RAI SANDEEP @ DEEPU Vs STATE OF NCT OF DELHI
Bench: SWATANTER KUMAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-002486-002486 / 2009
Diary number: 10710 / 2009
Advocates: SHIV SAGAR TIWARI Vs
ANIL KATIYAR
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2486 OF 2009
Rai Sandeep @ Deepu …Appellant
VERSUS
State of NCT of Delhi …Respondent
With CRIMINAL APPEAL NO. 2487 OF 2009
Hari Singh …Appellant
VERSUS
State (NCT) of Delhi …Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. These two appeals at the instance of the accused arise
out of the common judgment dated 27.01.2009. Hence, we
will dispose them of by this common judgment. Both the
appellants were convicted for the offence of gang rape by the
trial Court and were sentenced to undergo rigorous
imprisonment for 10 years each with a fine of Rs. 3,000/-
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each, in default to undergo further rigorous imprisonment
for one year each under Section 376 (2)(g), IPC.
2. The case of the prosecution was that on 15.08.2001 in
the night at about 1.30 a.m. the prosecutrix (PW-4) aged
about 34 years was in her sister’s house, namely, Seema,
that she heard the noise of knocking at the door, that the
minor daughter of her sister, namely, Noju (PW-10), opened
the door and both the accused persons entered and the
accused Rai Sandeep @ Deepu told the prosecutrix that he
wanted to have sexual intercourse with her. According to
the prosecutrix (PW-4), she rebuked their demand stating
that she was not of that type and that the appellants
threatened her, that in the meantime one Jitender (PW-11),
minor son of her sister Seema appeared and both the minor
children asked the appellants to go out of their house but
the appellants pushed the minor children into a room and
bolted the door of the room from outside. The further
allegation of the prosecutrix (PW-4) was that the appellant-
Rai Sandeep @ Deepu in Criminal Appeal No.2486 of 2009
made her lie down in the Verandah outside the room and
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had forcible sexual intercourse with her while his
companion, the appellant in Criminal Appeal No.2487 of
2009 was guarding the main door of the house. It was
further alleged that after the appellant in Criminal Appeal
No.2486 of 2009 had forcible intercourse with the
prosecutrix (PW-4), he took the turn of guarding the door
while his companion, the appellant in Criminal Appeal
No.2487 of 2009 also had forcible sexual intercourse with
her, that both the appellants wiped their private parts with a
red colour socks which was lying in the Verandah and while
leaving the place of occurrence, they took away a gold chain
and a wrist watch which was lying near the TV inside the
room. The appellants stated to have left the place by bolting
the main door from outside. According to the prosecutrix
(PW-4), since it was dark in the night she did not venture to
go out at that time and in the morning she asked her
nephew Jitender (PW-11) to get out of the house from roof
top and open the door which was bolted from outside.
Thereafter, she is stated to have reported the incident to the
police.
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3. Based on the investigation, the appellants were
arrested and thereafter the gold chain and the wrist watch
was recovered at the instance of the appellant in Criminal
Appeal No.2486 of 2009 and subsequently on his disclosure
the appellant in Criminal Appeal No.2487 of 2009 was also
arrested. The prosecutrix (PW-4) and the appellants were
stated to have been medically examined, that the appellant
in Criminal Appeal No.2487 of 2009 refused to participate in
the test identification parade, that FSL report of Exhibits
were also obtained and the charge sheet was filed for the
offence of gang rape. Seventeen witnesses were examined on
the side of the prosecution which included the prosecutrix
(PW-4) as well as her niece Noju and nephew Jitender, minor
children of prosecutrix’s sister Seema who were examined as
PWs-10 and 11. PWs 1 and 5 were the doctors who testified
the medical report of the prosecutrix (PW-4). PWs-2, 3 and
13 were the doctors who deposed about the medical report of
both the appellants. SI Rajiv Shah (PW-14) was the
investigating officer. None were examined on the side of the
appellants. The appellants have been convicted as stated
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above and the said conviction having been confirmed by the
order impugned in this appeal, the appellants are before us.
4. Learned counsel appearing for the appellant in
Criminal Appeal No.2486 of 2009 submitted that while the
alleged offence took place on the night of 15.08.2001 at 1.30
a.m., the FIR was lodged at 14.20 hours on the next day,
that in the FIR the name of the appellant in Criminal Appeal
No.2486 of 2009 alone was mentioned and that there were
very many contradictions in the version of the prosecutrix
(PW-4) before the Court. Learned counsel by referring to the
FSL report PW-14/N contended that the report does not
implicate the appellant to the offence alleged against him.
According to learned counsel, the trial Court as well as the
High Court ignored the fact that the accused were neither
identified nor their presence was established at the place of
occurrence. It was also contended that there were material
contradictions in the evidence of PWs10 and 11, and that of
the prosecutirix (PW4) and, therefore, the conviction and
sentence imposed is liable to be set aside.
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5. Learned counsel appearing for the appellant in
Criminal Appeal No.2487 of 2009 in his submissions
contended that in the case on hand the evidence of the
prosecutrix PW-4 definitely need corroboration, inasmuch
as, there were contradictions in the entirety of her evidence
which were fatal to the case of the prosecution. Learned
counsel contended that the appellant was not named in the
FIR and was roped in due to the statement of the co-
accused, namely, the alleged confession Annexure P-3(colly)
in Criminal Appeal No.2487 of 2009 stated to have been
made on 30.08.2001 based on which the present appellant
was implicated. Learned counsel also contended that the
medical evidence also did not support the story of the
prosecution. He also made extensive reference to the
evidence of the prosecutrix (PW-4) to contend that the same
was not in consonance with what was stated in the FIR and
that, therefore, serious doubts were created as to the case of
the prosecution and the trial Court failed to appreciate the
defects of the case in proper perspective. By making
reference to para 48 of the judgment of the trial Court,
learned counsel pointed out that the statement found
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therein by referring to the deposition of PW-11 was totally
misleading inasmuch as no such statement was ever made
by PW-11. Learned counsel further argued that the blood
group AB stated to have been detected from the semen
sample did not match with that of the accused and no blood
of the accused was ever detected. Learned counsel also
pointed out that no injury was noted in the breast and
thighs of the prosecutrix (PW-4) and, therefore, the allegation
of forcible intercourse was not proved. He further argued by
making a reference to Exhibit PW-4/B the recovery memo of
the socks from the place of occurrence, that in her evidence
the prosecutrix (PW-4) deposed that after preferring the
complaint she was taken to the hospital for medical
examination where she handed over the socks to the police
when her petticoat was seized. Learned counsel, therefore,
contended that the offence of rape alleged against the
appellant having not been established in the manner known
to law, the conviction and sentence imposed on the appellant
is liable to be set aside.
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6. As against the above submissions, learned counsel for
the State very fairly contended that PWs-10 and 11 did not
support the version of the prosecutrix (PW-4) and solely
based on the evidence of the prosecutrix as deposed in her
chief examination, the offence was held proved against the
appellants. Learned counsel contended that the variation in
her statement in the course of cross examination may be due
to the time gap of two years after her examination in chief
and, therefore, the same does not in any way affect the case
of the prosecution. Learned counsel by referring to the
reasoning of the trial Court, namely, that semen stains were
found on the petticoat of the prosecutrix, that it was not the
case of the accused that she had sexual intercourse with her
husband on the previous night, that she was in the house of
her sister on the date of occurrence, that the medical report
Exhibit PW-5/A disclosed an abrasion on the right side of
her neck below jaw and the said injury was not self inflicted
and the prosecutrix being a married woman, there was no
possibility of bleeding in vagina as the hymen was old torn
and it was sufficient enough to prove the guilt of the
accused. According to him, the refusal of the appellant in
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Criminal Appeal No.2487 of 2009 to participate in the test
identification parade was sufficient to find the appellant
guilty of the offence alleged against him. Learned counsel,
therefore, contended that the conviction and sentence
imposed do not call for any interference. He placed reliance
upon the decision of this Court reported as State of Punjab
v. Gurmit Singh & Ors. - 1996 (2) SCC 384 in support of
his submission. Learned counsel for the appellant in
Criminal Appeal No.2487 of 2009 relied upon the decision in
Lalliram & Anr. v. State of Madhya Pradesh - 2008 (10)
SCC 69, Krishan Kumar Malik v. State of Haryana -
2011(7) SCC 130 and Ashok Kumar v. State of Haryana -
2003 (2) SCC 143.
7. Having heard learned counsel for the appellants as well
as the State counsel and having perused the relevant papers
on record as well as the judgments of the courts below, we
feel it appropriate to refer to the various contradictions
pointed out by the learned counsel for the appellants and
the inconsistencies in the case of the prosecution as
projected in the FIR as sought to be demonstrated before the
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Court in the form of oral and medical evidence. To
recapitulate the case of the prosecution as projected in the
FIR, on the night of 15.08.2001 at about 1.30 a.m., PW-4,
the prosecutrix aged about 34 years, a married woman, who
was staying in her sister’s house, heard knocking of the door
and that when she opened the door along with her niece
Noju (PW-10) who was a minor girl, the accused alleged to
have forcibly entered the house and demanded sex from the
prosecutrix which she refused and the appellants forced
themselves on her one after another after pushing her
nephew Jitender (PW-11) and niece Noju (PW-10) inside a
room and bolting it from outside, and that one of the
accused kept vigil on the main door while the other had
forcible sexual intercourse with her in turn. It was also
alleged that after committing the offence and after wiping
their private parts with a red colour socks lying in the
verandah and while leaving the place of occurrence they
stealthily removed a gold chain and a wrist watch and also
bolted the door from outside. According to the prosecution,
the appellant in Criminal Appeal No. 2486 of 2009 was
apprehended in the first instance and based on the
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admissible portion of his confession, the gold chain and
wrist watch were recovered and based on his disclosure the
appellant in Criminal Appeal No. 2487 of 2009 was also
arrested.
8. Keeping the above basic features of the offence alleged
against the appellants in mind, when we make reference to
the evidence of the so called ‘sterling witness’ of the
prosecution, namely, the prosecutrix, according to her
version in the chief examination when the persons who
knocked at the door, were enquired they claimed that they
were from the crime branch which was not mentioned in the
FIR. She further deposed that they made a statement that
they had come there to commit theft and that they snatched
the chain which she was wearing and also the watch from
Jitender (PW-11). While in the complaint, the accused
alleged to have stealthily taken the gold chain and wrist
watch which were lying near the T.V. It was further alleged
that the appellant in Criminal Appeal No.2486 of 2009 was
having a knife in his hand which statement was not found in
the complaint. After referring to the alleged forcible
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intercourse by both the appellants she stated that she
cleaned herself with the red colour socks which was taken
into possession under Exhibit PW-4/B in the hospital,
whereas, Exhibit PW-4/B states that the recovery was at the
place of occurrence. The police stated to have apprehended
the appellants at the instance of Jitender (PW-11) who knew
the appellant in Criminal Appeal No.2486 of 2009 even prior
to the incident, that Jitender (PW-11) also revealed the name
of the said accused to her and that, therefore, she was able
to name him in her complaint. When the seized watch was
shown to her in the Court, the brand name of which was
OMEX, she stated that the said watch was not worn by her
nephew Jitender (PW-11) as it was stated to be ‘TITAN’ and
the chain was a gold chain having no pendant. She made it
clear that that was not the chain which she was wearing and
that it did not belong to her and that the watch found in the
same parcel which was a women’s watch was not the one
which was worn by Jitender (PW-11).
9. All the above versions were found in the chief
examination of the prosecutrix (PW-4). In her cross
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examination, there was a U-turn in the version of the
prosecutrix where she went to the extent of stating that she
never knew the appellant in Criminal Appeal No.2486 of
2009 prior to the incident and that she was not aware that
accused Rai Sandeep was also known as Deepu, that she
never stated before the police that Jitender (PW-11) knew
Deepu prior to the incident or at the time of incident, that
since it was dark on the date of occurrence, she could not
indentify the accused, that her statement of orally identifying
the accused was at the instance of the police. When the
learned APP wanted to cross examine her, the same was
declined by the crime Court and there was also no re-
examination of the prosecutrix (PW-4).
10. Keeping aside the version of PW-4, the prosecutrix,
when we examine the so-called eye witnesses Noju (PW-10)
and Jitender (PW-11), their version is much more revealing.
Noju (PW-10) is the niece of the prosecutrix (PW-4), daughter
of prosecutrix (PW-4)’s sister, who was 10 years old at the
time of examination. Before recording her evidence, with a
view to test the capacity of the witness to depose before the
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Court, the Court questioned her about her blood relations,
education and as to whether one should speak the truth or
lie and on being satisfied, PW-10 was questioned. The trial
Court, after scrutinizing the replies and noting that the girl
child was answering the questions in a rationale manner
found her to be a competent witness. Thereafter when she
was asked to identity the accused, she made it clear that
they were not the persons. The witness further deposed that
prosecutrix (PW-4) is her aunt, that in the year 2001 when
she was sleeping in the house she did not know as to what
happened or as to anything happened at all. Learned
counsel with the permission of the Court, cross examined
the said witness when she deposed that two persons never
entered her home or ever confined her or anybody else in
any room nor they threatened anybody. She also deposed
that their house was not bolted from outside and her brother
did not open the door from outside.
11. Jitender (PW-11) who was 20 years old at the time of
his examination stated in his chief examination that 3 years
prior to the date of his examination in the month of August,
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he was sleeping on the roof top, that he saw two persons
quarrelling with his aunt, that he raised a hue and cry, that
thereafter both the persons ran away and that nothing else
happened. He also stated that he did not come down at all.
He totally denied the sequence of events as alleged in the
complaint and as narrated by PW-4 in her evidence.
12. Apart from the above version of the prosecution
witnesses, when reference is made to the medical report
relating to the prosecutrix as per Annexure P-4, there was an
injury of abrasion on right side neck below her jaw and that
there was no other injury either in the breast or her thighs.
The hymen was torn old, that there was no injury on the
valva and that there was no bleeding in her vagina. In the
FSL report Exhibit PW-14/N, it is stated that there was no
semen detected on the red colour socks. However, human
semen was detected on the petticoat. But there was no
matching of the blood group noted on the petticoat vis-à-vis
the blood group of the accused.
13. Keeping the above evidence available on record, when
we analyze the case of the prosecution as projected, we find
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that apart from the total prevaricating statement of the
prosecutrix herself in her oral version before the Court, the
other two witnesses PWs10 and 11 who were none other
then her niece and nephew not supported the story of the
prosecution. Leaving aside the version of the prosecutrix, we
wonder why Noju (PW-10), a minor girl child should at all
make a statement totally conflicting with the case of the
prosecution. The prosecutrix being her maternal aunt, there
is no reason for her to spin a different story and let her
down. Going by her version, the accused persons were never
seen in her house on the date of occurrence. She being
minor child, the trial court ascertained her capability to
depose as a witness. When we examine the nature of
queries made by the learned trial Judge to the said witness,
we find that her replies were all cogent and she knew for
what purpose she was standing before the Court. She was
very much aware that she should not utter any falsehood.
The Court was, therefore, convinced of her composure and
only thereafter proceeded to record her statement. The
Court itself pointed out the accused present before the Court
and asked her as to whether they were present in her house
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on the date of incident, to which she replied without any
hesitation and deposed that they were not present. She
went one step ahead and made it clear that on that night
nothing happened at all. Again her brother Jitender (PW-11)
stated that he heard two persons quarrelling with his aunt.
He also made it clear that apart from the said quarrel and on
his making a hue and cry both of them ran away and
nothing else happened.
14. The other discrepancies which are to be mentioned are
the categorical statement of the prosecutrix (PW-4) herself
that after the alleged forcible sexual intercourse by both the
accused, she wiped of her private parts with a red colour
socks which was lying in the house, though at another place
it was stated that both the accused used the red colour
socks to wipe of their private parts after the commission of
the offence. Assuming both the versions to be true, we find
that the red colour socks sent for chemical examination
revealed that it did not contain any semblance of semen in it
as per the FSL report Exhibit PW- 14/N. It was also pointed
out that while according to her the socks was handed over to
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the police in the hospital when the petticoat and the socks
were seized from her, according to the seizure memo the
socks was recovered from the place of occurrence. She was
a married woman and except the semen found in the
petticoat, there is no other reliable evidence for implicating
the accused-appellants to the crime alleged against them. In
this background, when we refer to the oral version of the
prosecutrix (PW-4), as pointed out by learned counsel for the
appellant, very many facts which were not found in her
original statement were revealed for the first time before the
Court.
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
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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
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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.
16. In the anvil of the above principles, when we test the
version of PW-4, the prosecutrix, it is unfortunate that the
said witness has failed to pass any of the tests mentioned
above. There is total variation in her version from what was
stated in the complaint and what was deposed before the
Court at the time of trial. There are material variations as
regards the identification of the accused persons, as well as,
the manner in which the occurrence took place. The so-
called eye witnesses did not support the story of the
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prosecution. The recoveries failed to tally with the
statements made. The FSL report did not co-relate the
version alleged and thus the prosecutrix failed to instill the
required confidence of the Court in order to confirm the
conviction imposed on the appellants.
17. With the above slippery evidence on record against the
appellants when we apply the law on the subject, in the
decision reported in State of Punjab v. Gurmit Singh &
Ors. (supra), this Court was considering the case of sexual
assault on an young girl below 16 years of age who hailed
from a village and was a student of 10th standard in the
Government High School and that when she was returning
back to her house she was kidnapped by three persons. The
victim was stated to have been taken to a tubewell shed of
one of the accused where she was made to drink alcohol and
thereafter gang raped under the threat of murder.
18. The prosecutrix in that case maintained the allegation
of kidnapping as well as gang rape. However, when she was
not able to refer to the make of the car and its colour in
which she was kidnapped and that she did not raise any
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alarm, as well as, the delay in the lodging of the FIR, this
Court held that those were all circumstances which could
not be adversely attributed to a minor girl belonging to the
poor section of the society and on that score, her version
about the offence alleged against the accused could not be
doubted so long as her version of the offence of alleged
kidnapping and gang rape was consistent in her evidence.
We, therefore, do not find any scope to apply whatever is
stated in the said decision which was peculiar to the facts of
that case, to be applied to the case on hand.
19. In the decision reported in Ashok Kumar v. State of
Haryana (supra), this court while dealing with the offence
under Section 376 (2) (g) IPC read with explanation held as
under in Para 8:
“8.Charge against the appellant is under Section 376(2)(g) IPC. In order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision
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embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence.”
20. Applying the above principle to the case on hand, we
find that except the ipse-dixit of the prosecutrix that too in
her chief examination, with various additions and total
somersault in the cross examination with no support at
all at the instance of her niece and nephew who according
to her were present in the house at the time of occurrence,
as well as, the FSL report which disclosed the absence of
semen in the socks which was stated to have been used by
the accused as well as the prosecutrix to wipe of semen,
apart from various other discrepancies in the matter of
recoveries, namely, that while according to the prosecutrix
the watch snatched away by the accused was ‘Titan’ while
what was recovered was ‘Omex’ watch, and the chain which
was alleged to have been recovered at the instance of the
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accused admittedly was not the one stolen, all the above
factors do not convincingly rope in the accused to the alleged
offence of ‘gang rape’ on the date and time alleged in the
chargesheet.
21. In the decision reported as State of Himachal
Pradesh v. Asha Ram - AIR 2006 SC 381, this Court
highlighted the importance to be given to the testimony of
the prosecutrix as under in para 5:
5. ………………………..It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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 . It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case .”
(emphasis added)
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22. That was a case where the father alleged to have
committed the offence of rape on one of his daughters who
was staying with him while his wife was living separately due
to estranged relationship. While dealing with the said case,
where the prosecutrix, namely, the daughter, apart from the
complaint lodged by her, maintained her allegation against
her father in the Court as well. This Court held that the
version of the prosecutrix in the facts and circumstances of
that case merited acceptance without any corroboration,
inasmuch as, the evidence of rape victim is more reliable
even that of an injured witness. It was also laid down that
minor contradictions and discrepancies are insignificant and
immaterial in the case of the prosecutrix can be ignored. As
compared to the case on hand, we find that apart from the
prosecutrix not supporting her own version, the other oral as
well as forensic evidence also do not support the case of the
prosecution. There were material contradictions leave alone
lack of corroboration in the evidence of the prosecutrix. It
cannot be said that since the prosecutrix was examined after
two years there could be variation. Even while giving
allowance for the time gap in the recording of her deposition,
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she would not have come forward with a version totally
conflicting with what she stated in her complaint, especially
when she was the victim of the alleged brutal onslaught on
her by two men that too against her wish. In such
circumstances, it will be highly dangerous to rely on such
version of the prosecutrix in order to support the case of the
prosecution.
23. In the decision reported as Lalliram & Anr. v. State
of Madhya Pradesh (supra) in regard to an offence of gang
rape falling under Section 376 (2) (g) this Court laid down
the principles as under in paras 11 and 12:
“11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra v. State of Orissa where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar v. State of Haryana.)
12. As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman
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Kumar case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial .”
(emphasis added)
24. When we apply the above principles to the case on
hand, we find the prevaricating statements of the prosecutrix
herself in the implication of the accused to the alleged
offence of gang rape. There is evidence on record that there
was no injury on the breast or the thighs of the prosecutrix
and only a minor abrasion on the right side neck below jaw
was noted while according to the prosecutrix’s original
version, the appellants had forcible sexual intercourse one
after the other against her. If that was so, it is hard to
believe that there was no other injury on the private parts of
the prosecutrix as highlighted in the said decision. When on
the face value the evidence is found to be defective, the
attendant circumstances and other evidence have to be
necessarily examined to see whether the allegation of gang
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rape was true. Unfortunately, the version of the so called
eye witnesses to at least the initial part of the crime has not
supported the story of the prosecution. The attendant
circumstances also do not co-relate to the offence alleged
against the appellants. Therefore, in the absence of proper
corroboration of the prosecution version to the alleged
offence, it will be unsafe to sustain the case of the
prosecution.
25. In the decision reported as Krishan Kumar Malik v.
State of Haryana (supra) in respect of the offence of gang
rape under Section 376 (2) (g), IPC, it has been held as under
in paras 31 and 32:
“31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and
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deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant.”
(emphasis added)
26. Applying the said principles to the facts of the case on
hand, we find that the solitary version of the chief
examination of PW-4, the prosecutrix cannot be taken as
gospel truth for its face value and in the absence of any
other supporting evidence, there is no scope to sustain the
conviction and sentence imposed on the appellants.
27. The prosecution has miserably failed to establish the
guilt of gang rape falling under Section 376 (2) (g), IPC
against the appellants. The conviction and sentence imposed
on the appellants by the trial Court and confirmed by the
impugned order of the High Court cannot, therefore, be
sustained. The appeals are allowed. The judgment and
order of conviction and sentence passed by the trial Court
and confirmed by the High Court are hereby set aside. The
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appellants are acquitted of all the charges and they be set at
liberty forthwith, if not required in any other case.
…..……….…………………………...J. [Swatanter Kumar]
…………….……………………………… J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi; August 7, 2012
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