Allahabad High Court
Zulfiqar @ Zillu vs State Of U.P. on 10 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1517
Bench: Sunita Agarwal, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Reserved on : 21.01.2020 Delivered on : 10.07.2020 Court No. - 34 Case :- CRIMINAL APPEAL No. - 4812 of 2012 Appellant :- Zulfiqar @ Zillu Respondent :- State of U.P. Counsel for Appellant :- Rajeev Sisodia, Manoj Tripathi, Pawan Singh Pundir, Shashank Kumar, Vinod Tripathi, Vishnu Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Dinesh Pathak,J.
(Per Hon'ble Dinesh Pathak, J.)
1. Heard Sri Pawan Singh Pundir, learned counsel for the appellant and Sri L. D. Rajbhar, Advocate assisted by Sri Prem Shanker Mishra, learned Additional Government Advocate for the State-respondent.
2. The instant criminal appeal has been preferred by appellant Zulfiqar alias Zillu against the judgment and order dated 03.11.2012 passed by the Additional Sessions Judge (Court No.2), Bijnor in Sessions Trial No.655 of 2011 (Zulfiqar @ Zillu vs. State of U.P.), convicting him under Sections 376 (2) G and 506 IPC. He has been sentenced under Section 376(2) G IPC to undergo life imprisonment along with fine to the tune of Rs.10,000/- and in default thereof, he shall undergo additional imprisonment for six month. He was also sentenced under Section 506 IPC to undergo 5 years rigorous imprisonment (in short 'R.I.') with fine amounting Rs.500/- and in default thereof, he shall undergo additional imprisonment for two months.
3. The allegations in the First Information Report (hereinafter referred to as 'FIR') are that the prosecutrix, (PW-2) had been continuously subjected to sexual assault under threat to her life and coercion for the last one month on blackmailing by the accused-appellant Zulfiqar @ Zillu, who had taken photographs of prosecutrix/victim in his mobile and threatened her to distribute her pictures amongst the villagers, in case, she leaks anything about the incident to anyone. On 18.05.2011 at about 11.00 A.M., when the prosecutrix aged about 16 years went to collect fodder for the cattle from the forest, accused Zulfiqar @ Zillu along with his friend Faizaan caught hold of her and sexually assaulted her by taking turn one by one. She was threatened by the accused to not to disclose the incident to anyone otherwise they will make her photographs public among the villagers and she would be killed. On hearing her screams, one Atiq-ur-Rehman s/o Hajib-ur-Rehman and Gaffar son of Mohd. Hanif reached at the place of incident but by that time, accused Zulfiqar @ Zillu and Faizaan had fled away from the spot. After returning from the forest i.e. place of incident, the prosecutrix/victim narrated the incident to her mother Smt. Naseema (PW-1), who took her to Police Station-Sherkot, but her complaint was not registered. Consequently, she took her daughter to the Government Hospital, Dhampur and got her medically examined. Thereafter, she made representations dated 19.05.2011 and 21.05.2011 with respect to the incident in question to the Superintendent of Police, Bijnor, but no action was taken. Ultimately, she moved an application under Section 156 (3) Cr.P.C. and in pursuance thereof, FIR was ordered to be lodged in Police Station-Sherkot.
4. In this backdrop, FIR dated 27.06.2011 (Exhibit Ka-6) was lodged against Zulfiqar @ Zillu (appellant) and Faizaan under Sections 363, 376 G and 506 IPC, which was registered as Case Crime No.107 of 2011, Police Station-Sherkot, District-Bijnor.
5. Initially, victim/prosecutrix was medically examined on 18.05.2011 at about 4.00 P.M. at the Primary Health Centre, Dhampur, Bijnor (hereinafter referred to as "PHC") by Dr. Pramod Kumar Gupta (PW-4). Six wounds have been mentioned in the Medical Report dated 18.05.2011 (Exhibit Ka-5) signed by Dr. Gupta (PW-4), which are being noted herein below :
(i) Abraded contusion red in colour on left side 5 cm outer to left angle of mouth.
(ii) Abraded contusion red in colour front of left side chest. Just above left nipple.
(iii) Abraded contusion, red in colour, 4.5 cm x 3 cm on front of right side chest, 3 cm outer to left nipple at about 9 O' Clock position.
(iv) Abrasion red in colour 6 cm x 4 cm on back of left side chest on scapular region.
(v) Abrasion red in colour 6 cm x 4.5 cm on back of right side chest on scapular region.
(vi) Contusion red in colour 4.5 cm x 3 cm on front of right forearm just above right wrist joint.
6. After registration of the FIR, prosecutrix/victim was again medically examined on 30.06.2011 at 4.00 P.M. by Dr. Saroj Arora (PW-3), who was a Medical Officer at the District Women Hospital, Bijnor. Dr. Arora (PW-3) had submitted Medical Report dated 30.06.2011 (Exhibit Ka-3) signed by her and mentioned following details in it :
On external examination :
No injury seen on the body. Height : 150 cm, Weight :37 kg, Teeth :14/21, Breasts developed.
Examination of private parts :
No injury seen on the private parts. Hymen old torn. Vagina admits two fingers easily. Vaginal smear taken for examination of sperms and sent to Pathology, District Hospital, Bijnor. Regarding age advised X-ray. Right elbow joint, Right knee joint and right wrist joint.
Supplementary report pending till pathology 2 X-ray reports.
7. In pursuance of advice given by Dr. Arora (PW-3), Ossification Test and Swab Test of vagina was conducted on 02.07.2011 and its supplementary report (Exhibit Ka-4) was prepared and signed by Dr. Arora (PW-3) herself with following observations :
Pathology Report- VS 72/DH/11 on dated 01.07.2011 at District Hospital, Bijnor reported by Dr. S. K. Sharma, Senior Pathologist, District Hospital, Bijnor. On examination, spermatazoa not seen.
X Ray report :
X-ray plate No.7383-7385/MLPC on dated 01.07.2011 at District Hospital, Bijnor reported by Dr. D. K. Jain, Senior Radiologist, District Hospital, Bijnor.
X-ray right elbow joint - Epiphysis around right elbow joint are fused.
X-ray right knee joint - Epiphysis around right knee joint are almost fused.
X-ray right wrist joint -Epiphysis around the right joint are not fused completely.
Opinion : Her age is around 17 years. No definite opinion regarding rape can be given.
8. In Ossification Test Report, the estimated age of victim/prosecutrix is opined to be 17 years. Santosh Kumar Tyagi (PW-7), Investigating Officer (hereinafter referred to as "I.O.") had conducted investigation of the case. He had prepared the Site Map (Exhibit Ka-8) and submitted Charge Sheet dated 10.07.2011 (Exhibit Ka-9) against accused-appellant Zulfiqar @ Zillu and Faizaan under Sections 376 (2) G and 506 IPC.
9. It is pertinent to mention here that present Sessions Trial No.655 of 2011 is conducted against appellant Zulfiqar @ Zillu whereas case of co-accused Faizaan was separated and tried as a juvenile. Therefore, present appeal arising of Sessions Trial No.655 of 2011 is concerned only with respect to accused-appellant Zulfiqar @ Zillu.
10. Vide order dated 25.08.2011, Trial Court framed charges against the accused-appellant for the offences under Sections 376 (2) G and 506 IPC.
11. In order to establish the charges levelled against accused-appellant, prosecution has examined as many as seven witnesses.
12. PW-1, Naseema, w/o Sharafat, mother of victim/prosecutrix had proved application dated 23.05.2011 filed under Section 156 (3) Cr.P.C. as Exhibit Ka-1 and affidavit filed in its support as Exhibit Ka-2. She had corroborated statement of victim/prosecutrix proving the incident in question. She clearly stated that her daughter (i.e. prosecutrix, PW-2) has told about the entire incident that she had been raped by accused persons, who had threatened her for life and to make her pictures viral all over the village if she disclosed anything about the incident. The prosecutrix also told her that she was being victimised for rape for the last one month. She had further stated that she approached concerned police station and moved an application before the concerned Police Officer, but no action was taken. She, ultimately, moved an application under Section 156 (3) Cr.P.C.
13. PW-2, prosecutrix/victim (daughter of Sharafat and Naseema), aged about 16 years, has categorically stated that she had been raped in the forest, while she went to collect fodder, by Zulfiqar @ Zillu and his friend Faizaan, who had threatened her that her photographs would be made viral all over the village, in case she discloses anything about the incident to any person. She had elaborately narrated the incident which took place on 18.05.2011 as to how she had been forcefully raped by accused-persons. She had also stated that she was mauled by accused persons as a result of which she sustained injuries. She further deposed that during incident while she screamed, Atiq-ur-Rehman and Gaffar had reached on the spot. Consequently, both accused persons fled away.
14. PW-3 Dr. Saroj Arora, Senior Consultant, District Women Hospital, Bijnor had proved Medical Report dated 30.06.2011 as Exhibit Ka-3 and Supplementary Medical Report dated 02.07.2011 with respect to the Vaginal Test and Ossification Test as Exhibit Ka-4. Dr. Arora had clearly stated that probability of commission of rape cannot be denied.
15. PW-4, Dr. Pramod Kumar Gupta had proved first Medical Report dated 18.05.2011 as Exhibit Ka-5, who had medically examined victim, at the initial stage, and mentioned six injuries over body of the victim in the report.
16. PW-5, Atiq-ur-Rehman is an independent witness of fact and he had categorically narrated the incident that while reaching on the spot, upon hearing screams of the victim/prosecutrix, he saw that Faizaan was holding her hand and Zulfiqar @ Zillu was committing rape.
17. PW-6, Vinod Kumar, Constable Clerk in Police Station-Sherkot, Bijnor had proved FIR as Exhibit Ka-6 and its entry in the General Diary as Exhibit Ka-7.
18. PW-7, Santosh Kumar Tyagi, I.O. had proved the Site Map as Exhibit Ka-8 and Charge Sheet dated 10.07.2011 as Exhibit Ka-9. He had investigated the matter and deposed the process of investigation.
19. Accused-appellant denied his involvement in the crime in question in his statement recorded under Section 313 Cr.P.C. and pleaded his innocence and claimed to be tried on merits.
20. Trial Court had found accused-appellant guilty of committing rape upon the victim and had convicted and sentenced him vide its judgment and order dated 03.11.2012 in the manner as mentioned above.
21. Learned counsel for appellant submitted that victim was a consenting party, therefore, incident which took place, cannot be treated as commission of rape. Medical report and statement of witnesses are not corroborating the statement of victim/prosecutrix (PW-2). No recovery of video or clothes had been made to prove the incident in question. He further contended that mother of victim had already admitted relationship of victim and Faizaan. Further submission is that there is contradiction between two medical report, first dated 18.05.2011, conducted at PHC, Dhampur and second report dated 30.06.2011 prepared and submitted by Dr. Saroj Arora (PW-3) a doctor in the District Women Hospital, Bijnor and in subsequent medical report, no injury was found in medical examination on body of victim/prosecutrix. Present appellant has been falsely implicated in the instant case to protect co-accused Faizaan, who is known to victim/prosecutrix.
22. Per contra, learned Additional Government Advocate appearing for the State-respondent had supported the impugned judgment and order passed by Trial Court and submitted that the statement of victim/prosecutrix, PW-2 is fully corroborated with statements of PW-1 and PW-5. Difference between two medical reports with respect to the injuries on the body of victim is possible in the present case owing to gap occurred between preparation of two reports which is indisputably of about 1 and ½ months. Victim was never a consenting party to the offence and even otherwise, her consent is of no value in the eyes of law, inasmuch as, she was less than 18 years on the date of the incident as per Medical Report (Exhibit Ka-4) submitted by Dr. Saroj Arora (PW-3) and intercourse with her, whether with or without her consent, would amount to commission of rape. The prosecution has successfully established its accusation beyond all reasonable doubts.
23. We have carefully considered the chronological events of present case, rival submissions advanced on behalf of counsel for the parties as well as evidences available on record.
24. In the matter at hands, moot question to be decided is as to whether prosecutrix is victimised for rape committed by accused-appellant or she was a consenting party to such sexual act.
25. On the date of occurrence i.e. 18.05.2011 at about 11:00 a.m. when the prosecutrix, aged about 16 years, (as mentioned in the FIR) went to the forest to collect fodder for cattle. Present appellant with his accomplice Faizaan caught hold of her in the field and forcibly sexually assaulted her against her will. During the incident while the victim raised alarm, two persons namely Atiq-ur-Rehman and Gaffar reached on spot but by that time accused persons ran away from the scene.
26. Offence of rape generally refers to non consensual sexual intercourse that is committed by applying physical force, threat of injury to body, reputation etc, or other duress. Under common law it is defined as unlawful intercourse by a man against a woman, who is not his wife, by force or threat and against her will.
27. Definition of rape is codified in Section 375 of IPC wherein rape has been defined as a certain sexual acts when committed on a victim falling under any of the seven descriptions FIRST-- Against her will; SECOND--Without her consent; THIRD-- With her consent, when her consent has been obtained under fear of death or of hurt; FOURTH--Where consent is given by the victim in wrong belief that the man is her husband; FIFTH--When consent is given when she is of unsound mind or intoxicated and unable to understand the nature of consequences of that to which she is consenting; SIXTH-- With or without her consent, when she is under eighteen years of age; SEVENTH-When she is not in a position to communicate the consent.
28. Learned counsel for appellant had emphasized his argument on the consent of victim on the ground that co-accused Faizaan was known to her and the consensual sex was conducted with the victim who was major at that time.
29. Before considering the consent of victim, her age for consent is required to be discussed. Before Act No. 13 of 2013, description no. sixthly to Section 375 IPC was mentioned as "With or without her consent, when she is under 16 years of age"; but subsequently the aforesaid section was amended via Act No. 13 of 2013 w.e.f. 03.02.2013 and the age of girl was enhanced from 16 years to 18 years. FIR version evinces that on the date of incident victim was aged about 16 years. After conducting Ossification Test in the supplementary medical report dated 02.07.2011 (Exhibit Ka-4), doctor had opined her age to be 17 years.
30. PW-1 Naseema (mother of victim) in her deposition has failed to give correct date of birth of victim and told the age of her daughter approximately 16 years. PW-2 victim, in her deposition, has also admitted her age to be 16 years. Learned counsel for the appellant has submitted that in ossification test, the concerned doctor had opined the age of victim to be 17 years and after including 2 additional years, it could be 19 years. Therefore, she was major at that time and was in a position to indulge herself in consensual sex.
31. In our opinion, inclusion of two additional years to the age determined by doctor, is not possible as a matter of course or in a routine manner. To determine the age of child being a victim or otherwise, there is no specific legal provision except the provision as embodied under the Juvenile Justice (Care and Protection of Children) Act and the Rules framed thereunder. The Hon'ble Supreme Court in the case of Jarnail Singh vs. State of Haryana reported in (2013) 3 Crimes (SC) 278 has expounded that even though the Rules framed under the Juvenile Justice Act only provides procedure to determine the age of child in conflict with law, but the statutory provision could be made the basis for determining the age, even of a child who is a victim of crime. It has been further explained that there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict of law, and a child who is victim of crime. In the aforesaid matter, a girl child was subjected to rape and in determining her age, the Hon'ble Supreme Court has thought it just and proper to apply the provisions as embodied under the Juvenile Justice Act. It is relevant to mention here that the Juvenile Justice (Care and Protection of Children) Act, 2000 is repealed and in its place new Act came into force known as the Juvenile Justice (Care and Protection of Children) Act, 2015 which has been enacted with an object to act in the interest of children in need of care and protection by not only catering to their basic needs through proper care, protection but by disposal of matters in the best interest of children. The definition of '"child in need of care and protection" includes a child who has been abused, tortured or exploited for the purpose of sexual abuseor illegal acts. The "child" as defined in the Act is a person who has not completed eighteen years of age. The procedure for determination of age of a person to provide him the protection of the Act "being a child" is by making an inquiry in accordance with the provision of Section 94 of the Act. The said inquiry, by conducting an ossification test or any other medical age determination test, in absence of birth certificate or school certificate is contemplated in the aforesaid provision (Section 94) of the Act. The ossification test is, thus, an approved method of inquiry for determination of age of a person.
32. As far as the submission of learned counsel for the appellant that 2 years be added in the estimated age of the victim and that would make her major, we may note that the Supreme Court expounded in State of U.P. vs. Chhoteylal reported in AIR 2011 SC 697, after considering the Full Bench decision of its Court in the case of State of Karnataka vs. Bantara Sudhakar @ Sudha & Others reported in (2008) 111 SCC 38, that there is no such rule for adding two additional years to the age determined by the doctor. In the said case victim was shown to be 13 years of age at the time of incident dated 19.09.1980 and doctor has opined that victim is aged about 17 years. Learned Trial Court has convicted the accused treating the girl minor under 16 years. Hon'ble High Court has given 2 years additional benefit and presumed the age of prosecutrix to be 19 years. Relevant paragraph no. 11 of the judgment is quoted below :-
"11. We find ourselves in agreement with the view of the trial court regarding the age of the prosecutrix. The High court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by PW-5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. We are supported by a 3-Judge Bench decision of this Court in State of Karnataka v. Bantara Sudhakara @ Sudha and Another, wherein this Court at page 41 of the Report stated as under :
"Additionally, merely because the doctor's evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years' age has to be added to the upper age-limit is without any foundation."
33. Be that as it may, in our opinion, description no.Sixth of Section 375 IPC is not attracted in the present facts and circumstances of the case because the prosecutrix was found to be above 16 years of age, although below 18 years of age as the incident had occurred prior to the amendment for raising the age of consent for sexual acts by a girl.
34. Now the question would be as to whether she was a consenting party in the sexual act with the accused. From the statement of prosecutrix, it has clearly emerged that she had been forcibly subjected to sexual intercourse by two accused persons without her consent. In this factual background too, question of the age of prosecutrix would pale into insignificance. In the facts and circumstances of present case, the case of consent cannot be inferred by any prudent person. Statements of witnesses and chronology of events clearly indicate towards victimization of prosecutrix under threat of blackmailing and, thereafter, subjecting her to sexual intercourse.
35. The term "consent" had not been defined in Section 375 of IPC, rather Section 90 of IPC denotes that which incidents are not to be treated as consent of victim. Inference with respect to consent could only be drawn on the basis of evidences and attendant circumstances of the instant case. In the case at hands, the evidences very clearly establish that on the date of incident i.e. 18.05.2011, the prosecutrix had been grabbed by accused persons and forcefully subjected to sexual intercourse. Aforesaid incident was witnessed by one Atiq-ur-Rehman (PW-5), who is an independent witness and had corroborated the version of the prosecutrix regarding date, time and the manner in which the incident took place.
36. In the matter of Kaini Rajan vs. State of Kerala reported in (2003) 9 SCC 113, Hon'ble Supreme Court has expounded definition of rape and consent in paragraph 12, which is being quoted below :-
"12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
37. In a recent decision in the case of Pramod Suryabhan Pawar vs State of Maharashtra and another, reported in 2019 (9) SCC 608 in paragraph 12, Hon'ble Supreme court has concised the concept of consent. Paragraphs 12 is being reproduced below :-
12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction under Section 482, this Court observed:
"15. ... An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of."
This understanding was also emphasised in the decision of this Court in Kaini Rajan v State of Kerala, (2013) 9 SCC 113:
"12. ... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and asset. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
38. Hon'ble Supreme Court has further held in paragraph 18 of the aforesaid judgment as under :
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
39. Learned counsel for appellant has relied upon Uday vs. State of Karnataka reported in (2003) 4 SCC 46 and Naushad vs. State of U.P. reported in 2007 (5) ADJ 60 (DB) to define the term "consent" and tried to defend the offence under the garb of consensual sex, but aforesaid cited cases are of no help to the accused in defending his case.
40. In the case of Uday (Supra), the Hon'ble Supreme Court had observed that there is no straight jacket formula for determining whether consent given by the prosecutrix for sexual intercourse is voluntary or whether it is given under misconception of fact. In the ultimate analysis the test laid down by the Courts provided at best guidance to the judicial mind while considering the question of consent but the Court must, in each case, consider the evidence and the surrounding circumstances, before arriving at the conclusion because each case has its own peculiar facts which may have bearing on the question whether the consent was voluntary or was given under the misconception of fact. Hon'ble Apex Court further observed that Court must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
41. Moreover, question of consent is the defence taken by the accused in the instant case and it was incumbent upon him to place adequate material on record to show that the consent was given by the prosecutrix. At this juncture, it is significant to note that during cross-examination of the prosecution witnesses and recording of statement of the accused-appellant under Section 313 Cr.P.C., plea of consent was neither taken nor suggested by the accused-appellant. In fact, in the statement under Section 313 Cr.P.C., the accused had taken the plea of complete denial and false implication. Nothing emerged in the cross-examinations of PW-1 and PW-2 as well as in the testimony of PW-5 (an independent witness), about the consent of victim at the time of incident or prior to the incident. Vague denial made by the accused in their statement under Section 313 Cr.P.C. cannot be inferred for the consent of the victim who had been threatened and subjected to sexual intercourse against her will.
42. Further, to prove the offence of rape committed by the accused, testimony of the prosecutrix alone could be made basis for conviction of the accused persons unless there are some compelling reasons for seeking corroboration. In several decisions, Hon'ble Supreme Court has laid emphasis on the testimony of prosecutrix unless something infers adverse to the conclusion of conviction. In the matter of State of Punjab vs. Gurmit Singh and others, reported in (1996) 2 SCC 384, wherein the prosecutrix aged about 16 years was abducted and raped, Hon'ble Supreme Court expounded importance of testimony of the victim in paragraph 8 of the judgment. The relevant portion of paragraph 8 is being reproduced below :
"8. ............................The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990 (1) SCC 550) Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words:
"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 prosecurtix 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 of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
43. Further in the matter of Mohd. Ali alias Guddu vs. State of U.P. reported in (2015) 7 SCC 272, wherein 14 years aged girl was abducted from outside of her house and raped by the accused persons, Hon'ble Supreme Court had given importance to deposition of the prosecutrix. Paragraph 30 of said judgment is being reproduced below :-
"30. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval to the same."
44. In the matter of State of Rajasthan vs. Biram Lal reported in (2005)10 SCC 714, Hon'ble Supreme Court had expounded that the testimony of prosecutrix is not required to be corroborated by independent evidence on record, in case quality of evidence of the prosecutrix is truthful. Paragraph 15 of aforesaid judgment is being reproduced below :-
"15. We, therefore, find it difficult to sustain the order of acquittal passed by the High Court in respect of the offence under Section 376 IPC. It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction. In the instant case, we find that the evidence of the prosecutrix is worthy of credit and implicity reliable. The other evidence adduced by the prosecution, in fact, provides the necessary corroboration, even if that was considered necessary. The High Court on a clear misreading of the evidence on record, acquitted the respondent of the charge under Section 376 IPC while upholding his conviction under Section 450 IPC."
45. Hon'ble Supreme Court has given much importance to the testimony of prosecutrix in the matter of State of U.P. vs. Chhoteylal (supra). The relevant paragraph 19 is being quoted below :
"19...............But, before we do that, we state, as has been repeatedly stated by this Court, that a woman who is victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact, the evidence of the prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations."
46. Statement of PW-2 (i.e. prosecutrix) evinces the chronology of event and she had clearly articulated as to how the crime of rape was committed against her. She had clearly worded about the insertion of male organ into her private part. She had been continuously blackmailed for about one month prior to date of incident and throughout subjected to forceful sexual intercourse under the threat that if she disclosed anything about the incident to any person, her photographs would be distributed all over the village. On the ill fated day i.e. 18.05.2011 while she had gone to forest to collect fodder for the cattle, she had been subjected to forceful sexual intercourse by the accused-appellant with one accomplice Faizaan who took turn one by one.
47. PW-5 Atiq-ur-Rehman had clearly stated that he and Gaffar, after hearing the screaming of girl, immediately rushed towards the place of incident and saw that Faizaan was holding hand of the prosecutrix and Zulfiqar @ Zillu (appellant) was lying over the victim and committing rape. By the time they reached at the spot both accused persons fled away from the scene. Atiq-ur-Rehman (PW-5) is an independent witness of the incident and had clearly stated and affirmed that the crime was committed by accused persons. Nothing has been emerged in his cross-examination to create doubt in his testimony. There is throughout consistency in the statements of PW-1, PW-2 and PW-5 who had categorically narrated the commission of offence of rape.
48. Evidence as a whole indicates that there was resistance by the victim and there is no sign of voluntary participation of victim for alleged sexual act. She had been subjected to forceful sexual intercourse under threat to her life and coercion. On the date of incident she had been pinned down on the field and subjected to rape. Said incident cannot be construed as a consented sexual act. All the circumstances and evidences available on record clearly indicate towards the fact that the victim/prosecutrix had never produced her body voluntarily, instead she had resisted to the best of her ability. Even while resisting the conduct of the accused she had sustained several injuries, which is evident from the Medical Report dated 18.05.2011 (i.e. Exhibit Ka-5) which had been duly proved by Dr. Pramod Kumar Gupta (PW-4). Thus, she freely exercised choice between resistance and assent, and she had raised alarm against the offence committed by the accused persons. Even otherwise, if she had been a consented party to the offence, the injuries caused on her body would not have been occurred at all.
49. In the present matter, testimony of the prosecutrix is sufficient in itself and can be made the solitary basis for conviction of the accused persons. In fact, her statement is unimpeachable and beyond reproach. Even otherwise, version of the prosecution is fully corroborated by the statement of other witness of fact as well as Medical Certificates i.e. Exhibits Ka-3, 4 and 5.
50. Learned counsel for appellant had raised doubt on the correctness and genuineness of two medical reports. First was prepared on the date of the incident i.e. 18.05.2011 (Exhibit Ka-5) whereas subsequent reports were prepared on 30.06.2011 (Exhibit Ka-3) and its supplementary report on 02.07.2011 (Exhibit Ka-4), which were prepared after lodging FIR. It is submitted by the learned counsel for the appellant that in the subsequent reports no sign of injury had been shown and condition of prosecutrix's vagina had been shown to admit two fingers easily and there was also absence of spermatozoa.
51. Aforesaid submission made by the learned counsel for the appellant is unfounded, inasmuch as, subsequent medical examination of the victim was conducted at a very delayed stage, after 42 days from the date of the incident. First report was prepared and signed on the date of the incident i.e. 18.05.2011 by Dr. Pramod Kumar Gupta (PW-4) and second medical examination was conducted by Dr. Saroj Arora (PW-3), who had submitted the report (Exhibit Ka-3) and on the instructions of Dr. Arora, Ossification Test and Swab Test of vagina was conducted to ascertain age of victim which she opined to be 17 years in the supplementary medical report dated 02.07.2011 (Exhibit Ka-4). After lapse of sufficient time that is about 42 days, absence of spermatozoa is quite possible and cannot be proved fatal to the prosecution case. So far as the injuries on the body of victim is concerned, that could easily be healed during this period which were simple in nature and appears to have been inflicted due to scuffling between the victim and accused, wherein she had been pinned down on the ground and subjected to forceful sexual intercourse. All injuries as mentioned in the medical report dated 18.05.2011 (Exhibit Ka-5) are very natural which could be caused in such a situation. It is also very natural that those injuries might be healed during the sufficient time lapse of 42 days, when subsequent medical examination was conducted on 30.06.2011. In her statement, PW-3 Dr. Saroj Arora had clearly stated the age of victim to be 17 years and possibility of rape could not be ruled out. The relevant portion of her statement is being quoted below :-
"इन परीक्षणो के आधार पर मेरी राय में उसकी उम्र लगभग 17 वर्ष थी। बलात्कार के सम्बन्ध मे कोई निश्चित राय नही दी जा सकती। हाइमन पुराना फंटा होने के बाद भी बलात्कार की संभावना से इंकार नही दिया जा सकता। यदि पीडिता के साथ दि 18.5.11 का बलात्कार हुआ हो तो दिनांक 30.6.11 तक परिक्षण की तिथि तक स्परमैटीजोआ नही पाये जायेगे। मूल पूरक रिपोर्ट आज पत्रावली पर मेरे सामने मेरे लेख व हस्ताक्षर मे है इस पर एक्ज क 4 डाला गया।"
52. So far as condition of hymen is concerned, in Medical Report dated 30.06.2011 (Exhibit Ka-3), it has been mentioned as "Hymen old torn. Vagina admits two fingers easily." Aforesaid condition of vagina could be caused in the present matter wherein victim had been continuously subjected to forceful sexual intercourse for one month prior to the incident i.e. 18.05.2011. She deposed that she had clearly told the Investigating Officer that she had been subjected to rape in past also. PW-1 (i.e. mother of victim) had also stated that her daughter informed that for about one month prior to the incident she had been continuously subjected to rape.
53. In the aforesaid circumstances, acceptability of two fingers, easily, in vagina and torn hymen, is quite natural. Even otherwise, promiscuity of victim cannot create any impediment in conviction of the present accused-appellant, who can be convicted beyond doubt for offence of rape, which is fully established from the facts and circumstances of present case.
54. After considering the facts and circumstances of present case and appraisal of evidence available on record, we have no hesitation to hold that the present accused-appellant had committed an offence of rape with the victim, who had been forcibly subjected to sexual intercourse against her will. Accused has failed to discharge his onus of proof that the victim was involved with him in consensual sex. In cross-examination of the prosecution witnesses and in the statement of the accused under Section 313 Cr.P.C., nothing has been emerged fortifying the defence of consensual sex. Testimony of the victim is itself sufficient to convict the accused persons, inasmuch as, it is trustworthy, truthful and unimpeachable. Her statement is also fully corroborated by an independent witness (i.e. PW-5), who reached on the spot while accused were committing crime of rape. Facts and circumstances of present case inspire confidence of this Court and no second opinion can be inferred except to hold that accused-appellant Zulfiqar @ Zillu is guilty of committing forceful sexual intercourse with the victim/prosecutrix against her will.
55. Resultantly, this appeal is hereby dismissed. Impugned judgment and order dated 03.11.2012 passed in the Sessions Trial No.655 of 2011 (Zulfiqar @ Zillu vs. State of U.P.) convicting and sentencing the accused-appellant, is hereby affirmed and maintained. The accused-appellant is already in jail. He shall serve out the sentence as awarded by the court below.
56. Let a copy of this judgment along with lower Court's record be transmitted forthwith to concerned Court below for necessary compliance.
Order Date : 10.07.2020
VR/Manish Himwan
(Dinesh Pathak, J.) (Mrs. Sunita Agarwal, J.)