Allahabad High Court
Aslam And Anr. vs State Of U.P. on 17 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 30.11.2022 Delivered on 17.01.2023 Court No. - 82 Case :- CRIMINAL APPEAL No. - 6929 of 2017 Appellant :- Aslam And Anr. Respondent :- State of U.P. Counsel for Appellant :- V.P. Singh Kashyap, Durvesh Kumar, Manish Kumar Kashyap, Sanjay Singh Counsel for Respondent :- G.A. Hon'ble Mayank Kumar Jain,J.
1. Challenge in this appeal is to the judgment and order dated 26.10.2017 passed by the learned Additional Sessions Judge/ Fast Track Court No. 1, Rampur in Sessions Trial No. 533 of 2014 arising out of Case Crime No. 187-C of 2014, under section 452, 366, 376-D, 314 IPC, police station Patwai, district Rampur whereby the accused-appellant no. 1 Aslam had been convicted and sentenced to three years rigorous imprisonment and a fine of Rs. 2000/- under section 452 IPC, five years rigorous imprisonment and a fine of Rs. 5000/- under section 366 IPC, ten years rigorous imprisonment and a fine of Rs. 5000/- under section 313 IPC and seven years rigorous imprisonment and a fine of Rs. 5000/- under section 376 IPC with default stipulation. The accused-appellant No. 2 Rafiq had been convicted and sentenced to three years rigorous imprisonment and a fine of Rs. 2000/- under section 452 IPC, five years rigorous imprisonment and a fine of Rs. 5000/- under section 366 IPC, ten years rigorous imprisonment and a fine of Rs. 5000/- under section 313 IPC with default stipulation. It was also directed that out of the fine amount so deposited by the accused-appellants, half of the amount shall be given to the victim after due verification. All the sentences were directed to be run concurrently.
2. Facts of the prosecution case are that the victim, Ms. ''X', moved an application under section 156(3) Cr.P.C. before the court concerned mentioning therein that earlier on 09.04.2014 Aslam, her neighbour along with Hanif and Kalua enticed her and took her away. Regarding this incident, victim's mother lodged a case Crime No. 120 of 2014, under sections 363, 366 IPC. The accused Aslam made physical relationship with the victim on the pretext of getting married to her. Thereafter, the victim became pregnant for three months. The accused Aslam after pressurizing the victim and her mother got the victim's statement recorded under section 164 Cr.P.C. in his favour. On 05.06.2014, accused Rafiq, who is the brother-in-law of Aslam came to the house of the victim and asked her to accompany him to Milak Tiraha on the pretext that her marriage would be solemnized with Aslam at Milak. Believing this information, she accompanied Rafiq. On their way, Aslam also joined them and both of them took the victim instead to a private hospital and got her pregnancy terminated. Under the influence of the injection, pregnancy of the victim was aborted. Thereafter, both of the accused dropped the victim at her house. When the mother of the victim returned home, the victim narrated the incident to her. Her mother made a complaint to victim as to why the pregnancy of her daughter was terminated by him and that she would lodge a report against him to the police. On this, Aslam and Rafiq assured her that Aslam would marry the victim. On the night of 12.06.2014 at around 10.00 p.m., Aslam and Rafiq jumped the wall and came inside the house of the victim and abducted her showing ''Tamancha'. Both of them committed her rape. On raising an alarm, witnesses Islam, Ramzani, and other persons came there and witnessed the incident. The victim on same night went to the police station to lodge the first information report, but it was not registered, nor she was medically examined. Thereafter, she moved an application to S.P. Rampur on 13.06.2014, but no action was taken in the matter. Thereafter an application was moved under section 156(3)Cr.P.C.before the Court. On the basis of the orders of the Court passed on the aforesaid application, the first information report as Case Crime No. 187-C of 2014, under sections 452, 366, 376-D and 314 IPC was registered. The investigation was set to motion and the investigation was entrusted to Sub Inspector B.S. Bakshish.
3. The Investigating Officer after completing the preliminary formalities recorded the evidence of the witnesses and the statement of the victim was recorded under section 161 Cr.P.C. She was medically examined. The site plan of the place of occurrence was prepared and after the conclusion of the investigation, a charge sheet came to be filed against Appellants/accused under sections 452, 366, 376-D and 314 IPC.
4. After the committal of the case, it was registered as Sessions Trial No. 533 of 2014. Charges were framed against accused Aslam and Rafiq under sections 452, 366, 376-D and 314 IPC. The appellants denied the charges and claimed to be tried.
5. In order to prove its case, the prosecution produced PW-1, the victim, PW-2 Smt. Zaitoon (mother of the victim), PW-3 Islam and PW-4 Ramzani, (the eye witnesses, named in the FIR), PW-5 Dr. Amita Sharma and PW-6 Sub Inspector Mukesh Singh (the second Investigating Officer).
6. After the close of the prosecution evidence, statements of the accused were recorded under section 313 Cr.P.C., in which they denied the occurrence and their involvement in the crime. They further stated that witnesses have deposed falsely against them and they are innocent and they were implicated due to village enmity.
7. No evidence was produced on behalf of the accused appellants in their defence.
8. The learned lower court after vetting the evidence and hearing the counsel for the parties, convicted and sentenced the accused as mentioned above.
9. Feeling aggrieved the appellants have preferred the present criminal appeal.
10. I have heard Shri Durvesh Kumar, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the record. I have re-appriciated the entire evidence available on record.
10. It is submitted by the learned counsel for the appellants that the trial court did not appreciate the evidence available on record in a rightful manner. The victim was the consenting party with the accused-appellant Aslam. No place has been mentioned either in the first information report or in the statement of the victim and her mother as to where or in which hospital the abortion of the victim was carried out. No medical evidence is available on record to corroborate the fact that the victim was having a pregnancy of three months and it was terminated by the appellants under the impression of intoxication. It is also submitted that before the incident, the first information report was lodged against two other persons by the mother of the victim, and the case was withdrawn by the victim since she was the consenting party with the appellant Aslam. It is further submitted that the trial court arrived at the rightful conclusion that the accused-appellant Rafiq did not rape the victim. So far as the involvement of the appellant Aslam is concerned, the victim had herself admitted in her evidence that both of them were in love with each other and several times she went with the appellant Aslam, therefore the evidence of the victim belied the prosecution version about the allegation that the appellant Aslam raped the victim. It is further submitted that the occurrence dated 12.06.2014 is also not believable for the reason that on one hand, the victim alleged that the appellants aborted her foetus on 05.06.2014 while on 12.06.2014 i.e. after one week, she was raped by the appellants. The appellant Rafiq does not live with the appellant Aslam, therefore he has been falsely implicated merely due to him being the brother-in-law of Aslam. Since the prosecutrix is a consenting party, no offence is made out under sections 366 and 376 IPC. The medical report does not corroborate the version of the prosecution about rape with the victim. Likewise, there is no evidence available on record which may indicate that accused appellants forcibly caused the miscarriage of the victim. The alleged witnesses Islam and Ramzani are not eye-witnesses of the incident since on perusal of their evidence, it reflects that the incident was narrated to them by the victim, therefore their evidence cannot be relied upon. It is further added that there are material contradictions in the evidence of prosecutrix and her mother against the prosecution story therefore their evidence can not be relied upon. The appeal is liable to be allowed and appellants deserves to be acquitted.
11. Per contra, the learned Additional Government Advocate argued that since the medical examination of the victim took place 1-1/2 months after the alleged incident, therefore, there was no possibility of any kind of observation with regard to pregnancy or its termination. The witnesses have corroborated the prosecution version. The appellant Aslam took away the victim with him and induced her that he will marry her and made physical relations, therefore, it cannot be said that the victim was a consenting party. On raising an alarm, independent witnesses reached the spot and they corroborated the fact committed by the appellants. The victim had also given her statement before the doctor about the role of the appellants in the commission of the crime.
13. PW-1, the victim in her examination-in-chief stated that she knew accused appellants Aslam and Rafiq. Aslam is her neighbour and Rafiq is his brother-in-law of Aslam and she and Aslam were in love with each other. Aslam used to say that he will perform nikah with her and on this promise he made a physical relationship with her, and she became pregnant for three months. On 12.06.2014 when she was sleeping in her house, Aslam and Rafiq entered her house after jumping through the wall and took her to the house of Aslam pointing the pistol at her. They committed rape repeatedly. On raising alarm, Islam and Ramzani came there and on seeing them, Aslam ran away from the place of occurrence. The victim has proved the application moved by her as Exhibit Ka-1 and affidavit given by her as Exhibit Ka-2 and the statement recorded under section 164 Cr.P.C. as Exhibit Ka-3.
14. PW-2 Smt. Zaitoon, who is the mother of the victim stated in her examination-in-chief that on the date of occurrence at about 10.00 p.m. Aslam and Rafiq entered her house and pointing a pistol, they took away her daughter and committed rape upon her. Ramzani and Islam and other persons came there and rescued her daughter. The report was not registered by the police.
15. PW-3 Islam Nabi has stated in his examination-in-chief that he knows the victim, who is his neighbour. He also knows Aslam and Rafiq. On 12.06.2014 at 10.00 p.m. when he was at his house, he heard the noise from the house of Nabi Khan. He along with Ramzani and other persons reached there and saw that the victim was in the house of Aslam in a naked position. He saw the incident in the light of Dibia. The victim narrated the whole story that Aslam and Rafiq committed rape upon her.
16. PW-4, Ramzani stated that on the date of occurrence at around 10.00 p.m. he heard the noise and reached the house of Mukim, the father of Aslam, and found that the victim was crying. They saw the incident in the light of a Lamp. No other person was present there with the victim. On asking, the victim narrated that Aslam and Rafiq committed rape upon her and took her at the spot on the point of a pistol.
17. PW-5 Dr. Amita Sharma stated in her examination-in-chief that she medically examined the victim. As per the medical examination report, the victim was over eighteen years. No positive evidence about sexual assault was present. No spermatozoa was seen in supplied smear slide.
18. PW-6 Sub-Inspector Mukesh Singh, the second Investigating Officer of the case, stated that on the basis of evidence collected during the investigation, he submitted the charge sheet under sections 452, 363, 376-D and 314 IPC against the appellants Rafiq and Aslam. The charge sheet is proved by him as Exhibit Ka-6.b This witness proved the document exhibited by the previous Investigating Officer S.I. B.S. Bakshish, such as the site plan as Exhibit Ka-7, the statement of witnesses recorded by the earlier Investigating Officer and the statement of the victim recorded under section 164 Cr.P.C. The chik report has been proved as Exhibit Ka-8 and its entry in the Rapat 33, at 7.35 p.m. by Constable Poonam Rani as Exhibit Ka-9.
19. As per the prosecution version in the present case, the prosecution has mentioned two occurrences in the first information report. The first incident is alleged to have taken place on 05.06.2014 wherein it is alleged that the appellant accused Rafiq on the pretext of marriage with the other appellant-accused Aslam lured the victim and took her away on his motorcycle. On way to Milak accused-appellant Aslam met them and both of them under the impression of intoxication caused forceful abortion by injecting drugs. The second incident is alleged to have taken place on 12.06.2014 wherein it is alleged that on that day around 10:00 pm appellants Aslam and Rafiq jumped over the wall and came to the house of the victim, abducted her at the gunpoint against her will, and both of them raped her at gunpoint one after the other.
20. Under the aforesaid set of facts, it is required to be determined as to whether on 05.06.2014 accused appellants caused the miscarriage of the victim and whether on 12.06.2014 accused-appellant trespassed the house of the victim and abducted her to the house of Aslam and both of the appellants raped her.
21. Section 313 IPC reads thus:
"313. Causing miscarriage without woman's consent.--Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 348[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
22. So far as the incident dated 05.06.2014 is concerned, PW-1 victim, in her examination in chief has stated that on 05.06.2014 accused Rafiq came to her and told her that he will ensure the marriage of the victim with the accused-appellant Aslam. She accompanied him to Milak. She was taken to a private hospital forcefully and her pregnancy of three months was terminated. PW-1 victim in her cross-examination stated that accused Rafiq came to her house on 12th, 2014 none was present at that time with her. She did not know the time when Rafiq came to her. She did not know when she started from her house. She did not know at what time she reached Milak. She did not know how many villages exist up to Milak. She did not inform her mother or any relative. She did not inform her mother about the pregnancy at the time of occurrence. At the time of occurrence she was having mobile with her but she did not make a call to her mother or any of her relatives. She never went to Milak before this incident. She did not know at what time she reached the crossing of Milak. She went with the accused Rafiq on her sweet will. She even did not know about the time of the journey from Milak to the destination. She did not know in which direction she was taken from the crossing while she was fully conscious. She did not know the name of the private hospital where she was taken. She did not know whether patients were there or not or how many persons were there. She did not know the number of injections administered to her. She did not know how long she remained unconscious and what time she reached her home. Even she did not know when she became conscious and anyone came to see her.
23. The entire evidence adduced by PW-1 Victim with regard to the occurrence alleged to have happened on 05.06.2014 is full of contradictions and is not reliable because firstly no documentary evidence is available on record concerning the alleged miscarriage. The victim in her statement expressed ignorance relating to material facts of the incident qua the name of the private hospital, the name of the doctor, the time and place of the incident of causing miscarriage, the distance from her house to the hospital, the duration of her unconsciousness, the treatment given to her prior to the alleged miscarriage or treatment received after the miscarriage, the time of reaching back to her home, even though she admitted that she had a mobile phone at the time of the incident when she left her house but she did not make a call to her mother or any relative. The prosecutrix stated in her evidence that she did not inform her mother about her pregnancy but contrary to this, PW-2 Smt. Jaitoon , the mother of the prosecutrix, stated in her evidence that she was informed by her daughter that she was pregnant for three months. This conduct of the witness indicates that no such incident took place since on the material facts of the incident the witness did not depose in the Court cogently. The ignorance expressed by the victim renders her evidence to be unreliable relating to this incident.
24. PW-2 Smt. Jaitoon the mother of the victim stated about the allegation of causing the miscarriage of the victim on the basis of the information given to her by the victim only.
25. On the basis of appreciation of the above evidence available on record, I am of the opinion that the prosecution has not proved with the cogent evidence either oral or documentary, that on 05.06.2014 the appellants caused a forceful miscarriage of the victim.
(i) Now the second occurrence dated 12.06.2014 is to be examined.
Sections 452, 366 and 376-D IPC provides that :-
"452. House-trespass after preparation for hurt, assault or wrongful restraint.--Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 367[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid"
376-D. Gang rape.--Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim."
26. So far the alleged incident dated 12.06.2014 is concerned, PW-1 victim admitted in her examination in chief that she was in love with Aslam and Aslam was also in love with her. The victim in her evidence stated that she was having good relations and well acquaintance with the accused Aslam. She frequently visited the house of the accused Aslam and had relations with him and Aslam also used to visit her house frequently since one year prior to the incident but she never told this to her mother. She used to go to the forest with the accused Aslam without informing her mother. She used to go with the accused Aslam to the field to cut the crop of wheat, rice, and menthol. Aslam used to do labour work with her.
27. PW-2 Smt. Jaitoon also admitted the fact that the appellant Aslam was well acquainted with them and stated that her daughter was acquainted with the appellant Aslam for the last six months and she used to go with Aslam. Acquaintance with the accused Aslam indicates that there was no occasion for the appellants to commit house-trespass and abduction of the victim on 12.06.2014, when both the witnesses admitted that Aslam, the victim and the mother of the victim, all were well acquainted with each other.
28. PW-1 the victim stated in her evidence that on the night of 12.06.2014, she was sleeping in her house alone. The appellants jumped over the wall and came to her house and at gunpoint they abducted her to the house of Aslam and both of them raped her at gunpoint. PW-2 Smt. Jaitoon in her cross-examination stated that appellant Rafiq and Aslam "called' her daughter and took her away.
29. This is a very material contradiction in the evidence of prosecutrix and her mother with regard to the manner the prosecutrix was taken away. The case of the prosecution is that the appellants/accused abducted the proseuctrix at gunpoint after jumping over the wall while the mother of the prosecutrix stated that the appellants accused called her daughter and took her away. This contradiction makes the story of prosecution as doubtful.
30. PW-1 the victim in her statement stated that there was only one room in her house. She along with her mother and younger brother Jishan were living together in that room. PW-2 Jaitoon Jahan, the mother of the prosecutrix, stated in her evidence that on the night of the incident she was sleeping with her children. There were three cots. On one cot she was sleeping with his son, on second cot her another son and on the third cot her daughter were sleeping at a distance of 4 to 5 meters. However, on the contrary, the victim stated that on 12.06.2014 her mother along with her brother went to attend a marriage.
31. This also is very material contradiction. If the mother and siblings of the victim were sleeping next to the victim on that night in their house, therefore, the story of the prosecution that the appellants/accused jumped over the wall and abducted the victim at gunpoint and took her away creates a serious doubt about the version of the prosecution and bellies the theory of abduction. If the mother and the siblings of the prosecutrix were sleeping in the same room where the prosecutrix was also sleeping therefore, it appears to be doubtful that the appellants/accused abducted the prosecutrix at gunpoint and took her away and no alarm was raised by any member of the family.
32. PW-1 the victim in her cross-examination stated that when Rafiq and Aslam jumped the wall, Rafiq shut her mouth so she could not shout. This fact is first time narrated by her during her cross-examination in the Court. Neither in the first information report nor in her examination in chief she stated that Rafiq shut her mouth and she could not shout. Likewise, the fact that the appellants took off her clothes is narrated by the victim during her cross-examination for the first time. Further, the victim expressed ignorance about the duration of intercourse committed by the appellants, while she stated that she was fully conscious at that time. The victim narrated that she raised an alarm but no one rescued her. This fact has been narrated first time by her in the court during her deposition.
33. PW-1 the victim stated that she stayed around one hour at the house of appellant/accused Aslam on the night of incident. Her clothes were not torn but they were thrown away. No blood oozed out. Her clothes were not stained with blood. She did not sustain any scratch over her body. She was conscious. PW-5 Dr. Amita Sharma in her evidence also stated that no external injury was found at the time of medical examination of the prosecutrix. Hymen was upset and old healed. No sign of sexual assault were noted by her.
34. The medical report also does not corroborate the factum of rape with the prosecutrix. Moreover, the clothes which prosecutrix was wearing at the time of incident were not given to Investigating Officer and no FSL report was available on the record which may indicate that the prosecutrix was gang raped by the appellants/accused. The aforesaid situation also creates doubt about the theory of gang rape as stated by the prosecution.
35. PW-2 Jaitoon mother of the victim stated in her examination in chief that his daughter told her that the appellants raped her and on raising the alarm, witnesses Ramzani, Islam and other persons came there but during her cross examination she stated that witnesses Ramzani and Islam told her about the incident after 2-3 hours. She further stated that on the next day of the incident she along with her daughter, Islam and Ramzani went to police station but the prosecutrix stated in her evidene that she went to the police station with her mother and none was with them. This is also a contradiction between the statement of prosecutrix and her mother.
36. PW-1 victim stated in her evidence that she used to go to the forest with Aslam without informing her mother while PW-2 Smt. Jaitoon denied about the statement and stated that her daughter used to go with Aslam after informing her.
37. PW-3 Islam Nabi and PW-4 Ramzani are named as eye witnesses of the incident dated 12.06.2014.
38. PW-3 Islam Nabi, in his examination-in-chief, stated that he reached along with Ramzani at the place of occurrence and he found the victim in a naked condition. Thereafter, he was told about the incident by the prosecutrix. In his cross examination he stated that prior to this incident, the prosecutrix went with the appellant-accused Aslam and he did not know as to whether any case was lodged or not. He reached the spot after hearing sound. He did not see any of the incidents. Investigating Officer never recorded his statement and his statement has been recorded first time in the Court.
39. On the basis of the statement of PW-3 Islam Nabi, it transpires that the incident was narrated to him by the prosecutrix only and he did not see any incident by himself and moreover, he was not interrogated by the Investigating Officer during investigation, therefore, the evidence of PW-3 does not corroborate the prosecution version.
40. PW-4 Ramzani appears to be a chance witness since PW-1 the victim has stated in her evidence that this witness is the resident of village Ajeetpur and Ajeetpur is far away from her place. This witness has also stated himself to be the resident of Ajeetpur. He went to the village of the victim to see some land but he did not remember the date and month of his visit. He was staying at the house of Islam. It is important to mention here that PW-3 Islam did not mention anything about Ramzani staying with him on the date of occurrence.
41. Further, this witness stated that he reached the house of Aslam and saw that the victim was crying there and he was informed about the incident by the victim only, therefore, this witness has deposed on the basis of hearsay evidence and he is not the witness of any incident. He has also stated that when he reached the place of occurrence, the accused were not present there. He did not know as to whether it was dark or moon light night. When they reached the place of occurrence the accused had gone away. Other persons came there but he did not know their names. He did not go anywhere else but returned to his house. He was never inquired about this case by anyone. He only heard about the miscarriage of the victim. He stated that the height of the wall of the house of the victim is about 7 feet.
42. The evidence of PW-4 Ramzani does not corroborate the prosecution version because he appears to be a chance witness and he did not see any of the incidents himself and further more, according to him he was not inquired by the Investigating Officer during the investigation, therefore, the evidence of PW-4 is not reliable.
43. Another important aspect of this case is the time of the incident, which is alleged to have taken place at 10.00 p.m. No source of light has been shown by the Investigating Officer in the site plan exhibit Ka-7. PW-1 the victim, first time in her deposition before the Court stated that on 12.06.2014 at the time of incident a kerosene lamp was lit in his house but she did not tell anything about it to the Investigating Officer. Pertinent to note that, PW-2 Jaitoon Jahan, the mother of the prosecutrix did not say anything about the source of light available at the time of incident dated 12.06.2014 during her entire deposition. PW-3 Islam Nabi stated that the kerosene lamp was lit in the house of the prosecutrix. The existence of kerosene lamp at the time of incident is not mentioned in the first information report, not in the examination in chief of prosecution witnesses of fact, and not narrated to the Investigating Officer also. Even in her statement under Section 164 Cr.P.C. exhibit Ka-3, it is not referred. No such kerosene lamp was taken into possession by the Investigating Officer, therefore, in view of the above, the source of light at the time of incident is doubtful.
44. It shall not be out of place to mention here that the statement of the victim under Section 164 Cr.P.C. was recorded which is proved by her as Exhibit Ka-3. In this statement the prosecutrix did not say even a word about the incident dated 12.06.2014.
45. The Hon'ble Apex Court in Rai Sandeep Vs. State, (NCT of Delhi) (2012) 8 SCC 21 has eleborated the meaning of ''Sterling Witness' as:-
"15. In our considered opinion, the ''sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be 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."
46. On importance given to the testimony of the prosecutrix in rape cases, Hon'ble Supreme Court in Hemraj Vs. State of Haryana, 2014 (2) SCC 395 reminded the Court of their duties in carefully scrutinizing the same in following words:-
"6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. [See: State of Maharashtra v. Chandraprakash Kewalchand Jain[1]]. Such weight is given to the prosecutrix's evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it."
47. In Sadashiv Ramrao Hadbe Vs. State of Maharashtra, (2006) 10 SCC 92 the Hon'ble Apex Court observed that:-
"8. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
48. In view of the above observations made by the Hon'ble Apex Court, the evidence of PW-1, the victim does not inspire confidence since it is full of material contradictions and ignorance relating to material facts with regard to the incident of forceful miscarriage caused by the appellants/accused as well the incident of abduction and gang rape alleged to have happened on 12.06.2014. PW-1 the victim does not appear to be a sterling witness since her evidence conclusively does not corroborate the story of the prosecution.
49. So far as the material contradictions and improvement made by the witness is concerned, the Hon'ble Supreme Court in Krishnegowda v. State of Karnataka, (2017) 13 SCC 98 observed that:-
"Material contradiction in the testimony of prosecution witness creates serious doubt in the mind of the court about the truthfulness of the witnesses and hence it cannot be held that the prosecution has proved the guilt beyond reasonable doubt and the accused are entitled for benefit of doubt in such case. The Hon'ble Court held:-
"...26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt.
27. Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the court, but if these contradictions create such serious doubt in the mind of the court about the truthfulness of the witnesses and it appears to the court that there is clear improvement, then it is not safe to rely on such evidence.
The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt."
50. On the basis of the above discussion and appreciation of documentary and oral evidence available on record, it is concluded that the prosecution has failed to bring home the charge u/s 452, 366, 376D and 313 IPC against the appellants. Material contradictions in the evidence of the witnesses of the fact render the theory of the prosecution to be doubtful. The witnesses have made material improvements and embellishments in their testimonies. The evidence of Prosecutrix examined as PW1, and other witnesses PW-2 Smt. Jaitoon, PW-3 Islam Nabi, and PW-4 Ramzani on reading as a whole do not inspire confidence and do not have any ring of truth. Appreciation of oral evidence of witnesses of fact raises doubt about the commission of the crime by the appellants. The Learned Trial Court has not appreciated the evidence available on record in a rightful manner and hence wrongly convicted the appellants.
51. In view of the above, the appellants are entitled to the benefit of the doubt since the prosecution has failed to prove the charges against the appellants beyond reasonable doubt. Thus, the appeal is liable to be allowed and the appellants deserve to be acquitted.
ORDER
52. The criminal appeal is accordingly allowed. The Judgement of conviction and order of sentence passed by the learned trial court dated 26.10.2017 passed in S.T. No. 533 of 2014 (State Vs. Aslam & Anr.) is hereby set aside. Accordingly, the appeallants Aslam and Rafiq are acquitted from the charges under sections 452, 366, 376-D and 313 IPC.
53. The Appellant Aslam is in jail. He be released forthwith if his detention is not required in any other case.
54. Appellant Rafiq is on bail. He need not surrender. His personal bonds is cancelled and sureties are discharged from their liability.
55. The trial court shall ensure that the appellants shall furnish bonds as required under Section 437A Cr.P.C. before the trial court within two weeks from the date of communication of this order to the trial court.
56. Let the certified copy of this order be transmitted to the trial court for compliance.
57. The lower court record be also transmitted to the trial court.
Order Date :- 17.01.2023 Sazia