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Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1095 OF 2018 (Arising from SLP (Crl.) No. 8578/2017)

DOLA @ DOLAGOBINDA PRADHAN & ANR.    ..APPELLANTS

VERSUS

THE STATE OF ODISHA ..RESPONDENT

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The judgment dated 10.05.2017 passed in CRA No. 267 of

1992 by the High Court of  Orissa at Cuttack confirming the

judgment of conviction and order of sentence dated 20.07.1992

passed by the Assistant Sessions Judge, Bonai, in ST No. 65/2

of  1991-1992,  is  called  in  question  in  this  appeal.   By  the

impugned  judgment,  the  High  Court  has  confirmed  the

judgment and order of conviction passed against the appellants

for the offence under Section 376(2)(g) of the Indian Penal Code

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(for  short  ‘the  IPC’)  and  order  of  sentence  of  Rigorous

Imprisonment for ten years.   

3. The  case  of  the  prosecution  in  brief  is  that  when  the

victim-prosecutrix was enroute home from her road side “eating

house” (hotel)  near Khuntagaon weekly market at about 8:00

p.m.  on  24.03.1990,  the  appellants  suddenly  emerged  from

behind a ‘Mahulatree’ and gagged her mouth by a napkin and

physically carried her to a roadside date-palm clump. Akshya

Pradhan  (Appellant  No.2)  threatened  the  victim  with  dire

consequences by showing a knife at her, and being frightened,

the victim could not raise any alarm. The appellants made her

lie on the field and both of them committed rape on her.  The

victim thereafter rushed to her house and narrated the entire

episode  to  her  husband.   She  also  showed  her  torn  inner

garments  worn  at  the  time  of  occurrence  and  the  injury

sustained by her on her cheeks.  The next day, at about 11.00

a.m. the victim and her husband went to the police station and

lodged the First Information Report (Ext. 1).  The Investigating

Officer  (PW-7)  took  up  the  investigation  and  filed  the

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charge-sheet against both the accused for the above-mentioned

offence.  After framing the charges, the Sessions Court held the

trial.  As mentioned supra, the Trial Court convicted both the

accused for the offence punishable under Section 376(2)(g) of

the IPC and the same came to be confirmed by the High Court.   

4. Ld.  Counsel  for  the  appellants,  taking  us  through  the

material on record, submitted that an implicit reliance cannot

be placed on the uncorroborated testimony of the victim, who

had a  strong  motive  to  implicate  the  appellants  falsely  in  a

serious crime.   The victim’s  husband has not  supported the

case of the prosecution.  The story as put forth by the victim

bristles with inherent improbabilities and exaggerations.  The

case  of  the  prosecution  is  not  supported  by  the  medical

evidence and the entire case of the prosecution is a cooked-up

story against the appellants in order to take revenge against

them because of a business rivalry.

Ld. Counsel for the State argued in support of  the

judgments of the Trial Court as well as the High Court.  

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5. It is well settled law that if the version of the prosecutrix is

believed, basic truth in her evidence is ascertainable and if it is

found to be credible and consistent, the same would form the

basis of conviction.  Corroboration is not a  sine qua non for a

conviction in a rape case.  The evidence of a victim of sexual

assault stands at par with the evidence of an injured witness

and  is  entitled  to  great  weight,  absence  of  corroboration

notwithstanding.  If the evidence of the victim does not suffer

from any basic infirmity and the “probabilities factor” does not

render it unworthy of credence, as a general rule, there is no

reason to insist on corroboration, except from medical evidence,

where, having regard to the circumstances of the case, medical

evidence can be expected to be forthcoming.  When a grown up

and married woman gives evidence on oath in Court that she

was raped, it is not the proper judicial approach to disbelieve

her outright.   

6. In  this  regard  it  would  be  useful  to  quote  certain

observations of this Court in the case of Bharwada Bhoginbhai

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Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is

observed that:  

“10.  By and large these factors are not relevant to India, and the Indian conditions. Without the fear  of  making  too  wide  a  statement,  or  of overstating the case, it can be said that rarely will  a  girl  or  a  woman  in  India  make  false allegations of sexual assault on account of any such  factor  as  has  been  just  enlisted.  The statement is generally true in the context of the urban as also rural  Society.  It  is  also by and large  true  in  the  context  of  the  sophisticated, not  so  sophisticated,  and  unsophisticated society.  Only  very  rarely  can  one  conceivably come across an exception or two and that too possibly  from  amongst  the  urban  elites. Because: (1) A girl or a woman in the tradition bound non-  permissive  Society  of  India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her  own family  members,  relatives,  friends and  neighbours.  (3)  She  would  have  to  brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and  happiness  being  shattered.  (5)  If  she  is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match  from  a  respectable  or  an  acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to  herself.  (7)  The  fear  of  being  taunted  by others will always haunt her. (8) She would feel

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extremely embarrassed in relating the incident to  others  being  over  powered  by  a  feeling  of shame  on  account  of  the  upbringing  in  a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid  giving  publicity  to  the  incident  lest  the family name and family honour is brought into controversy. (10) The parents of an unmarried girl  as also the husband and members of  the husband's  family  of  a  married  woman  would also  more  often  than  not,  want  to  avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident  regardless of  her  innocence.  (12)  The reluctance  to  face  interrogation  by  the investigating agency, to face the court, to face the  cross  examination  by  Counsel  for  the culprit, and the risk of being disbelieved, acts as a deterrent.

11.   In view of these factors the victims and their  relatives  are  not  too  keen  to  bring  the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in  assurance  that  the  charge  is  genuine rather  than  fabricated.  On  principle  the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate  the  real  offender,  the  evidence  of  a victim of a sex-offence is entitled to great weight, absence  of  corroboration  notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming  in  physical  assault  cases,  such

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evidence  cannot  be  expected  in  sex  offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World (Obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of  the victim does not suffer from any  basic  infirmity,  and  the  “probabilities factors” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case,  medical  evidence  can  be  expected  to  be forthcoming,  subject  to  the  following qualification:  Corroboration  may  be  insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood  of  her  having  levelled  such  an accusation  on  account  of  the  instinct  of self-preservation.  Or  when  the  'probabilities factor' is found to be out of tune”.

                                        (emphasis supplied)

7. In  Sadashiv  Ramrao  Hadbe  v.  State  of  Maharashtra,

[(2006)  10  SCC  92],  this  Court  reiterated  that  the  sole

testimony of the prosecutrix could be relied upon if it inspires

the confidence of the Court:

“9. 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 confidence in the mind of the court. If the version given by

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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.”

8. However, as is also evident from the observations above,

such  reliance  may  be  placed  only  if  the  testimony  of  the

prosecutrix appears to be worthy of credence.  In this regard, it

is also relevant to note the following observations of this Court

in the case of Raju v. State of Madhya Pradesh, [(2008) 15 SCC

133], which read thus:

“10. The aforesaid judgments lay down the basic principle  that  ordinarily  the  evidence  of  a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary.  Undoubtedly,  the  aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at  the  same time a  false  allegation of  rape  can

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cause equal distress, humiliation and damage to the  accused as well.  The accused must  also  be protected  against  the  possibility  of  false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened  and  that  ordinarily  such  a  witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that  the  statement  of  such a  witness  is  always correct  or  without  any  embellishment  or exaggeration.”

Having due regard in our mind to the above-mentioned

settled position in law, we have assessed the entire material on

record meticulously.      

9. The  victim/prosecutrix  (PW-1)  has  deposed  that  on  the

night of the incident, at about 7:00 p.m., the accused persons

forcibly lifted her while she was going alone to her house from

her hotel, her husband having left already.  Though she wanted

to shout, she could not do so since the accused showed a knife

and threatened her with dire consequences.  After this, both the

accused persons committed rape on her.  According to her, her

saya (petticoat) (MO No. II) was stained with semen.  The police

had seized her saree, saya, and blouse, and she was examined

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by the doctor at the instance of  the police.  Although in the

examination-in-chief she has deposed about the exact names of

each  of  the  accused,  and  the  details  of  the  incident,  her

admissions in the cross-examination raise several doubts as to

the veracity of her version as found in the examination-in-chief.

In her cross-examination, she admitted that both the accused

persons have a hotel near her hotel; she is the first wife of her

husband; her sister is the second wife of her husband and is

also residing with her husband; the spot of the incident is in

between her hotel and Nuadihi Chowk; the road bifurcates at

Nuadihi Chowk and buses usually turn at that chowk; there

are shops on that chowk; her hotel is towards the west of that

road; the hotel of one Purna Bira is near her hotel; the house of

Purna Bira is close to the hotel where he resides with his family

members; Nuadihi U.P. School is near that chowk; there are 4

to 5 residential houses near that U.P. School; and teachers also

live on the school campus.  The scene of offence is a corner

place  in  between  the  U.P.  School  and  residential  houses

situated near the school.  She further deposed that there are

village roads near the scene of  offence which connect  to the

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main road.   There are cultivable lands between the village road

and the spot.  The spot is encircled by cultivable lands.  There

are small stones near the spot.  The spot is not plain, but it is

uneven.  She further admitted in the cross-examination that

she did not meet anybody while going to her house after the

alleged incident, and that none of the neighbours came to her

house  when she disclosed  the  matter  to  her  husband.   Her

husband, her brother-in-law, one servant boy and she herself

work in the hotel.  One Mr. Dasarathi Sahu is a partner for this

hotel business.  Vehicles ply throughout the day and night in

front of her hotel.  In her hotel, food is usually served till 10.00

p.m.  Curiously,  she  admitted that  she  could  not  say if  the

occurrence  took  place  on  24.03.1990.   On  the  day  of  the

occurrence, there was a weekly market in the village and in that

market, business is usually carried on from morning till 10.00

p.m.   

10. From the aforementioned admissions of the victim, it  is

clear that the scene of offence is a busy area wherein a number

of buses ply, many shops and residential houses exist, and a

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school is also situated.  The scene of offence is near a circle

wherein buses pass through frequently.  The business in that

area generally ends only at 10.00 p.m., which means that the

area in question is a very busy area till 10.00 p.m.  According

to the prosecution, both the accused persons lifted the victim

forcibly from the road, sometime between 7:00 and 8:00 p.m.

and took her from that busy area and committed the offence of

rape on her.  Such a story put forth by the prosecution which

prima facie appears to be improbable needs to be proved by the

prosecution beyond reasonable doubt.  Though both the Courts

concurrently  concluded  against  the  accused  persons,  we,  in

order to satisfy our conscience, have gone through the evidence

on record.    

11. In  her  cross-examination,  it  was  also  admitted  by  the

victim that  there is  a Village Forest Protection Committee at

village  Sadhubahal,  and  that  people  sometimes  used  to  sell

firewood  by  removing  the  same  from  the  forest  and  the

adjoining forests. She denied knowing that the Appellant No.1,

Dolagobinda Pradhan, was the President of the Village Forest

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Protection Committee, and that the Committee had asked her

husband to not remove firewood from the forest. However, she

admitted that there was a hot exchange of words between her

husband and the accused Dolagobinda, and that her husband

was  assaulted  by  the  people  of  village  Sadhubahal,  wherein

Dolagobinda also gave him blows. The occurrence of the said

assault  had  taken  place  in  the  morning  on  the  date  of

occurrence of rape.  Again, on the very day in the evening, the

people of Sadhubahal created a disturbance at the hotel of the

victim/prosecutrix, demanding shifting of  her hotel from that

place.  According to the victim, the rape took place sometime

after  that  disturbance.  Additionally,  the  prosecutrix  deposed

that she, along with her husband, reported to the police about

the  assault  on  her  husband.  Dolagobinda  and  the  others

involved did not go to the police station when called. She also

stated that she, as well as her husband, was called to the police

station  two  days  after  the  occurrence.   In  view  of  such

admissions of the victim, the submission made on behalf of the

accused that they have been falsely implicated in order to take

revenge against them appears to be well founded.  It is the case

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of the defence that the prosecutrix and her husband used to

indulge in cutting of firewood from the forest and selling the

same in the market, due to which the villagers, as well as the

President of the Forest Protection Committee (Appellant No.1),

were aggrieved, and a tussle had taken place in that regard.   

12. Curiously, the victim has not sustained any injury except

some bruises on her cheeks.  Her clothes were not even soiled

with mud. In her cross-examination, she admitted that there

was a tussle at the time of the alleged incident, and that she

tried  to  save  herself.  She  also  stated  that  both  the  accused

persons physically lifted her from the spot, and her bangles had

been broken, by which she had sustained bleeding injuries on

her  hands.  Furthermore,  she  said  that  she  also  sustained

marks of violence on her hands.  She did not sustain any injury

on her knee, breasts and buttocks. She stated that she has no

acquaintance with the accused persons and she did not have

any kind of dealings with them.  She further admitted that she

had  worn  eight  bangles  on  each  of  her  hands  and  all  her

bangles on the right hand were broken and only one bangle of

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the left hand remained unbroken, and that all the bangles were

broken at the spot of offence.   

13. Although  the  prosecutrix  admitted  that  she  sustained

bleeding injuries on her hand because of the shattering of eight

bangles worn by her on her right hand and seven bangles on

her left hand, and had marks of violence present on her body,

the medical records do not support the said version.  The report

of the medical examination is at Ext. 4.  It is clearly mentioned

in the said report that there is a bruise mark measuring half a

centimeter, which can be caused by a hard and sharp object,

on the right cheek.  No other mark of injury was seen anywhere

on the body.  There is no injury on the breasts,  there is no

internal injury on any part of the body and no injury was found

on the vulva, pelvis and vagina.  There are no signs of injury on

the  thighs  as  well.   Except  for  one  bruise  on  cheek  which

measures half a centimeter, no other injury was found on the

victim and the same is clear from the medical report (Ext. 4).

14. Thus, medical evidence does not support the case of the

prosecution.  The  Doctor  (PW-4),  who  examined  the  victim,

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however,  has  deposed  that  there  were  four  bruises,  each

measuring half a centimeter on the left cheek and four bruises

each  measuring  half  a  centimeter  on  the  right  cheek.   The

Doctor opined that the injuries are simple in nature and might

have been caused by a hard and sharp object.  The Doctor did

not find any other injury on the body of the victim.  There was

no injury on the back side of the body of the victim.  Although

the Doctor  has  deposed in the  examination-in-chief  that  the

injuries  could  have  been  caused  by  human  bite,  he  has

admitted in his cross-examination that he has not mentioned

the shape of the injuries in his report.  He further admitted that

a bruise can be caused by a blunt object like stone, wood, fist

blow etc. and can also be caused by a fall.  While a bruise is

always  accompanied  by  swelling,  an  abrasion  caused  by  a

human bite is elliptical or circular in form, and is represented

by separated marks corresponding to the teeth of the upper and

lower jaw. If we were to believe that the abrasion was caused by

a bite, the same should have been elliptical or circular in form.

The said material is not forthcoming from the records.

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Moreover, the medical report (Ext. 4) is contrary to the

version of the Doctor with regard to the number of injuries as

well.   The  medical  report  merely  states  that  the  victim  has

sustained a bruise mark measuring half a centimeter in size,

which means that only one bruise was found on the right cheek

of the victim.  However, during his deposition the Doctor has

exaggerated to say that the victim has sustained four bruises

on each of her cheeks.  In any event, merely on the basis of a

bruise or bruises on the cheeks, which can be caused even by a

fall or by an assault with a hard substance, it cannot be said

that the victim has suffered sexual assault.   

15. The sample of  semen and saliva including the petticoat

(saya)  of  the  victim  were  sent  to  the  Forensic  Science

Laboratory  (for  short  ‘the  FSL’)  for  examination.   The  FSL’s

report  disclosed  that  semen  was  not  detected  on  the  saya

(petticoat). All other exhibits collected and sent to the FSL, i.e.

the samples of saliva and semen collected for testing purposes

from  the  two  accused  and  the  prosecutrix’s  husband,  were

unsuitable  for  serological  examination.   Since  the  saya

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(petticoat) did not contain any seminal stain, it would be hard

for the Court to believe that sexual assault had taken place on

the victim, more particularly when the other material does not

support the case of the prosecution, and when it is not the case

of the prosecution that the victim has changed her dress or that

she had washed her clothes, etc.  Per contra, the evidence on

record discloses that the victim stayed in her house all night

and thereafter, leisurely at 11.00 a.m. the next day, she went to

the police station and lodged the FIR, after which she was taken

for medical examination.  If the offence of rape had really taken

place, and her saya was in fact stained with semen, the same

would have been depicted in the FSL report.  

16. It  was  also  admitted  by  the  prosecutrix  in  her

cross-examination  that  she  had  not  clearly  seen  the  face  of

anyone at the time of occurrence and she could not recognize

the  persons  committing  the  rape  by  face,  but  she  could

recognize them hearing their voice.  If we were to believe that

the  victim  did  not  have  any  acquaintance  with  any  of  the

accused persons, and that she could not see and recognize the

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faces of any of the accused persons at the time of occurrence, it

would  appear  improbable  for  her  to  recognize  the  accused

merely by hearing their voice. There cannot be any dispute that

when  the  persons  are  known  to  each  other,  a  person  can

certainly  identify  the  other  person  by  voice.  However,  the

question of identification by voice has to be dealt with by the

Court carefully. In Kirpal Singh vs. State of U.P., [AIR 1965 SC

712],  this  Court,  while  dealing  with  the  question  of  voice

identification, observed as follows:

“4…It  is  true  that  the  evidence  about  the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognizing is not familiar  with  the  person  recognized  may  be somewhat  risky  in  a  criminal  trial. But  the appellant  was  intimately  known  to  Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several  occasions  in  connection  with  the dispute  about  the  sugarcane  crop.  Rakkha Singh had heard the appellant and his brother calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the  shooting  referring  to  the  dispute  about sugarcane.”                                          (emphasis supplied)

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In light of the above observations, the Court found

that the voice identification of the accused by a witness, whose

credibility  had otherwise been accepted by the courts  below,

was  not  improbable.  This  principle  was also  applied  by  this

Court in Mohan Singh vs. State of Punjab, [AIR 2011 SC 3534].

In this case, voice identification was accepted, inter alia, on the

ground that there was no evidence adduced to challenge the

evidence  of  the  witness  that  he  had  acquaintance  with  the

accused and that he knew the voice of the accused. The Court

also adverted to the decision of this Court in Inspector of Police

vs. Palanisamy, [(2008) 14 SCC 495], wherein it was held that

though identification from voice is  possible,  no evidence had

been  adduced  to  show  that  the  witnesses  were  closely

acquainted with the accused to enable voice identification and

that too from very short replies.

Thus, from the above cases we may cull out the principle

that  identification  from  the  voice  of  the  accused  may  be

possible  if  there  is  evidence  to  show  that  the  witness  was

sufficiently acquainted with the accused in order to recognize

him or her by voice.

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In  the  matter  on  hand,  the  prosecutrix  herself  has

admitted that there was no acquaintance between the victim

and accused. In such a scenario, it would be difficult for us to

accept the version of the victim that she recognized the accused

from their voice. We reiterate the observations in  Kirpal Singh

(supra) that the identification of a person by the timbre of his

voice is risky in a criminal trial, when the identifying person is

not familiar enough with the accused to be able to differentiate

between subtle variations in the overtones. In the view of the

lack of acquaintance between the prosecutrix and the accused,

it  will  not be safe for us to accept her version regarding the

identity  of  the  accused,  given  the  absence  of  a  Test

Identification Parade.

17. The  crown  to  these  suspicious  circumstances  is  that

PW-3, the prosecutrix’s husband, was declared hostile. In his

examination-in-chief, he deposed that the victim reached their

house  between  7-8  p.m.,  crying.  He  refused  to  speak  about

what she told him, out of shame.  In his cross-examination by

the  prosecution,  he  denied  being  told  by  his  wife  that  the

accused forcibly lifted and raped her. He only admitted being

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told  that  the  accused  dragged  her  on  the  way.  Thus,  he

maintained that his wife had not narrated the rape incident to

him, even upon a specific query by the public prosecutor in this

regard.  

He also admitted to the occurrence of the tussle over the

allegations of theft of forest produce levelled against him by the

accused and around forty other persons, all of whom assaulted

him on the morning of the alleged incident of rape and asked

him to shift his hotel away from its current location, which was

near the hotel operated by the accused. He specified that he

was not deposing falsely out of fear.  

During his cross-examination on behalf of the accused, he

also admitted that a dispute occurred at his hotel on the day

before the date of the incident, in the absence of his wife. He

reiterated that on the day of the incident, around 50 persons

had created a disturbance at his hotel in the morning, though

he could not specify who hit him. He even went on to say that

his  wife  had  sent  someone  to  the  police  station  after  this

assault,  whereupon  the  police  came  to  his  hotel,  and  even

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called everyone to the police station, though the accused did

not oblige.  

With  regard  to  the  rape  incident,  he  deposed  that  he

accompanied his wife to the police station on Sunday morning,

i.e. the day following the day of the alleged incident, reaching

around 10:00 a.m. and returning around 05:00 p.m. It may be

noted  that  the  prosecutrix  herself  deposed  in  her

cross-examination that they returned around 1.30 to 2:00 p.m.

He  claimed  that  having  remained  outside  the  police  station

while  his  wife  was  examined,  he  had no  knowledge  of  what

transpired inside. Finally, he admitted to not telling anyone in

the  village  about  the  rape incident  or  the  visit  to  the  police

station.

18. According to the prosecution, the incident has taken place

at  about  7:00  p.m.  to  8:00  p.m.  on  24.3.1990.  As  per  the

admissions of both the prosecutrix and her husband, PW-3, in

the morning as well as in the evening of the date of incident, a

number of people had gathered and created disturbance in the

hotel of the victim and PW-3, and assaulted him.  It seems that

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the running of the hotel by the victim and her husband was not

palatable to the accused and forty other persons in the village.

Added to this, PW-3 was stated to have been involved in the

theft of forest produce and in that regard the villagers had a

grievance against him.   

19. As mentioned supra, the spot where the alleged rape had

been committed and the spot from where the victim was forcibly

physically  lifted  by  the  accused  were  not  deserted  places,

inasmuch  as  in  the  normal  course  of  a  day,  numerous

passersby and vehicles ply there.  It is unlikely that no one had

noticed the victim being lifted and subjected to forcible sexual

intercourse.  Though the victim narrated the entire incident to

her husband (PW3), he has denied before the Court that the

victim informed him about the commission of  forcible sexual

assault on her.  Firstly, the husband (PW-3) refutes that the

victim told him that she was lifted from the spot and subjected

to forcible sexual intercourse. Secondly, PW-3 has deposed that

the victim told him that the appellants had dragged the victim

on the  way.   And finally,  he  has  also  denied  stating  to  the

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Investigating Officer that the victim told him that while she was

returning home from the hotel, the appellants have committed

rape  on  her.   The  deposition  of  PW-3  as  mentioned  supra,

practically does not support the version of the victim.  There is

no reason as to why PW-3, being the husband of the victim,

would contradict her version.  Moreover, the victim has deposed

that she did not see the face of anyone clearly, at the time of

occurrence  and  that  she  did  not  recognize  the  faces  of  the

persons committing rape on her.  As we have observed supra,

in the instant case, the contention of voice recognition cannot

be  accepted.  That  apart,  though PW-3  was  informed  by  the

victim about the incident immediately afterwards, which is the

natural conduct of a victim, strangely he was never examined

by  the  police,  as  per  his  own  admission,  though  he  was

standing outside the Police Station all throughout the recording

of his wife’s statement.  The victim alone was taken inside the

Police Station for reasons best known to the prosecution.  In

that  context,  the  contentions  of  the  defence  that  there  is  a

likelihood of creating a false case against the accused assume

importance.  

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20. The evidence of the victim/prosecutrix and her husband

(PW-3) are unreliable and untrustworthy inasmuch as they are

not  credible  witnesses.   Their  evidence  bristles  with

contradictions and is full of improbabilities.  We cannot resist

placing on record that the prosecution has tried to rope in the

appellants merely on assumptions, surmises and conjectures.

The story of the prosecution is built on the materials placed on

record,  which seems to  be neither  the  truth,  nor  wholly  the

truth. The findings of the courts below, though concurrent, do

not merit acceptance or approval in our hands with regard to

the  glaring  infirmities  and illegalities  vitiating them,  and the

patent errors apparent on the face of record resulting in serious

and grave miscarriage of justice to the appellants.  

21. In  the  matter  on  hand,  on  going  through  the  entire

material  on  record,  we  are  of  the  clear  opinion  that  the

prosecutrix apparently had motive to seek revenge against the

accused persons.  The testimony of the victim in the peculiar

facts  and circumstances  of  this  case  needs to  be  discarded,

since her testimony is a result of seeking revenge against the

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accused and as  her  evidence is  not  free  from blemish.   The

prosecutrix’s  evidence  with  regard  to  identification  of  the

accused was unworthy of credence as she has deposed that she

could  not  identify  the  faces  of  any  of  the  accused  persons,

coupled  with  the  factum  that  no  spermatozoa  was  found

evidencing  recent  sexual  intercourse,  as  also  there  was  no

injury on her body,  except  of  course,  a bruise on her cheek

measuring half a centimeter.  No doubt, solely relying on the

version of the victim, a conviction can be recorded, but such

version should  be  reliable.   If  really  the  victim had deposed

about  the  incident  to  her  husband  immediately  after  the

incident, there is no reason for PW-3 being the husband of the

victim, to not depose about the same before the Court.   The

testimony  of  PW-3  contradicts  the  story  laid  down  by  the

informant.  At the cost of  repetition, it  can be observed that

firstly, PW-3 denies specifically that the informant told him that

she was lifted from the spot and subjected to forcible sexual

intercourse.   Secondly,  it  is  specified  by  PW-3  that  the

informant merely told him that the accused were dragging her.

Finally, he also denies having stated to the Investigation Officer

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that  the  victim  told  him that  while  she  was  returning  from

hotel, the accused committed rape on her.  The Courts have

accepted the voluntary statement of the victim while discarding

various other probabilities.  The alleged scene of offence could

hardly be described as a deserted place or a secluded place for

the commission of such a ghastly crime. The spot where the

alleged rape was committed is practically near the market, and

near the main road wherein vehicles frequently ply and more

particularly  when the day  of  the  incident  was a  market  day

which used to  be  busy up to  10.00 p.m.   All  the  attending

glaring  inconsistencies  and improbabilities  as  also  the  other

evidence on record which demolishes the version of the victim

are conveniently ignored by the Trial Court and the High Court.

The Police have failed to recover the napkin which was used for

gagging the mouth of the victim.  So also the knife allegedly

used by the accused Akshya Pradhan for threatening the victim

was  not  recovered.   The  knife  would  have  contained  the

fingerprints of the accused if it was really used by the accused.

A careful  reading of  the evidence of  the prosecutrix and her

husband (PW-3) therefore leads us to the conclusion that the

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case as made out by the prosecution appears to be concocted. It

cannot be said that the offence of rape has been proved beyond

reasonable doubt.

22. In our considered opinion, the Trial Court as well as the

High Court have convicted the appellants without considering

the  aforementioned  factors  in  their  proper  perspective.   The

testimony of the victim is full of inconsistencies and does not

find support from any other evidence whatsoever.   Moreover,

the  evidence  of  the  informant/victim  is  inconsistent  and

self-destructive  at  different  places.   It  is  noticeable  that  the

medical  record  and  the  Doctor’s  evidence  do  not  specify

whether there were any signs of forcible sexual intercourse.  It

seems that the First Information Report was lodged with false

allegations  to  extract  revenge  from the  appellants,  who  had

uncovered the theft of forest produce by the informant and her

husband.   The  High  Court  has,  in  our  considered  opinion,

brushed aside the various inconsistencies pointed out by us

only  on  the  ground  that  the  victim could  not  have  deposed

falsely before the Court.  The High Court has proceeded on the

30

basis of assumptions, conjectures and surmises, inasmuch as

such  assumptions  are  not  corroborated  by  any  reliable

evidence. The medical evidence does not support the case of the

prosecution relating to the offence of rape.  Having regard to the

totality  of  the  material  on  record  and  on  facts  and

circumstances of this case, it is not possible for this Court to

agree with the concurrent conclusions reached by the courts

below.  At best, it may be said that the accused have committed

the offence of hurt, for which they have already undergone a

sufficient  duration  of  imprisonment,  inasmuch  as  they  have

been  stated  to  have  undergone  two  years  of  imprisonment.

Accordingly, the appeal is allowed. The judgments of the Trial

Court as well as the High Court are set aside.  The appellants

are acquitted of the charges levelled against them.  They should

be released forthwith, if they are not required in any other case.

                 ..………………………………..…….J.       [N.V. RAMANA]

                       ..……………………………………….J.

                                [MOHAN M. SHANTANAGOUDAR] NEW DELHI; AUGUST 29, 2018.