Allahabad High Court
Ramesh vs State Of U.P. on 15 November, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR. Judgement reserved on 10.10.2022 Judgement delivered on 15.11.2022 Court No. - 66 Case :- CRIMINAL APPEAL No. - 691 of 2006 Appellant :- Ramesh Respondent :- State of U.P. Counsel for Appellant :- Devendra Saini, Anupam Dubey, Dr.Hridyawati Misra Counsel for Respondent :- Govt. Advocate Hon'ble Samit Gopal,J.
1. The present Criminal Appeal under Section 374(2) Cr.P.C. has been preferred by the appellant Ramesh against the judgment and order dated 01.02.2006 passed by Additional District and Sessions Judge, Room No.8, Saharanpur in Sessions Trial No.175 of 2005 (State Vs. Ramesh) convicting and sentencing the appellant under Section 376 IPC to 10 years R.I with fine of Rs.3,000/- and in default of payment of fine to 3 months further rigorous imprisonment. The trial court has further directed that half of fine as recovered shall be paid to the victim/P.W.2 as compensation.
2. The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and as per Section 228A of the Indian Penal Code. She is, thus, referred to as ''X' in the judgment.
3. An application dated 18.01.2005 written by Ghanshyam Singh, S/o Karm Singh was given by Dheer Singh, S/o Bholaram, R/o Village Ganeshpur, Police Station Viharigarh, District Saharanpur to the S.H.O Police Station Mirzapur, District Saharanpur alleging therein that his sister Shishwati was married in village Vanjarewala from whom one daughter was born. Shishwati was abandoned by her husband after which her court marriage was done with Ramesh, S/o Bhola (accused-appellant) of village Kashampur around 7 years back. The victim ''X' was sent with Shishwati considering Ramesh as her father after which victim ''X' was brought by the first informant and was kept by him and she started her studies who was studying in class VIII. His sister was of unsound medical condition and used to remain ill. On 14.1.2005 being Friday, Ramesh came to his village and took victim ''X' with her by saying that Shishwati is unwell, victim ''X' would give her medicine and food and brought her to his village Kashampur. On the same night, Ramesh took victim ''X' from near the sister of first informant while being in an intoxicated condition and took her to another room, tied her hands and raped her. On the next day victim ''X' told about the incident to Shushila, the niece of the first informant who was married in Kashampur who then on telephone told about it on the next day to the first informant on which on 17.1.2005, he and other persons went to Kashampur and inquired about it from victim ''X' who told them that Ramesh tied her hands and raped her. She was in a bad condition. The first informant then got many people of village Kashampur collected and told them about the incident who deprecated it and told him to do whatever he likes. The victim ''X' is aged about 13 years. She has been brought to the police station. The first informant report be thus lodged and action be taken. The said application is Exbt. Ka-1 to the records.
4. On the basis of the said application, an FIR was lodged as Case Crime No.12 of 2005 under Section 376 IPC at Police Station Mirzapur, District Saharanpur on 18.1.2005 at 9.30 a.m. by Dheer Singh against Ramesh, S/o Bhola. The Chik FIR is Exbt. Ka-2 to the records.
5. The Investigating Officer took into possession a printed Salwar and an underwear of victim ''X'. Dheer Singh and Smt. Rekha Kiran w/o Dheer Singh are the witnesses of the same. The recovery memo of the same is Exbt. Ka-5 to the records.
6. The victim was medically examined on 18.1.2005 at 9.30 p.m. by Dr. Rashmi Mehta, the Medical Officer, Womens Hospital, Saharanpur. After general examination, the doctor noted as follows:-
"Height-145 cm. Weight-40 kg. teeth-14/14 Sec. sex character (breast, pubic and axillary hair) developed.
No mark of injury seen all over body."
On internal examination, the doctor noted as follows:-
"No injury seen on private part. Old torn and healed hymen present. Vagina admits two finger easily. P/s slight bleeding per vagina present coming from uterus. No injury seen on vagina. Vaginal smear made and sent to pathology for presence of spermatozoa."
For determination of age, X-Ray of right elbow, wrist and knee was advised. For blood grouping she was referred to the pathology department of S.B.D. Hospital.
She was advised to give her under clothes at the Police station for being sealed. The said medical examination report is Exbt. Ka-10 to the records.
7. The X-Ray of the victim ''X' for age was done on 19.1.2005. The radiologist reported as follows:-
"1. Right wrist:- Lower epiphysis of radius & ulna have not fused.
2. Right Elbow:- All epiphysis around elbow have fused.
3. Right knee:- Lower ephiphysis of femur and end of tibia have fused. Upper epiphysis of tibula partially fused."
The said report is Exbt. Ka-9 to the records.
8. The Senior Radiologist, S.B.D. Hospital gave his report. Subsequently a supplementary report dated 21.1.2005 was prepared by Dr. Rashmi Mehta mentioning therein that the blood group as per the report of the pathologist Dr. Ranjana Chaudhary is "B Positive". The vaginal smear report tested negative for spermatozoa. The opinion of the doctor is as follows:-
"1. No opinion can be given regarding recent rape as no fresh injury found.
2. According to radiologist report age of girl is between 16 and 17 years (sixteen and seventeen)."
The said supplementary report is Exbt. Ka-11 to the records.
9. The Salwar and underwear of victim ''X' were sent to the Forensic Science Lab, Agra for testing. A report dated 26.4.2005 was sent by the Assistant Director of the said lab. The Salwar was marked as item no.1 and the underwear was marked as item no.2. The opinion as per the examination is as follows:-
"1. On item nos.1 and 2 on big pants blood stains were found.
2. On item no.1 and 2 spermatozoa were found.
3. On item no.1 and 2 human blood was found.
4. On item no.1 and 2 human semen was found.
5. On item no.1 and 2 blood of group "B" was found.
6. On item no.1 and 2 the spots of semen could not be tested for their group and as such no definite opinion could be given about it.
The said report of the Forensic Science Lab is Exbt. Ka-8 to the records."
10. A site-plan of the place of occurrence was prepared by the Investigating Officer on 20.1.2005. The same is Exbt. Ka-6 to the records. In the site-plan point B which is adjacent to the kitchen and is a tin-shed which is shown to be the place of occurrence.
11. The X-Ray plates of victim ''X' for determination of her age were also filed and proved which were marked as Exbt. 4 and 5 to the records.
12. The investigation concluded and a Charge Sheet No.14 of 2005, dated 25.1.2005 under Section 376 IPC was submitted against the accused-appellant. The same is Exbt. Ka-7 to the records.
13. Vide order dated 4.5.2005 passed by Sessions Judge, Saharanpur, charge under Section 376 IPC was framed against the accused-appellant. He pleaded not guilty and claimed to be tried.
14. The charge as was framed on 4.5.2005 read that on 14.1.2005 in the night some times in village Kashampur within Police Station Mirzapur, District Saharanpur, victim ''X' the niece of the first informant Dheer Singh was forcefully raped by the accused and as such an offence under section 376 IPC is made out which is cognizable by the said court and hence charge was framed.
15. Subsequently an application being Application No.11-Kha was moved by the learned Government counsel before the trial court stating therein that in the charge as framed on 4.5.2005, there is an error of the date of offence. The trial court vide order dated 28.7.2005 allowed the said application, set-aside the charge as framed on 4.5.2005 and in place of it directed that the date of the incident be mentioned as 15/16.01.2005 in the night and thus amended the said charge on 10.08.2005 and framed charge under section 376 IPC against the accused-appellant. Even on 10.08.2005, the accused pleaded not guilty and claimed to be tried.
16. The trial then started in which the prosecution produced Dheer Singh, the first informant as P.W.1, victim ''X' was produced as P.W.2, Surajpal, Constable Clerk Police Station Nagal was produced as P.W.3, Sub Inspector Shiv Kumar Sharma, the Investigating Officer was produced as P.W.4, Doctor Sudhakar Verma, the Radiologist was produced as P.W.5, Constable Subhash Chand was produced as P.W.6 and Doctor Rashmi Mehta, Medical Officer, Womens Hospital, Saharanpur was produced as P.W.7.
17. The accused-appellant in his statement recorded under Section 313 Cr.P.C. has stated that Dheer Singh, the maternal uncle of victim ''X' himself dropped her to his house. He further states that he informed Dheer Singh that the girl has run away from the house. He called Dheer Singh by informing him on phone. He further states that he has no children. Dheer Singh has falsely implicated him just to grab his property. Victim ''X' has run away even earlier for about 14 days. Her mama had dropped her on 15th of the month. On 16th, she again went away from the house and then he launched search for her. He apprehended her along with a boy with whom she was trying to elope. The boy ran away but she was recovered. On 17th, he made a telephonic call at the house of Satish and called Dheer Singh then there was a Panchayat in the village. In the Panchayat it was decided to send the mother and the daughter with Dheer Singh, due to the said enmity Dheer Singh has falsely implicated him.
18. The trial court then convicted the accused-appellant as stated above.
19. Heard Sri Anupam Dubey, learned Amicus Curiae for the appellant, Sri Sanjay Kumar Singh, learned counsel for the State and perused the records of this appeal and also the trial court records.
20. Learned Amicus Curiae argued that there are serious contradictions in the statement of the victim recorded under section 164 Cr.P.C. and that given before the trial court. It is argued that in her statement under Section 164 Cr.P.C., she states that her father Ramesh took her to a tin shed room, tied her hands, gagged her mouth with a cloth and then committed rape on her after which she became unconscious but in her statement in court, she states that she was sleeping with her mother and her father was sleeping under the tin-shed outside. When she opened her eyes she found herself naked. It was about 5 a.m. In between she was unconscious. She does not know as to what happened with her. It is further argued that as per the prosecution case the victim ''X' for the first time informed about the incident to Smt. Shushila, the niece of the first informant who is married in village Kashampur which is the village where the incident is alleged to have taken place but Smt. Shushila, the niece of the first informant has not been examined in the present matter. It is further argued that even Smt. Shishwati, the mother of victim ''X' has also not been examined in the trial. The said two persons namely Shushila and Smt. Shishwati are important witnesses and their non-examination in the trial would render the entire prosecution story as suspect. It is next argued that the medical evidence does not corroborate with the prosecution case. The doctor did not find any injury on the private parts of the victim. The hymen was found to be old torn and healed and even the opinion of the doctor in the supplementary report is to the effect that no opinion can be given regarding recent rape as no fresh injury was found. It is argued next that even the age of the victim as per the supplementary report was opined to be between 16 and 17 years which would also go to show that the version as given in the FIR that she was aged about 13 years is incorrect. It is argued that as per the age given by the doctor in the supplementary medical examination which is based on the radiological opinion and by giving benefit of variation of two years, she would be major. It is further argued that there is no cogent and reliable evidence on record to substantiate the allegations against the accused-appellant. The accused-appellant is the step father of the victim ''X'. In his statement under Section 313 Cr.P.C., he has in detail stated about the reason for his false implication which was a motive for his false implication as the first informant wanted to grab his property, as such the present appeal deserves to be allowed. The impugned judgement and order of conviction of the trial court deserves to be set-aside and the accused-appellant is liable to be acquitted of the charges levelled against him.
21. Per contra learned counsel for the State has vehemently opposed the arguments of learned Amicus Curiae for the appellant and argued that the accused-appellant is named in the FIR. There are allegations against him of committing rape upon his step daughter. The medical examination report although does not state of the recent rape being committed on her which was only on the basis of the fact that there was no fresh injury found on the victim ''X' but the report of the Forensic Science Lab Exbt. Ka-8 to the records corroborates with the allegations of rape as the chemical examiner has found semen and spermatozoa in the clothes of the victim ''X' which were of human origin. Even the blood group ''B' was found on the clothes which also co-relates with the blood group of victim ''X' which would go to show that there was bleeding from the private parts of the victim ''X'. It is argued that the contradictions as has been argued to be with regards to the statement under Section 164 Cr.P.C. and the statement given in the court by the victim ''X' is concerned, the same is minor in nature which would not in any manner render the entire case to be false. It is argued that the accused-appellant is the step father of the victim ''X'. There are no chances of false implication and mis-identity. It is argued that in so far as the mother of the victim ''X' being not examined in the trial, the FIR itself states that she was a lady having mental retardness. It is argued that Shiv Kumar Sharma, P.W.4 who is the Investigating Officer of the case was cross-examined for this aspect who stated that he tried to interrogate Smt. Shishwati but he came to know that she has left the village Kashampur. He further states that he did not make an attempt to interrogate her by going to village Ganeshpur. The statement of victim ''X' is unimpeachable. She has stated of the accused-appellant committing rape on her. The prosecution story is corroborated by her in her statement. The same is sufficient to bring home the charges against the accused-appellant and recording conviction. It is argued that non-production of Smt. Shushila and the mother of the victim may be a lapse on the part of the Investigating Officer but the same would not in any manner go to dislodge the entire prosecution case. The prosecution has succeeded in proving its case beyond reasonable doubt. The present appeal deserves to be dismissed.
22. P.W.1 Dheer Singh is the first informant of the present case and the maternal uncle/mama of victim ''X'. He states that the accused is his brother-in-law. Shishwati is his sister. She was earlier married in village Vanjarewala with Nathi. From the wedlock victim ''X' was born. Nathi had left Smt. Shishwati. Later on she performed court marriage with accused-appellant Ramesh. She was then sent with Ramesh. Victim ''X' used to live with him. Victim ''X' is aged about 13-14 years and is living in village Ganeshpur and studying in a school there in class VIII. His sister is mentally retarded. On 14.1.2005 accused Ramesh came to his house and stated that Shishwati is ill and victim ''X' be sent to take care of her. On the next day victim ''X' was sent with him to take care of Smt. Shishwati. Later on Shushila called him and told him that the father of the victim ''X' has done illegal act on her. He then went to Kashampur and inquired it from victim ''X'. She told him about the entire incident. Then on the next day he got a report written by Ghanshyam. He identifies the said application/report and proves his signature on it and proved the same. The same is marked as Exbt. Ka-1. He states that on the basis of the said application, a report was lodged at the Police Station. Police got the medical examination of victim ''X' conducted. Her clothes which she was wearing at the time of the incident were taken into possession by the police of which a recovery memo was drawn on which he signed. He identified the same and his signature on the recovery memo.
23. P.W.2 victim ''X' states that her mother Smt. Shishwati was married to Nathi Ram, resident of Vanjarewala who had left her. She is the child of Nathi Ram. She was brought by Dheer Singh, her mama. She was studying in a school in Ganeshpur. Her date of birth is 15.10.1992. She files a school certificate for date of birth. She states that later on her mama Dheer Singh got her mother married with Ramesh after which she accepted him as her father. Her mother Shishwati used to remain ill. On 14.1.2005 Ramesh came to Ganeshpur and told her mama Dheer Singh that Shishwati is unwell and to take care she has to be taken. He stayed there overnight. Next day on 15th January she went with Ramesh. In the night after preparing the food, she was lying near her mother. Ramesh gave medicines to her mother after which she became unconscious. He then took her to a room of tin-shed and gagged her mouth with a cloth and tied her hands and committed rape on her. She became unconscious. When she regained consciousness, she found herself and Ramesh naked. She then untied her hands and told about the incident to her mother and then on the next day told about it to Shushila who was married in Kashampur. Shushila then told her mama on which he came to Kashampur and took her away. A report was lodged, her medical examination was conducted. The clothes which she was wearing, was taken by the police and a recovery memo was prepared. She identifies her signature on the said memo. A packet was opened in the court containing the clothes of the victim ''X' which was identified by her as the clothes which she was wearing at the time of incident. The same were marked as material Exbt. 1, 2 and 3.
24. In her cross-examination, she states that she has studied up-to class VIII and then left her studies. She was studying in Inava Public School which is from class 1 to 8. She used to go to school daily. After the incident, she did not go to the school. On 14.1.2005 she went to the school. She can submit the certificate about it. She denies that she ran away with a boy of the school in the last week of December and then on 13th January, she was recovered by her mama along with boy. She further denies that her mama Dheer Singh had left her with her mother on 14th January. She denies that on 16.1.2005 a boy of village Kashampur came and she was preparing to run away with him. She further denies that on 17.1.2005 accused Ramesh has called her mami Rekha Kiran and mama and others to village Kashampur. She denies that a Panchayat was held on 17.1.2005 about it in which her mama Dheer Singh and relatives were insulted and she and her mother were thrown out of the house on the same day. She further denies that due to the said enmity her mama and mami have lodged a false report. She denies that due to the same her mama did not let her go to the school and she was kept guarded till date. She states that her statement was recorded by the Investigating Officer after 2-3 days of the incident in Mirzapur Police Station. Her statement was not recorded on the day the FIR was lodged. It was recorded on the next day of lodging of the report. She then states that it was recorded on 18th. She did not go to the police station after that. She states that she has told to the Investigating Officer that Ramesh stayed overnight on 14th. If the same is not written in her statement, she cannot state about the reason. She further told the Investigating Officer that on the day of incident after preparing the food she laid near her mother after which Ramesh gave medicines to her mother who then became unconscious. If the same is not written in the statement, she cannot tell the reason. She had slept after taking food. She does not remember when she was taken under the tin-shed. She had reached to Kashampur from Ganeshpur at 8 p.m. When she reached there, her mother did not cook food. She on reaching prepared food. She cooked food for about 1-½ hours. She and her mother had taken meals. Her father had not eaten it. After eating food she slept near her mother. Her father slept outside under tin-shed. When she opened her eyes, she found herself naked. It was about 5 a.m. In between she was unconscious. She does not know what happened with her. After it she slept near her mother. She did not prepare tea and breakfast in the morning. She went to her sister and stayed there till 17.1.2005 till her mama came. She denies the suggestion that in her statement she has stated that no such incident has taken place. She further denies that she is giving a false statement on being prompted by her mama and no such incident has taken place and her mama is taking revenge of his insult in the Panchayat. It is true that in the house of accused Ramesh there is no child or any other person but it is incorrect that her mama has taken the land of the accused Ramesh and has lodged a false case.
25. P.W.3 Suraj Pal is the Head Constable of Police Station Mirzapur. He states of lodging of the present FIR and also of transcribing the corresponding G.D. He proves the same. He further states that a sealed bundle was brought by the Investigating Officer on 20.1.2005 which was recorded in the G.D. and was deposited. The report regarding the same was transcribed by Head Constable Ajit Singh whose handwriting was identified by him.
26. P.W.4 Shiv Kumar Sharma is the Investigating Officer of the matter. He took up the investigation and recorded the statement of witnesses, arrested the accused on 19.1.2005, took the clothes of victim ''X' and prepared its recovery memo and filed a charge sheet against the accused. He further states that a report of the Forensic Science Lab was received by him which is paper no.15-Kha to the records and was marked as Exbt. Ka-8.
27. P.W.5 Dr. Sudhakar Garg is the Senior Radiologist, S.B.D. Hospital, Saharanpur. He had conducted the X-Ray examination of victim ''X' and had given his report regarding the same. He proves the X-Ray plates and X-Ray report. The details have already been stated above.
28. P.W.6 Constable Police Subhash Chand was posted at Police Station Mirzapur, District Saharanpur. He has given the link evidence of the material which was in a sealed bundle and was taken by him from the Police Station to the Forensic Science Lab, Agra and deposited there.
29. P.W.7 Dr. Rashmi Mehta is the Medical Officer, Womens Hospital, Saharanpur. She conducted the medical examination of the victim ''X' and also prepared the supplementary report. The details of the reports have already been stated above. She states about the same in the court.
30. In her cross-examination to court she states that victim ''X' as per estimation of the age could be less than 18 years of age but cannot be above it. She states that in any event the age of the victim cannot be above 18 years.
31. After having heard the learned counsel for the parties and perusing the record, it is evident that the appellant is the step father of the victim ''X' and the brother-in-law/Jija of P.W.1 Dheer Singh, the first informant of the matter. The evidence of the accused-appellant coming to the house of P.W.1 and taking away the victim ''X' on the pretext of her mother being ill and she to attend her and take care of her is a consistent prosecution case. The same does not get distorted in any matter. The identity of the accused-appellant cannot be doubted by any stretch of imagination as he is the step father of victim ''X'. The case right from the inception is of the accused-appellant taking away victim ''X' from the house of the first informant to his house and then committing rape upon her in the night. The same is consistent in the FIR and also in the statement of victim ''X'. The manner of the incident is specific and without any change throughout the case. The clothes of the victim were sent to the Forensic Science Lab which were the Salwar and her underwear. All the clothes were found to be stained by semen of human origin. This would corroborate with the allegation of victim ''X' being raped. Smt. Shushila being not examined although the prosecution has not come out with any justification about it but the same would not render the entire prosecution evidence as false. In so far as Smt. Shishwati, the mother of the victim ''X' is concerned and the fact that she has not been examined is concerned, the FIR itself states that she is mentally retarded. The Investigating Officer Shiv Kumar Sharma, P.W.4 in his cross-examination stated that he tried to interrogate her in village Kashampur but he was informed that she has left the said place and gone somewhere else after which he did not make an effort to go to village Ganeshpur and examine her. Moreover, the non-production of the said two persons in the trial would not render the entire prosecution as false or even doubtful.
32. It is the settled principle of law that the testimony of a prosecutrix or a victim of rape stands at par with that of the testimony of an injured witness. The same has been held in the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain : (1990) 1 SCC 550 in para 16 which is extracted herein:
"16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
"It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation."
(emphasis supplied)
33. Further in the case of State of Punjab Vs. Gurmit Singh : (1996) 2 SCC 384 the Apex Court held that for the offence under Section 376 IPC, conviction can be made on the sole testimony of the rape victim. It was also held that the negligence of the investigating officer cannot effect the creditibility of the statement of the prosecutrix. In paras 8 and 21 it was held as follows:
"8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances....
***
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
34. In the case of Vijay Vs. State of M.P. : (2010) 8 SCC 191 the Apex Court referred to its decisions in the cases of State of Maharasthra Vs. Chandraprakash Kewalchand Jain : (1990) 1 SCC 550 and State of Punjab Vs. Gurmit Singh : (1996) 2 SCC 384 and also few other decisions and in para 14 observed as follows:
"14. 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."
35. Further in the case of State of UP Vs. Chhotel Lal : (2011) 2 SCC 550 the Apex Court has postulated the approach to be adopted by Courts in evaluating the testimony of victim of rape. In para 26 it has been held as follows:
"26. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by allegingfalsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of women's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge."
36. As such the examination of a number of witnesses in a case is not important than the quality of witnesses. From the perusal of the evidence of the victim ''X', it is clear that her stand with regards to rape being committed on her is specific and consistent. The contradiction as has been argued drawing the attention to the statement under Section 164 Cr.P.C. and the statement in court of victim ''X' is a minor contradiction and does not in any manner would go to show that no such incident had taken place. In both the statements, the case was specific of rape being committed upon her. The doctor who examined the victim and gave the supplementary report being Dr. Rashmi Mehta, P.W.7 has in the supplementary report placing her observations on the radiological examination opined the age of the victim between 16-17 years and even in her cross-examination has specifically stated that her age at the time of incident was below 18 years and cannot be above 18 years at all. Thus the victim was a minor at the time of the incident. The accused although in his statement under Section 313 Cr.P.C. has stated that he is issueless and the first informant Dheer Singh has an eye on his property and want to grab his property and as such he has falsely implicated him but there is nothing on record to show as to what was the property owned by him and also the fact as to who all are his co-laterals and other persons and whether the said property was exclusively under his title or not. The version of a Panchayat being held is uncorroborated. The victim denies of any such Panchayat being held. There is no evidence led by the accused-appellant to corroborate the said fact.
37. Looking to the facts and circumstances of the case, it is evident that the prosecution has succeeded to prove its case beyond reasonable doubt against the accused-appellant. The present appeal is thus dismissed. The judgment and order of the trial court is hereby affirmed.
38. As per the office report dated 23.09.2014, a report dated 13.08.2014 has been received from the C.J.M., Saharanpur which is in compliance of an order dated 2.8.2014 passed by a coordinate Bench of this Court stating therein that the accused-appellant has completed his sentence of 10 years and has been released on 20.10.2012. He has also deposited a fine of Rs.3,000/-.
39. In these circumstances, if the accused-appellant has served out the entire sentence as awarded by the trial court and has deposited the fine as aforesaid, he need not be taken into custody.
40. The office is directed to send the certified copy of this judgment along with the trial court records to the trial court concerned for necessary information and follow-up action.
41. Office is directed to pay a sum of Rs.8,000/- for assistance of the Court to learned Amicus Curiae within two months from today.
42. The trial court shall communicate this judgement to the accused-appellant within a period of one week from the date of receipt of the same.
(Samit Gopal, J.) Order Date :- 15.11.2022.
Gaurav