrix had taken money
from them on the pretext of providing employment to them and their
relatives in Delhi Metro, and to avoid repayment of that money,
prosecutrix implicated them in a false case.
15. We deem it appropriate to examine testimonies of some of the material
witnesses in this case.
16. PW-1, Dr.Neelu Mishra, has testified that on 11th March, 2010, when she
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was posted as a Senior Resident Obst.Gynae, RTRM Hospital, Jaffarpur,
New Delhi, one Bimla was referred to her for gynae examination. As per
her observation:-
"There were two minor scratch marks on the right shoulder of the
patient. No injury marks on the external or internal genitalia were
present. Report about Hymen was not relevant as the patient was a
married lady having six children. I had sealed the nail clippings,
pubic hair, vulval and vaginal swabs of the patient with the seal of
the hospital and handed over the same to the police official who
was accompanying the patient.
During cross-examination, she has stated:-
It is correct that as per first and second column appearing on
page 3 of ExPW 1/A, the patient had stated that it was a case of
attempted penetration and not completed penetration. The two
scratch marks observed on the shoulder of the patient can be caused
by rubbing of the shoulder with any object. On 11.3.2010, I had
prepared only one MLC i.e., Ex.PW 1/A. I have conducted gynae
examination of many patients like this. I cannot give a definite
opinion in this case on the basis of clinical examination whether
rape was committed or not. I did not see any signs of forced rape in
the present case."
17. The star witness in this case is PW-2, prosecutrix. She testified that on
10th March, 2010, her daughters Monika and Sonia were appearing in the
examination of 12th class in Village Paprawat. She had gone to the school
in her Maruti car. At about 1.45 pm after the examination was over,
children boarded her car and they proceeded towards their house. Her
elder daughter Monika was sitting on the front seat and Sonia was sitting
on the rear seat. After five minutes, they reached near Swami Satsang
Bhawan, Deenpur. When she crossed the lane of Satsang Bhawan, one
small car came from behind and five persons were sitting in that car and
they parked their car in front of her car. Three boys got down from the
car and two boys had revolvers in their hands. One boy pushed her
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towards left and two boys pulled her daughters out. One boy by the name
Kapil, whose name she came to know afterwards sat on the driving seat of
the car and another sat besides her on the front seat on her left. The other
two boys also sat in her car and she can identify them by face but did not
know their names. She then testified that accused persons proceeded
towards Najafgarh in her car. Accused Anil @ Chaman pushed her
towards back side while accused Niranjan covered her face with a towel.
Accused Kapil hit her with the revolver on her head. After travelling
some distance, her car broke down. The car of the accused persons was
coming behind her car. One of the boys got down and covered her face
with a blanket and made her sit in their car. The accused persons were
shouting that she was their mother and they were taking her to the
hospital. Thereafter accused persons took her to a village. The car of the
accused persons also broke down. Accused Kapil, Niranjan and one other
boy took her in a wheat field and other two accused persons remained
present near the car to keep a watch. Thereafter Kapil, Niranjan and the
third boy committed rape. Thereafter, they telephoned Balle and said that
they had brought her and that their car had broken down. Balle was
asked to bring a car. After 1 ½-2 hours, accused Balle came in a big car
alongwith two persons. They made her sit in that big car and kept
roaming in the car on the roads, and in the evening, they took her to the
house of accused Balle in Village Guard. In the house of accused Balle,
his mother, his wife Poonam, his sister Billo, her sister-in-law Neelam and
two other boys were present. Accused Balle took her in his room on the
first floor and the wife and sister of Balle helped him in taking her in the
room. When his mother asked him not to take her upstairs, he kicked her.
Thereafter accused Balle committed rape upon her. Thereafter at about 8-
8.30 pm, accused persons took her to Rohtak. The accused persons had
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gone in a separate vehicle while she was taken in another car in which the
wife and sister of accused Balle, two other boys and Neelam, sister-in-law
of Billo were also present. Accused Balle, his wife and sister had beaten
her. In the said house, accused Balle forced her to sign some papers. As
she is illiterate and did not know how to write her name, Balle asked her
to see her name written on her forearm and to write it in the same manner.
He had also put one red colour ticket on the said paper. On receiving a
call, accused Balle ran away from there. Only ladies remained in the
house with her. In the morning while they slept, she came out of the
house and went to a tea stall near the bus stand. She borrowed Rs.50/-
from an old man and boarded a bus from Delhi for Rohtak. She got down
at Bahadurgarh and took another bus for Gurgaon. About 7.30 am, she
reached Deenpur Village bus stand and telephoned her husband from
there. Her nephew came and picked her. Four police officers were
present at his home at that time. She showed them the wound inflicted by
accused Kapil on her temple with his revolver. On the next day, she was
taken to the hospital for medical examination. Thereafter, her statement
was recorded in the court. She identified her signature on the statement
made under section 164 Cr.P.C.
18. She was cross-examined by the Public Prosecutor. During cross-
examination by the Public Prosecutor she deposed that it was correct that
accused Balle had put a revenue stamp on the documents before taking
her signatures. She also stated that it was correct that she did not tell the
police that at about 5.30 am, Billo, sister of accused Balle, Neelam, sister-
in-law of Billo and one boy brought her to the Rohtak bus stand and
purchased a ticket and made her sit in the bus. She was confronted with
portion A to A of her statement Ex.PW 2/B under section 161 Cr.P.C
where it was so recorded. She then testified that it was correct that on
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17th April, 2010, she went to the police station Najafgarh to know about
the progress of her case and she saw accused Narender @ Balle sitting in
the police station along with his brother, when she identified Narender @
Balle who had kidnapped and raped her. She had signed the arrest memo
and search memo of accused Narender @ Balle. She also deposed that it
was correct that on 11th June, 2010 she had again gone to the police
station Najafgarh to know about the progress of her case and saw accused
Kapil sitting in the police station and identified him as the person who
had kidnapped and raped her. She also deposed that it was correct that on
17th June, 2010, she again went to the police station to know about the
progress of the case when she identified accused Niranjan as the person
who had kidnapped her on 10th March, 2010 along with his associates.
On 31st July, 2010, she again went to Police Station Najafgarh where she
had identified accused Anil @ Chaman as the person who had kidnapped
her and hit her on the temple with a revolver during kidnapping. She
admitted as correct that she knew Narender @ Balle prior to the incident
and that accused Narender @ Balle had got her kidnapped. She did not
tell the police that she had some money transaction with accused
Narender @ Balle. She was confronted with portion A to A of her
statement Ex.PW 2/E u/s 161 Cr.P.C where it is so recorded. During
cross-examination by the counsel for the accused Narender @ Balle, she
deposed that accused Kapil had hit her with a revolver on her right temple
due to which she had sustained an internal injury, only and she told the
doctor about the said injury during her medical examination. She
admitted that two criminal cases have been registered against her but they
had been falsely registered by accused Narender @ Balle. Rakesh Kumar
is the brother-in-law of Balle and Upender Kumar is also a relative of
Balle. She further deposed that her husband was not an income tax payee.
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Her husband earns Rs.60000/-70000/- per year. They have five children
who study in a Government school. They live in a rented
accommodation. She admitted that they were maintaining a car. She
also stated that when accused Balle had thrown her on the bed, she had
sustained a scratch on her back. She also stated that it was correct that her
husband did not come to take her from Deenpur Bus Stand. During cross-
examination, she has also stated that she did not cause any injury to the
accused persons, rather they had caused injury to her. She further
deposed that she tried to oppose the accused persons by hitting with her
limb but they did not sustain any injury. She also identified two persons
in court who raped her. The other accused persons were standing near
the vehicle when the rape was committed. She had sustained injury on
her foot during rape. Her foot was bleeding slightly.
19. During her cross-examination on behalf of accused Narender, she was
confronted on the following issues:-
"I had stated to the police that accused Niranjan covered my face
with towel and accused Kapil hit me with a revolver on my head.
(Confronted with the statement u/s. 161 Cr.PC where it is not so
mentioned).
I had mentioned in my statement u/s 164 Cr. PC that my face
was covered and my mouth clamped by the accused with a black
colour blanket. (Confronted with the statement u/s. 164 Cr. PC
where it is not so mentioned).
I had stated to the police that the accused persons took me
alongside a drain. (Confronted with the statement u/s 161 Cr.PC
where it is not so mentioned).
I had stated to the Ld. Magistrate in my statement u/s 164 Cr.
PC and to the police also that two accused remained near the car to
keep watch. (Confronted with the statement u/s. 164 Cr. PC and
statement u/s. 161 Cr. PC where it is not so mentioned).
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I had stated to the police as well as to the Magistrate that
accused Kapil and one more person (the witness points towards
accused Anil in this regard present in court today) had committed
rape with me. (Confronted with the statement u/s. 164 Cr. PC and
statement u/s. 161 Cr. PC where it is not so mentioned).
I had stated to the police as well as to the Magistrate that
thereafter, accused telephoned accused Balle saying him that they
have brought me. (Confronted with the statement u/s. 164 Cr. PC
where it is not so mentioned).
I had stated to the police as well as the Ld. Magistrate that
the accused made me to sit in a big car and kept roaming in the car
on the roads till the evening. (Confronted with the statement u/s.
164 Cr. PC and statement u/s 161 Cr. PC where it is not so
mentioned).
I had stated to the police as well as the Ld. Magistrate that in
the house of accused Balle, his mother, his wife Poonam, his sister
Billo, her Devrani (sister-in-law) Neelam and two other boys,
whom I did not know, were present. (Confronted with the statement
u/s 164 Cr. PC and statement u/s. 161 Cr. PC where it is not so
mentioned).
I stated to the police as well as to the Ld. Magistrate that the
wife and sister of Balle helped him in taking me to the room on the
first floor of the house. (Confronted with the statement u/s. 164 Cr.
PC and statement u/s. 161 Cr.PC where it is not so mentioned).
I had stated to the police as well as to the Ld. Magistrate that
the accused travelled to Rohtak in a separate vehicle whereas I was
taken to another car in which wife and sister of accused Balle, two
other boys and Neelam were also present and that the accused took
me there to a big house from where I was shifted to another
house, they were planning to kill me and that accused Balle, his
wife and sister beat me there. (Confronted with the statement u/s
164 Cr.P.C and statement u/s 161 Cr.P.C where it is not so
mentioned).
I had stated to the police as well as to the Ld. Magistrate that
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in the morning when the accused and other persons were sleeping, I
came out of the house, went to a tea stall near Bus Stand, borrowed
Rs.50/- from an old man and boarded a bus for Delhi. (Confronted
with the statement u/s 164 Cr.P.C and statement u/s 161 Cr.P.C
where it is not so mentioned).
I had also stated to the police as well as the Ld.Magistrate
that my nephew came to the bus stand Deenpur to pick me up, took
me home where four police officers were already present and I
narrated all the facts to them and also showed them the wound
inflicted by accused Kapil on my temple with his revolver.
(Confronted with the statement u/s 164 Cr.P.C and statement u/s
161 Cr.P.C where is not so mentioned).
I knew accused Narender @ Balle even before the incident. I
did not know his family members before the incident. I came to
know about the names of the family members as the accused kept
on calling each other by names during the night when I was with
them. I did not receive any injury on any part of my body when
accused Narender @ Balle committed rape upon me on iron cot. It
was dry land at the place where I was raped by other accused in
field and therefore, my clothes did not get dirty. I did not get any
clay etc. on my hairs also. I did not suffer any injury during that
incident also.
I had narrated the incident to the doctor who had medically
examined me but I did not tell her the names of the assailants as I
did not know the names by that time. I had given the name of
accused Balle to the Doctor. I had stated the place of incident to the
doctor."
20. PW-3, Constable Nagender, has testified that on 17.4.2010, at about 7.00
a.m., the brother of the accused Narender @ Balle, had brought him to the
Police Station. In the meanwhile, the prosecutrix also came to the Police
Station and identified him as the person, who had raped her in her village.
21. PW-5, Ms.Sonia, is the daughter of the prosecutrix, who was 15 years of
age at the time of her making the testimony. PW-5 has testified that on
10.3.2010, she along with her elder sister, Monika, had gone to the school
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where she and her sister had appeared for the Class XII examination.
After both the sisters came out from the school, their mother was waiting
in her car. PW-5 sat on the rear seat of the car while her sister sat on the
front seat of the car. On the way, near Radha Swami Satsang Bhawan, a
white coloured Maruti car overtook their car and blocked their way. Three
persons, whom she identified in the Court as Kapil, Anil @ Chaman and
Niranjan, got down from the car. Kapil pushed her mother inside the car
from the driving seat and sat on the driving seat of their car. Anil @
Chaman pulled out her sister, Monika, from the car and Niranjan threw
her out of the car after opening the door. Anil @ Chaman and Kapil had
pistols in their hands. Her mother had two mobile phones made of Nokia
and Virgin. Her mother threw the Virgin mobile phone from the car. The
accused persons took away her mother in the car of the mother. She and
her sister got up and informed Police on No.100 from the mobile. She also
telephoned her father. After 10-15 minutes, 3-4 PCR vans came there.
Police enquired from PW-5 and she told the Police about the incident.
PW-5 was taken to the Police Station. She had met her father on the way
to the Police Station.
22. During cross-examination, PW-5 has testified that she was pulled out
from the Maruti car. It was a kahcha road where she was thrown on the
road but she did not sustain any injury. She fell with her face towards the
road on the left side of the car. Dust accumulated on her face and entered
her eyes, nostrils and mouth. First, her sister was thrown out of the car
and thereafter she herself was thrown out of the car. Her sister did not
sustain any injury but her face was full of dust.
23. PW-8, Ms.Monika, is another material witness, being the second daughter
of the victim. PW-8 has testified that on 10.3.2010, she along with her
sister had gone to the examination centre. Their exam was over by 1.30
Crl.A.937/2013 Page 16 of 30
p.m. Her mother had come in her Maruti car to pick her and her sister. She
was sitting on the front seat while her younger sister was sitting on the
rear seat. When they reached Radha Swami Satsang Street at about 1.45
p.m. one White coloured maruti car overtook their car and blocked their
way. Three boys, Niranjan, Kapil and Anil @ Chaman (who were pointed
out by this witness) had got down from the car. Two boys had pistols in
their hands. Thereafter PW-8 became unconscious and she did not know
what had happened henceforth.
24. At the request of the Additional Public Prosecutor, this witness was
examined. In her cross-examination, PW-8 has deposed as under:
"It is wrong to suggest that police had recorded my statement on
10/03/2010. I did not tell the police that one accused pushed my
mother from the driver seat inside the car and other accused pulled
me out from the car and third accused after opening the rear door of
the car, pushed my sister Sonia, out of the car and one of them put
the revolver on the head of my mother. (Confronted with portion A
to A of her statement Mark PW-8/1 where it is so recorded). I did
not tell the police that thereafter, those persons abducted my mother
and some other persons were also sitting in the car in which
accused persons had come and the glasses of the car were tinted
and my sister Sonia had called at 100 No. from mobile
No.9278284822. (Confronted with portion B to B of her statement
Mark PW-8/1 where it is so recorded). It is wrong to suggest that
one accused had pushed my mother inside the car or that one
accused pulled me out of the car or that third accused pushed my
sister Sonia out of the car. It is further wrong to suggest that
accused persons had abducted my mother in our car. It is wrong to
suggest that I have deposed falsely in respect of the confronted
portion for the reasons best known to me."
25. During cross-examination carried out by learned counsel for the Anil @
Chaman, PW-8, inter alia, has stated that she became unconscious after
the accused persons came to their car with pistols, threw her on the
ground and out of the car.
Crl.A.937/2013 Page 17 of 30
26. During cross-examination carried out on behalf of the accused, Kapil,
Niranjan, Satish @ Jassa and Narender @ Balle, PW-8 has testified that
she did not know what happened while she was unconscious. She has also
testified that it takes 10 minutes by car to reach her house from the spot of
the incident. This witness has also testified during cross-examination that
her father took her to the hospital when she reached home as her father
was present at home at that time.
27. A careful examination of the testimonies of these three most material
witnesses, being victim/prosecutrix PW-2; and her two daughters, PW-5,
Sonia, and PW-8, Monika, we are of the view that the trial court has
rightly reached the conclusion of acquittal. The statements of the two
daughters of the prosecutrix, PW-5 and PW-8, who are the eye-witnesses,
are contradictory and are unreliable.
28. While PW-8, Monika, has testified that she became unconscious after the
accused persons came to her mother's car and threw her on the ground
and out of the car. This material fact has not been stated by PW-5, Sonia,
in her testimony that her sister, PW-8, had became unconscious when she
was thrown on the ground. In fact PW-5 has testified that both of them
took 10-20 seconds in getting up from the kachcha road. PW-5 has also
testified that their faces were full of dust and she telephoned the Police
only after 4-5 minutes.
29. We have also noticed another material contradiction. In her testimony,
PW-5 has stated that when she was being taken to the Police Station, her
father met them on the way, while PW-8, Monika, has testified that her
father took her to the hospital when she reached home from the Police
Station as her father was at home at that time. Ordinarily, this may seem a
minor contradiction or variation with respect to the statements of both the
witnesses but it gains immense importance in the facts of this case as the
Crl.A.937/2013 Page 18 of 30
testimonies of PW-5 and PW-8 would show that despite knowledge of
kidnapping, the husband of the victim continued to remain at home and
did not reach the spot of the incident. It is extremely unusual that the
father, being aware that his two minor daughters were stranded at an
isolated place, did not rush to the place of occurrence. In the normal
conduct, under such circumstances, any father would reach the place of
incident to rescue his minor daughter(s) and not wait for their arrival at
home. It may also be noticed that PW-5, Sonia, in her statement to the
Police had stated that her mother's mobile phone was with her, while in
Court she has testified that her mother threw the mobile phone out of the
car. Surprisingly PW-8, Monika, has not stated anything about the mobile
phone more particularly, as to whether her sister had the mobile or her
mother had the presence of mind to throw the mobile out of the car.
30. It is a settled principle of law that conviction can be based on the sole
testimony of the victim of sexual assault without corroboration from any
other evidence. The statement of the prosecutrix is more reliable than any
other witness. Where the testimony of victim of sexual assault instills the
confidence in court, the same can be relied for conviction of the accused.
It is also a well settled principle of law that corroboration as a condition
for judicial reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under the given
circumstances. In the case of Vijay @ Chinee v. State of Madhya
Pradesh reported at (2010) 8 SCC 191, the Supreme Court has held:
"Thus, the law that emerges on the issue is to the effect that the
statement of the prosecutrix if found to be worthy of credence and
reliable, requires no corroboration. The Court may convict the
accused on the sole testimony of the prosecutrix."
31. In the case of Md. Ali Vs. State of UP reported at 2015 (3) SCALE 274,
Crl.A.937/2013 Page 19 of 30
the Apex Court has held that:
"Be it noted, there can be no iota of doubt that on the basis of the
sole testimony of the prosecutrix, if it is unimpeachable and beyond
reproach, a conviction can be based.".
[Emphasis supplied]
32. In another case Mohd. Iqbal v. State of Jharkhand reported at (2013) 14
SCC 481 the Apex Court has held that "There is no prohibition in law to
convict the accused of rape on the basis of sole testimony of the
prosecutrix and the law does not require that her statement be
corroborated by the statements of other witnesses."
33. The present appeal is to be decided on the touchstone of law which has
been laid down by the Supreme Court of India with regard to the
deposition of the prosecutrix in the case of rape. In the light of the
testimony of the prosecutrix, it is to be considered whether the trial court
has rightly reached the conclusion of acquittal in this case. We have
discussed the evidence of PW-2 (prosecutrix) in the paragraph aforegoing.
34. In the present case, we find the testimony of PW-2, the prosecutrix, to be
highly unreliable. Before the contradictions in the statement of the
prosecutrix are analyzed, we find that the manner of arrest of the
respondents (accused before the trial court) is also shrouded in mystery,
which also makes the story of the prosecutrix a suspect. We may also
notice that no TIP was conducted with regard to the respondents as except
Narender @ Balle, no other respondent was known to the prosecutrix.
35. On careful examination of the evidence placed on record it would reveal
that Kapil and Anil @ Chaman surrendered in the Police Station on their
own and were then arrested.
36. We may also notice that except for Narender @ Balle, the prosecutrix was
not known to any of the remaining accused persons, yet no test
Crl.A.937/2013 Page 20 of 30
identification parade was carried out. All the accused persons were
present in the Police Station with their faces uncovered, and on those days
the prosecutrix had come to the Police Station to enquire about her case,
which is also a strange coincidence. The respondents, Satish and Rajesh
@ Anil, have also not been identified by the prosecutrix even in the Police
Station.
37. The cross-examination of PW-2, victim, with regard to identifying the
accused persons reads as under:
"... It is correct that on 11.06.2010 I again went to PS Najafgarh to
know about the progress of my case and I saw accused Kapil sitting
in the PS and I identified accused Kapil who had kidnapped me and
had raped me.
It is correct that on 17.06.2010 when I again went to PS
Najafgarh to know about the progress of the case, I identified
accused Niranjan as a person who had kidnapped me on 10.03.2010
along with his associates.
It is correct that on 31.07.2010 I again went to PS Najafgarh
where I had identified accused Anil @ Chaman as the person who
had kidnapped me and hit me on my temple with a revolver during
kidnapping........"
38. Without the identity of the accused, Satish, Kapil, Niranjan, Anil @
Chaman and Rajesh @ Anil having been established, the prosecution
cannot claim that Satish, Kapil, Niranjan, Anil @ Chaman and Rajesh @
Anil are the persons who kidnapped and raped the prosecutrix.
39. In our view the trial court has rightly reached the conclusion that evidence
of identifying of accused persons at the trial court for the first time is
inherently of a weak character and inadmissible.
40. Para 33 of the judgment of the trial court reads as under:
"33. It is also relevant to point out here that as per the prosecution
case, the disclosure statements made by accused Narender and
Crl.A.937/2013 Page 21 of 30
accused Satish @ Jassa, who were the first to have surrendered and
to be arrested, led to the arrest of other accused persons in this case.
I have minutely perused the disclosure statement Ex. PW3/A of
accused Narender and Ex.PW25/E of accused Satish @ Jassa.
Accused Narender in his aforesaid disclosure statement has not
mentioned the description or residential address of any of the
accused. Accused Satish has neither admitted his own involvement
in the incident of kidnapping and rape of the prosecutrix nor has
disclosed the involvement of any other accused in the same. He has
not given the description or residential address of any other
accused. Hence, I fail to understand that on what basis did the
police arrest the accused in this case and implicated them in this
case.
41. In our view, the manner in which the prosecutrix escaped from the
accused persons, is a very material factor and there are serious
contradictions in her testimony in this regard, which cannot be ignored. It
may be noticed that the prosecutrix was declared hostile on certain
aspects. Firstly, in the statement recorded under Section 161 of the Code
of Criminal Procedure, prosecutrix has stated that she escaped from the
house where she was kept after kidnapping, which is in Rohtak (house of
Niranjan's sister), took Rs.50/- from an old man and boarded a bus to
Delhi, whereas in the statement recorded under Section 164 of the Code
of Criminal Procedure she has deposed before the Magistrate that the
accused Narender's sister Billo and her sister-in-law took her to
Bahadurgarh bus stand, they purchased a ticket for her to Nangloi and
Billo had given her a sum of Rs.100/-. Both these versions are entirely
different. The prosecutrix was confronted with her own statement dated
11.3.2010, which was given to the Police. It may also be noticed that the
prosecutrix has also not handed over bus tickets to the Police during
investigation.
42. Secondly, in her testimony before the Court, the prosecutrix was
Crl.A.937/2013 Page 22 of 30
confronted with her statements recorded under Sections 161 and 164 of
the Code of Criminal Procedure, wherein she has not stated that two boys
were sitting in the car, were armed with revolvers. Thirdly, the conduct of
the prosecutrix is doubtful as she nowhere has stated as to how she came
to know that the house, in which she was allegedly raped, was the house
of Narender and other house, where from she escaped, was the house of
Narender's sister. We also find it unusual that the manner in which the
prosecutrix has identified the house of Narender @ Balle, the manner in
which she has been able to identify the family members of Narender @
Balle and the precise relationship. Simply to say that since they were
being referred to by their names as by itself is not a plausible explanation
as this would not establish their relationship.
43. The testimony of the prosecutrix is also unreliable as PW-2 in her
statement recorded under Section 164 of the Code of Criminal Procedure,
has stated that the accused Narender after raping her in his house, put her
in a vehicle and took her to the house of her sister Billo in Rohtak, where
she was kept for the night. In the morning of the next date at about 5.30
a.m., Billo and her sister-in-law (Jethani) and a boy took her to a bus
stand at Rohtak, bought a ticket for Nangloi and made her to sit in a bus.
She got down from the bus at Bahadurgarh, boarded another bus for
Gurgaon and finally got down at Deenpur. Billo had given her a sum of
Rs.100/- also. However, she has given a totally different story in her
testimony before the court, wherein she deposed that only ladies were in
that house for the night. In the morning when they were sleeping, she
came out of the house, went to a tea stall near the bus stand, borrowed
Rs.50/- from an old man and boarded a bus for Delhi from Rohtak.
44. It may also be noticed that the prosecutrix had also testified that she had
bitten the fingers of the assailants but no such injury marks were found on
Crl.A.937/2013 Page 23 of 30
the fingers of the accused persons during their medical examination. As
far as the clothes of the prosecutrix, which were sent for forensic
examination are concerned no semen was detected on them. In all cases
of rape and even of gang rape there may not be any injury mark on the
body of the victim as a helpless victim may not be in a position to resist
the barbaric act. However, in this case where the case of the prosecutrix
is that she was raped by three person (Kapil, Niranjan and one more boy)
in open field, and thereafter by Narender @ Balle. There would be strong
possibility of injury on the body of the victim on account be being raped
by three persons in the open field. This gains importance on account of
the totality of the evidence on record. Although in isolation this by itself
would not be a ground to disbelieve the case of the prosecutrix.
45. Respondent, Narender @ Balle, was known to the victim prior to the
incident. As per the testimony of the prosecutrix, at first she was raped by
the accused Kapil, Niranjan and one other boy in the open field, while the
other two accused kept a watch. Thereafter it has been alleged that
Narender @ Balle, had taken the prosecutrix to his house when his
mother, wife, sister, sister-in-law and two other boys were present in the
house. The prosecutrix has also testified that the wife and sister of
Narender @ Balle did not object and in fact helped Narender in taking the
prosecutrix to the room upstairs so that he could rape her.
46. The testimony of the victim, in our view, cannot be relied upon, as it is
unbelievable and beyond any imagination that Narender would have raped
her in the presence and in the knowledge of his mother, wife, sister and
sister-in-law.
47. The case of the prosecution is not even supported by the medical
evidence. We have extracted the evidence of Dr.Neelu Mishra. Her
evidence is to be examined and analyzed having regard to the fact that the
Crl.A.937/2013 Page 24 of 30
prosecutirx has alleged rape by three persons.
48. As per the observations made by PW-1, Dr.Neelu Mishra, in her report,
Exhibit PW-1/A, there were two minor scratch marks on the right
shoulder of the prosecutrix. No injury marks on the external or internal
genital were present. It may also be noticed that in the first and second
column appearing on her report, Exhibit PW-1/A, the prosecutrix had
stated that it was a case of attempt penetration and not complete
penetration. Also during cross-examination, PW-1 has testified that two
scratch marks, observed on the shoulder of the patient (prosecutrix), can
be caused by rubbing of the shoulder by any object. Also during cross-
examination, PW-1 has testified that she had conducted gynae
examination on many patients like the prosecutrix but she could not come
to a definite opinion on the basis of clinical examination whether rape was
committed or not. She has also testified that she did not see any sign of
forced rape in the present case. The medical examination also does not
show any injury on the temple region alleged to be caused by the revolver
of Kapil.
49. We have also examined the report of the CFSL, Ex.PW-25/H, Ex.PW-
25/J and Ex.PW-25/K, as per which no semen was found on the clothes.
50. The trial court has also rightly taken into account that in case a mobile
phone was thrown on a kachcha road, which was full of dust, the phone
would also have either been lost in dust considering the fact that the faces
of PW-5 and PW-8 were covered by dust and it had entered into their
eyes, nostrils and mouth or that dust would have gone into the small
crevices in the key board of the phone and would have become difficult to
operate.
51. In paras 40, 42 and 43 the trial court has observed as under:
Crl.A.937/2013 Page 25 of 30
"40. As per the aforesaid report Ex.PW1/A, the prosecutrix had told
PW1 during medical examination that she had bitten the fingers of
both the assailants. She has not stated so in her testimony before
this court as PW2 or in her statement u/s.161 Cr.PC and u/s.164
Cr.PC. No such bite mark has been seen on the fingers of any of the
accused during their medical examination. Further, the prosecutrix
has deposed that accused Anil @ Chaman had hit her on the head
with the pistol, as a result of which she had received injury on her
temple, which she had shown to the police as well as to the doctor.
However, as noted herein-above, no such injury was found on her
body during her medical examination.
42. The statements given by the prosecutrix to the doctor (PW1)
and the result of her medical examination contained in report
Ex.PW1/A undoubtedly knock out the prosecution case in totality.
It is manifest that the prosecutrix had not been raped at all on the
day of incident. She has fabricated a totally false story about her
kidnap and rape and has framed the accused falsely in this case.
The prosecutrix has clearly lied to the court by deposing that she
was raped by three of the accused, when she had herself told the
doctor, during her medical examination that it was a case of only
attempted rape and that too by two unknown assailants.
43. Even the allegation of attempted rape has not been proved. As
per the medical report Ex.PW1/A, the assailants had ejaculated
outside the body orifice of prosecutrix. At the same time, she has
also stated that neither she nor the assailants themselves performed
masturbation. Thus, when there was neither penetration nor
masturbation, how did the assailants ejaculate. There has to be
some stimulus for ejaculation. If it is taken to be true that the
assailants had ejaculated, it cannot be ruled out that some semen
drops would have fallen on the clothes of prosecutrix. It appears
from the evidence of prosecutrix that she had not changed her
clothes after the sexual assault till her medical examination and her
clothes were seized by the police. It also appears from the evidence
on record that clothes of the prosecutrix were sent to FSL, Rohini,
for forensic examination. However, the FSL result has not been
produced or proved on record. Hence, the allegations about the
attempted rape also must fail."
52. Minor contradictions or insignificant discrepancies should not be a ground
for throwing out an otherwise reliable prosecution case. A prosecutrix
Crl.A.937/2013 Page 26 of 30
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 substantial, which may lend assurance to her
testimony. On careful analysis of the testimony of the prosecutrix, we
find a large number of contradictions, inconsistencies, concealment,
improvements and exaggerations in her statement which as noted above,
which casts shadow of doubt and led us to find it difficult to rely upon her
version. In view thereof, we have carefully examined the testimonies of
the two daughters, the evidence of the doctor and the FSL report, let us
see whether any other evidence has been adduced by the prosecution on
record to support the version of the prosecutrix.
53. In the case of Rai Sandeep @ Deepu Vs State of NCT of Delhi reported
at (2012) 8 SCC 21, the Apex Court has culled out the test of sterling
witness. In our view the prosecutrix has failed to pass the test. Relevant
paragraph of the judgment reads as under:
"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
Crl.A.937/2013 Page 27 of 30
and everyone of other supporting material such as the recoveries
made, the weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said version should
consistently match with the version of every other witness. It can
even be stated that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any missing link
in the chain of circumstances to hold the accused guilty of the
offence alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such tests to be
applied, it can be held that such a witness can be called as a 'sterling
witness' whose version can be accepted by the Court without any
corroboration and based on which the guilty can be punished. To be
more precise, the version of the said witness on the core spectrum
of the crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects should
match the said version in material particulars in 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."
54. In our view the statement of the prosecutrix was not corroborated either
from the medical evidence, scientific evidence or any other material on
record. In the case of Radhu vs. State of Madhya Pradesh reported in
2007 Cri. LJ 4704, the Apex Court has held that:
"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 person has persuaded a gullible or obedient
daughter to make a false charge of a rape either to take revenge or
extort money or to get rid of financial liability. Whether there was
rape or not would depend ultimately on the facts and circumstances
of each case."
55. In the case of Raju v. State of Madhya Pradesh reported at (2008) 15
SCC 133, the Apex Court has held that testimony of the victim of a rape
cannot be presumed to be a gospel truth and observed that false
allegations of rape can cause equal distress, humiliation and damage to the
accused as well. Relevant portion of the judgment reads as under:
Crl.A.937/2013 Page 28 of 30
"11. It cannot be lost sight of that rape causes the greatest distress
and humiliation to the victim but at the same time a false allegation
of rape can cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected against the
possibility of false implication, particularly where a large number
of accused are involved. It must, further, be borne in mind that the
broad principle is that an injured witness was present at the time
when the incident happened and that ordinarily such a witness
would not tell a lie as to the actual assailants, but there is no
presumption or any basis for assuming that the statement of such a
witness is always correct or without any embellishment or
exaggeration."
56. The Apex Court in the case of Abbas Ahmed Choudhary Vs. State of
Assam reported at (2010) 12 SCC 115, has held as under:
"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."
57. The trial court has also taken into account the testimonies of the defence
witnesses i.e. DW-1 and DW-2. The defence witnesses have testified that
the prosecutrix was running and operating an employment racket. Both
DW-1 and DW-2 have testified that they had paid money to the appellant
herein, who had promised them that she could arrange for employment.
DW-1 has testified the certified copy of the FIR, Exhibit DW-1/A; the
order dated 21.5.2011 passed by Judicial Magistrate, First Class, Rohtak,
(DW-1/B) vide which bail was granted to Bimla; and the order by which
bail was granted to her husband (DW-1/C). DW-2 has deposed on the
lines of DW-1.
58. It is settled law that the testimony of the prosecutrix has to be consistent
Crl.A.937/2013 Page 29 of 30
and natural in line with the case of the prosecution and free from all sorts
of infirmities, so as to inspire confidence in the Court. It cannot be
presumed that the statement of the prosecutrix is always true or without
any embellishment.
59. In the case at hand the testimony of the prosecutrix is not natural and
consistent with the case of the prosecution. Her version has no correlation
with other supporting material being medical and scientific evidence.
After rescanning the entire case in its right perspective, we are of the firm
view if the evidence of the prosecutrix is read and considered in totality of
the circumstances along with 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, as her version does not
corroborate with the medical evidence. On the contrary, based on the
testimonies of DW-1 and DW-2, the motive of the prosecutrix, to falsely
implicate the respondents, herein stands established. Resultantly, we find
no merit in the appeal and the same is accordingly dismissed.
G. S. SISTANI, J.
SANGITA DHINGRA SEHGAL, J. MAY 29, 2015 msr/ssn Crl.A.937/2013 Page 30 of 30