Criminal Appeal No.884 of 2011

14th November, 2014.

Petitioner Counsel: Mrs. FARHANA SHAH
Respondent Counsel: Mr. J.P. YAGNIK

Cases Cited:
State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 389 : AIR 1996 SC 1393 [Para 9,10]
State of Uttar Pradesh Vs. Choteylat, AIR 2011 SC 697 [Para 9]
Narender Kumar Vs. State (NCT of Delhi), 2012 ALL MR (Cri) 2400 (S.C.) =(2012) 7 SCC 171 [Para 10]
Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr., 2003 ALL MR (Cri) 612 (S.C.)=AIR 2003 SC 818 [Para 10]
Vishnu Vs. State of Maharashtra, 2006 ALL MR (Cri) 263 (S.C.) =AIR 2006 SC 508 [Para 10]
Suresh N. Bhusare & Ors. Vs. State of Maharashtra, (1999) 1 SCC 220 [Para 10]
Jai Krishna Mandal & Anr. Vs. State of Jharkhand, (2010) 14 SCC 534 [Para 10]
Rajoo & Ors. Vs. State of Madhya Pradesh, 2009 ALL SCR 1139 =AIR 2009 SC 858 [Para 10]
Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566 [Para 10]
State of Maharashtra & Anr. Vs. Madhukar Narayan Mardikar, AIR 1991 SC 207 [Para 10]
State of U.P. Vs. Pappu @ Yunus & Anr., 2005 ALL MR (Cri) 236 (S.C.) =AIR 2005 SC 1248 [Para 10]
Tukaram & Anr. Vs. The State of Maharashtra, AIR 1979 SC 185 [Para 10]
Uday Vs. State of Karnataka, 2003 ALL MR (Cri) 975 (S.C.) =AIR 2003 SC 1639 [Para 10]
Munna Vs. State of M.P., 2014 ALL SCR 3568=2014 STPL (Web) 610 SC [Para 11]

JUDGMENT

JUDGMENT :- The appellant herein has impugned the judgment dated 21st June, 2011 passed by the learned Assistant Sessions Judge, Greater Mumbai in Sessions Case No.645 of 2009, whereby he has been convicted for the offence punishable under Section 376 of the Indian Penal Code (for short 'IPC') and sentenced to undergo Rigorous Imprisonment for seven years with fine of Rs.5,000/- in default, to undergo further R.I. for 3 months. The fine amount, if deposited by the accused has been ordered to be paid to the prosecutrix towards the compensation.

2. Briefly stated the case of the prosecution is as follows: The prosecutrix, who is a married woman with two children, was residing in a room at Pathan Wadi, Aarey Road, Mumbai. The husband of the prosecutrix has been convicted in a murder case, and is undergoing imprisonment for life. The appellant (hereinafter referred to as the accused), is the brother-in-law of the prosecutrix. On 2nd August 2009 at about 12.30 a.m. the accused and one Daud, the juvenile offender, came to the room of the prosecutrix and requested her to permit them to stay in her room for a while as they were being chased by the police. Conceding to their request, the prosecutrix permitted them to take refuge in her room. She provided a pillow and a mat to the juvenile offender and prepared snacks and tea for the accused. It is alleged that while the prosecutrix was sitting on the bed, the accused placed a sickle on the chair and started molesting her. On being resisted, the accused threatened to kill her. The accused thereafter removed her clothes and raped her, while the juvenile offender, who was sitting near the door, watched the entire incident. The accused and the juvenile offender left the room threatening the prosecutrix not to disclose the incident to anyone.

3. Later in the morning, the prosecutrix phoned her parents. She also informed her brother-in-law and sister-in-law about the incident. Her parents came to her room at about 9.00 a.m. and took her to Rajewadi Hospital. PW-2 Dr. Priti Hatkar, Assistant Professor of Sion Hospital, examined the prosecutrix. PW-2 informed the Aarey Police Station that the prosecutrix was admitted in the hospital with the history of rape. On receipt of the said information, PW-4 PSI Ashok Salve visited the hospital and recorded the statement of the prosecutrix, at Exh.24 and registered the crime vide Crime No.273/09 under Section 376 r/w 34 of the I.P.C. against the accused and the juvenile offender.

4. The accused came to be arrested on 3rd August, 2009. The cloths of the accused were seized under panchanama at Exh.26 and he was referred to the hospital for medical examination. PW-4 visited the scene of offence on 4th August, 2009 and conducted the scene of the offence panchanma at Exh.25 and seized the bed sheet at article 'C'. Vide letters dated 06.08.2009 and 27.08.2009 at Exh.39 and 40, PW-4 forwarded the clothes of the prosecutrix and the material collected by the Medical Officer as well as the clothes of the accused and the bed-sheet recovered from the scene of offence to the Chemical Analyzer for examination.

5. On 5th August 2009 the accused volunteered to show the place wherein he had concealed the sickle. The said memorandum statement at Exh.37 was recorded in presence of panchas and pursuant to the said statement the sickle at Art. 'A' was recovered from bushes near the road at unit no.22 Powai Checknaka and the same was seized under panchanama at Exh.38. PW-4 recorded the statements of the witnesses and on completion of the investigation; he filed the charge sheet against the accused and the juvenile offender for committing offence punishable under Section 376 r/w 34 of the IPC.

6. On committal of the case, the learned Sessions judge conducted the inquiry under section 7A of Juvenile Justice Act and held Dawood to be a juvenile in conflict with law and directed filing of separate charge sheet against him before the Juvenile Justice Board.

7. Charge was framed and explained to the accused. The accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined five witnesses. The statement of the accused was recorded u/s 313 of the Cr.P.C. Upon appreciating the evidence on record and relying mainly on the evidence of the prosecutrix, the learned Sessions Judge held the accused guilty of offence under Section 376 of the IPC and awarded sentence as stated above. Aggrieved by the conviction and sentence, the accused has preferred this appeal.

8. Mrs. Farhan Shah, learned counsel for the accused has argued that the testimony of the prosecutrix was residing in a crowded locality. She had not raised an alarm even though her close relatives were residing in the neighbourhood. The medical evidence does not support the allegations of rape. There is considerable delay in lodging the complaint and in forwarding the clothes of the accused as well as bed sheet to the chemical analyser for analysis. Lnd. Counsel for the accused has further urged that the CA report does not establish that the semen stains detected on the said bed sheet are that of the accused. The conduct of the prosecutrix is unnatural and her testimony is not credible and trustworthy.

9. On the other hand, Learned APP for the State has argued that the prosectrix is not an accomplice and that conviction in rape cases can be based solely on the evidence of the prosecutrix without any corroboration. He has relied upon the judgments of the Apex Court in the case of State of Punjab Vs. Gurmit Singh, (1996) 2, SCC 389 and State of Uttar Pradesh Vs. Choteylat, AIR 2011 SC 697. He has further argued that the evidence of the prosecutrix proves that she was living in the hut along with her two minor children. The accused, who is related to her, had entered the hut in wee hours of the day and had committed rape under the threat to kill her. Learned APP has further argued that finding of semen stains on the bed sheet corroborates the case of the prosecutrix. The testimony of the prosecutrix is reliable and the negligence of the investigating officer, if any, cannot affect the credibility of the statement of the prosecutrix. The appeal lacks merit and is liable to be dismissed.

10. Before proceeding to examine the evidence on record and the impugned judgment, it would be advantageous to refer to the settled principles summarized by the Apex Court in the case of Narender Kumar Vs. State (NCT of Delhi) (2012) 7 SCC 171 : [2012 ALL MR (Cri) 2400 (S.C.)], which are as under.

"It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances,

Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.

A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge.

However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony".

However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 : [2003 ALL MR (Cri) 612 (S.C.)]; and Vishnu v. State of Maharashtra, AIR 2006 SC 508 : [2006 ALL MR (Cri) 263 (S.C.)]).

Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220)

In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held: "The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."

In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858 : [2009 ALL SCR 1139], this Court held 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 par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:

"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 cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication 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."

In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:

"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."

Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide: State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, AIR 1991 SC 207; State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248 : [2005 ALL MR (Cri) 236 (S.C.)]).

In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.

The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.

It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.

There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v. State of Karnataka, AIR 2003 SC 1639 : [2003 ALL MR (Cri) 975 (S.C.)]).

Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.

11. In the case of Munna versus state of M.P. 2014 STPL (Web) 610 SC : [2014 ALL SCR 3568], the Apex Court has reiterated these principles and has held that "while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of the prosecutrix in view of the statutory presumption under section 114A of the evidence Act, but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon.

12. The law on conviction in cases of rape on the basis of sole testimony of the prosecutrix is thus no longer res-integra. It is well settled that the prosecutrix is not an accomplice but a victim of crime. The evidence of the prosecutrix is at par with the evidence of an injured witness and if found to be credible and trustworthy would require no corroboration. The Courts would look for corroboration only in exceptional cases, when it finds it difficult to accept the version of the prosecutrix on its face value. Whether there was rape or not would ultimately depend on the facts and circumstances of each case.

13. Reverting to the facts of the present case, it is not in dispute that the PW-1 prosecutrix is a married woman with two children. Her husband has been convicted in a murder case and is undergoing sentence of life imprisonment. The prosecutrix and her two minor children were living in a room at Pathanwadi, Aarey Road. The prosecutrix has deposed that on 2nd August, 2009 at about 12.45 a.m. the accused and the juvenile offender, who are her brothers-in-law, came to her room and told her that they were being chased by the police and requested her to allow them to stay in her room for about 2 hours. The prosecutrix acceded to their request but permitted them to stay in her room only for about 15 to 20 minutes. The accused told her to give a pillow and a mat to the juvenile offender and further told her that he was hungry and requested her to prepare some snacks. Accordingly, she prepared tea and snacks for the accused and thereafter she sat on the cot. PW-1 has deposed that while she was sitting on the cot, the accused kept a sickle on the chair and thereafter he started fondling her thigh. When she resisted, the accused placed the sickle on her neck and threatened to slaughter her. PW-1 claims that she was scared and was speechless. The accused thereafter pushed her on the bed, removed her pajama, tore her underwear, and raped her, while the juvenile offender, who was sitting near the entrance door, watched the entire incident. The accused threatened her not to disclose the incident to anyone and left the room with the juvenile by about 4.30 a.m.

14. PW-1 has further stated that she had not raised an alarm when the accused had kept his hand on her thigh but had kept his hand aside as she felt that the accused being her brother-in-law, would not misbehave with her. She has further admitted that she had not raised an alarm even after the accused had kept the sickle aside. She has stated that the entire incident lasted for about half an hour and that the accused had remained in her room for about two hours after the incident of rape.

15. PW-1 has deposed that the room wherein the incident had occurred admeasures about 15 x 10 ft. and is located in a slum area. She has stated that the said room had a window without a wooden shutter or windowpanes. PW-1 has deposed that she has been residing in the said room since her marriage and that the aunt of her husband resides in front of her room while her sister-in-law resides in the adjoining room. She has further stated that her daughters who were 9 and 8 years of age were awake when the accused had entered the room and that they were watching the television. The prosecutrix has stated that the accused had stayed back in the room for about two hours after the incident.

16. The testimony of PW-1, therefore, clearly indicates that the incident had occurred in a small room located in a crowded locality, with the relatives of the prosecutrix residing in close proximity. The window of the room was open and the daughters of the prosecutrix were awake at the time of the incident. The accused was in the room of the accused for over two hours and there is no evidence to even remotely suggest that the prosecutrix was gagged or held captive at the point of knife during the entire period that the accused was in the room. The prosecutrix thus had sufficient time and opportunity to raise an alarm. However neither the prosecutrix nor her children had raised alarm drawing the attention of her relatives and the neighbours either during the incident or after the accused had left her room.

17. PW-1 has further deposed that later in the morning, she went to the PCO and called her parents. She also went to the house of her brother-in-law and narrated the incident to him and his wife. Her parents, brother, and sister came to her house at about 9.00 a.m. She disclosed the incident to her mother whereupon her mother took her to Rajawadi Hospital. The prosecutrix claims that her brother-in-law had narrated the incident to her father at Rajawadi hospital. She claims that she was admitted in the hospital for three days and that The police had visited the hospital and recorded the report at Exh. 24.

18. It is to be noted that in her cross-examination, the prosecutrix has admitted that she had not narrated the incident to her mother-in-law. She has stated that she had phoned her parents at about 6.30 am. The prosecutrix has admitted that she had not narrated the incident to her parents but had merely told them that the accused and Dawood had entered her room and tortured her. PW1 has further stated in her cross-examination that even when her mother visited her she had not narrated the incident to her and that her mother had thereafter gone to Mumbra. PW1 has deposed that her father and brother-in- law had accompanied her to the hospital.

19. The evidence of the prosecutrix as elicited in the cross examination is totally inconsistent and contrary to the statement made in the examination in chief. Moreover, the conduct of the prosecutrix in not raising an alarm and not narrating the incident to her mother even after her mother had visited her house is also highly unnatural. Furthermore, the prosecution has not examined the parents or the other family members to whom the prosecutrix had narrated the incident.

20. Be that as it may, the prosecutrix has stated that she was medically examined by a doctor on duty at Rajawadi hospital and that she had narrated the incident to the said doctor. She has further stated that PW-4 PSI Ashok Salvi had recorded her statement on the same day at Rajawadi hospital. She has stated that she had gone to the hospital in the same clothes and that the police had seized the said clothes. She has stated that she was admitted in the hospital for three days.

21. The testimony of PW-2 Dr. Priti Hatkar, Assistant Professor, Sion Hospital, indicates that the prosecutrix had come to the hospital on 2.08.2009 at about 3.00 p.m. and had given the history of rape on the same date at about 2.00 a.m. PW-2 had informed the police that PW-1 was admitted in the hospital with history of rape. Accordingly, PW-4 PI Salve visited the hospital and recorded the FIR at Exh. 24 at about 4.00 pm. It is also pertinent to note that though the parents, brother, sister and the brother-in-law of the prosecutrix had visited her at about 9 am, they had neither reported the incident to the police nor taken the prosecutrix to the hospital till about 2.30 to 3.00 pm. Furthermore, the prosecutrix has not explained the delay in approaching the police or in going to the hospital.

22. PW-2 has deposed that the prosecutrix had disclosed that she had not resisted since she was raped at the point of a knife. PW-2 has deposed that the prosecutrix had also disclosed that the accused had ejaculated outside the vagina. The testimony of PW-2 vis-à-vis the Medical Certificate at Exh. 31 colly. indicates that there were no external injuries on the face, neck, genitals or on any other part of the body of the prosecutrix. PW-2 has further deposed that there was no bleeding from the vagina of the prosecutrix. She has opined that the prosecutrix was habituated to sex and that no definite opinion could be given, the possibility of rape could not be ruled out. She has produced the medical certificate at Exh.31colly. PW-2 had collected vulval, vaginal, cervical, anal and oral swabs which were forwarded to the chemical analyzer vide letter at Exh.40. The CA Report at Exh.41 indicates that no semen was detected on vulval and vaginal swabs.

23. It is pertinent to note that the evidence of the prosecutrix is not consistent with the history given to PW-2. In her evidence before the court, the prosecutrix had categorically stated that she had struggled at the time of the incident. She had also not claimed that the accused had ejaculated outside the vagina. The findings of the medical officer and the chemical analyzer are therefore not consistent with the evidence of the prosecutrix.

24. PW-2 has deposed that the prosecutrix had come in the same clothes and that she had handed over the said clothes to the police. The clothes of the prosecutrix along with the other materials collected by PW2 were forwarded to CFSL for examination. The CA Report at Exh.42 states that the middle portion of the underwear (Ex.8) was stained with blood. The bloodstain had disintegrated and it was not possible to ascertain whether it was of human origin and the result of blood grouping was inconclusive. The CA report further indicates that a semen stain of human origin was detected on the said underwear but the grouping of the same was inconclusive.

25. It is pertinent to note that the prosecutrix has deposed that the accused had torn her underwear while disrobing her. There is nothing to suggest that the underwear at Exh 8 was torn or that the prosecutrix had washed the same before going to the hospital. Though PW-2 has deposed that she had handed over the clothes of the prosecutrix to the police, there is absolutely no evidence to prove that the said cloths were seized under panchanama and were kept in sealed condition till the time the same were forwarded to the chemical analyzer for examination. The prosecutrix is a married woman and there was no injury on her genitals and no bleeding in her vagina. There is no evidence to prove that the blood detected on the underwear was of human origin and was of the same group as that of the prosecutrix. Similarly, there is no evidence to prove that the semen detected on the underwear was of the same group as that of the accused. Hence finding of blood and semen stains on the underwear at Exh. 8 is not sufficient to link the accused with the crime.

26. The testimony of the Investigating Officer PW-4 PSI Ashok Salve indicates that he had seized a bed sheet from the scene of offence being the room of the prosecutrix. The prosecution has also relied upon the CA report at Exh. 41, which reveals that two semen stains of human origin were detected on the said bed sheet at Exh.1. It is to be noted that the FIR was registered on 02.08.2009, the accused was arrested on 03.08.2009 whereas the bed sheet at Article 'C' was seized under scene of offence panchanama on 04.08.2009. The said bed sheet was forwarded to CFSL on 27.08.2009.

27. There is unexplained delay in conducting the spot panchanama, seizing the bed sheet, and forwarding the same to the chemical analyzer for examination. There is no evidence to prove that the said bed sheet was sealed and that it was kept in sealed condition until it was forwarded to CFSL for examination. Furthermore, the CA report indicates that the blood grouping of the semen was inconclusive. In the light of aforesaid facts, finding of semen stains on the bed sheet at Article A-1 does not link the accused with the crime.

28. The prosecution has also relied upon the disclosure statement at Exh.38 pursuant to which the sickle at Article "A" was recovered under panchanama at Exh.38. PW-3 Babulal and PW-5 Mohd. Javed, the witnesses to the said recovery panchanama have not supported the prosecution case. Furthermore, mere recovery of the sickle is not an incriminating piece of evidence to hold the accused guilty of the offence of rape. Thus, having analyzed the testimony of the prosecutrix, it is evident that there are inherent discrepancies and contradictions in her testimony. The testimony of the prosecutrix does not satisfy the test of credibility and hence cannot be the basis of conviction.

29. Under the circumstances and in view of the discussion supra, the appeal is allowed and the conviction and sentence of the accused is hereby quashed and set aside. The accused is acquitted of the offence with which he was charged and convicted. Fine, if paid by the accused, be refunded.

Appeal allowed.