Shiva Pratap Singh vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 25
 
Case :- CRIMINAL APPEAL No. - 303 of 1990
 

 
Appellant :- Shiva Pratap Singh
 
Respondent :- State
 
Counsel for Appellant :- M.L. Syal,Abdul Rafey Siddiqui,Dhananjai Kumar Singh,H K Bhatt,Indresh Kumar Misra,M.B. Singh,Sangam Lal Pandey,Shishir Pradhan
 
Counsel for Respondent :- Govt. Advocate
 
Along with
 
Case :- CRIMINAL APPEAL No. - 305 of 1990
 

 
Appellant :- Iliyas
 
Respondent :- State
 
Counsel for Appellant :- I.H. Iraqi,Madhu Srivastava,S.B.Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Aditya Nath Mittal,J.

Heard learned counsel for the appellants, learned AGA for the State and perused the record.

Both these appeals have been preferred by the appellants against the judgment and order dated 17.05.1990, passed by the Additional & Sessions Judge, Hardoi in S.T.No.113 of 1990 by which the appellants have been convicted for the offences punishable under Sections 363, 368 and 376 I.P.C.

As per prosecution story, complainant Sheoram had lodged the report that when on 28.08.1989, he had gone to Rae Bareilly, at about 7.00 p.m. Km. Deviya and Km. Sunita went for call of nature. Appellants Shiva Pratap Singh @ Thakur, Hira Lal, Iliyas and Nandram came out of the 'Makka' maze plot, who were armed with guns and pistols. The appellants caught hold the daughter of the complainant Km Deviya, upon which Km. Sunita raised alarm and came back to her home who narrated the incidence to the family members of the complainant. Upon this information, Munai and Dewari came on the spot, who were also threatened for dire consequences, upon which they had also came back. Munai and Dewari went to the police out post and gave the information, then on the next day, the Incharge police station along with constable visited the house of appellant Shiv Pratap Singh and on the third day, appellant Hira Lal and Shiv Pratap Singh and others returned back the daughter of the complainant. The daughter of the complainant disclosed that all the four accused persons have forcibly committed rape with her. No First Information Report was lodged by the police. Then the application was given to the Superintendent of Police, Hardoi and upon whose direction the First Information Report was lodged. The victim was medically examined at Woman Hospital, Hardoi on 03.09.1989. Vaginal smear was also taken, but no spermatozoa was seen. X-ray report was also conducted in which her age was found to be 16 years. After submission of the charge-sheet, the appellants denied the charges and claimed trial.

The victim has been examined as P.W.1 who has supported the prosecution story and has stated that she was aged about 13 years. She has stated that the appellants came out of the maze field and forcibly took her near Jamun tree of the accused Shiv Pratap Singh. She has also stated that she was raped near Jamun tree, firstly by accused Shiv Pratap Singh then by three other accused persons and she was kept near Jamun tree upto mid night. She has further stated that she was brought to the 'Bangla' of accused Hira Lal and she was confined there for the whole day and whole night and she was again subjected to rape in the aforesaid 'Bangla' by all the four accused persons in the night.

Sheoram P.W.2 is the complainant who has narrated the facts of typed application and has also proved the typed application as Ext.Ka.1

Dr. S.K.Rastogi, Senior Radiologist P.W.3 has proved the x-ray report and x-ray plate as Ext.Ka.2 and material Ext.1.

Lady Dr. Nirarani has been examined as P.W.4 who has conducted the medical examination of the victim and she has proved the medical report Ext.Ka.3, Vaginal smear report as Ext.Ka.4 and supplementary report as Ext.Ka.5.

S.I.S. Jahirul Hasan P.W.5 has proved the investigation of the case and the formal paper of the prosecution.

Constable Rambabu Singh P.W.6 has proved the chick First Information Report as Ext.Ka.9 and copy of the G.D. as Ext.Ka.10 and 11.

In the statement under Section 313 Cr.P.C., the appellants have denied the prosecution evidence and have stated that they have been falsely implicated due to Pradhani election in which accused Hira Lal was also a candidate. It was also stated that Sardar who is the cousin of Sheoram had appeared as a witness against him in a case under Section 302 I.P.C., therefore, they have been falsely implicated. In the defence, the statement of Chhotey Lal, Record Keeper, Police Office, Hardoi has been recorded as D.W.1, who has stated that Munai and Dewari had not visited the police station Madhoganj on 28.08.1989 and the Incharge Daroga and Constable of police out post had also not visited the village in connection with the search of the girl.

After appreciating the evidence on record, learned Additional Sessions Judge, Hardoi came to the conclusion that the appellants are guilty for the aforesaid offences and accordingly convicted them by the judgment and order dated 17.05.1990.

Sri S.W.Zaman has filed Vakalatnama for all the appellants and has submitted that there are major contradictions in the statement of the victim and some new facts have also been stated in the statement on oath, which do not find place in the statement under Section 161 Cr.P.C. It has also been submitted that the victim has told the distance of 5-6 foots from where she was enticed away, but P.W.2 Sheoram has stated the distance as 70 foots. It has also been submitted that as per the statement of victim, she was dragged and thrown, but she has not received any injury. It has also been submitted that the victim has stated that it was 7.00 p.m. and was dark while in the month of August, the son sets at around 6.45 p.m., therefore, it can not be complete dark. It has also been submitted that as per statement of the victim, she has been raped twice within five hours by four persons, but there was not a single injury on the person of the victim. It has also been submitted that the victim has stated that the appellants were armed with deadly weapons, but no such recovery has been made. It has also been submitted that the victim has developed the story by saying that she was bleeding which was cleaned by the accused, but no such averment has been made in the statement under Section 161 Cr.P.C. or Section 164 Cr.P.C. It has also been submitted that no independent witness has been examined and the victim was habitual to sexual intercourse and no spermatozoa was seen, therefore, the alleged rape is not proved.

Learned counsel for the appellants has relied upon Dilip and another Vs. State of M.P. AIR 2001 SC 3049, in which Hon'ble the Apex Court has held as under:-

"8. The prosecution case rests solely on the testimony of prosecutrix. The prosecution has tried to seek corroboration from the testimony of PW.3, the maternal aunt of the prosecutrix to whom the prosecutrix narrated the incident soon after commission of rape o33n her. The medical evidence does not lend any positive corroboration to the testimony of the prosecutrix.

9. According to the prosecutrix she was wearing bangles, two in the left hand and one in the right hand and the three bangles were broken during rape committed on her. Both the accused had pressed her breasts which were painful. Blood had oozed out from her vagina consequent upon sexual intercourse by the accused persons. The site plan shows the house, where the prosecutrix was residing, as situated on the main road of the village. According to the prosecutrix she was in the open verandah wherefrom she was physically lifted by accused Mohan and taken inside the room. Though the prosecutrix had raised hue and cry but no one came to her rescue. She was forced to lie down on the floor. On being asked whether she offered any physical resistance to the act of the accused persons, the prosecutrix stated that because she was threatened with her life by the accused persons therefore she did not make any attempt at rescuing herself from the clutches of the accused persons. The fact stated by her in the court that the accused Dilip had thrust a piece of her saree in her mouth so as to disable her from raising any cry was not stated in the FIR and she was unable to explain this contradiction by omission. Soon after the incident, when she came out of her house, she had found many a persons moving to and fro on the main road opposite her house because that was a festival day. She stated that she never had sex at any time prior to the date of the incident and it was false to suggest that she was used to sexual life. The act of the accused persons had caused swelling on her private parts and the blood which had oozed out had stained her legs and the frock which she was wearing at the time of incident. The swelling and the blood stains were shown by her to Dr.(Mrs.) Jitpure. The prosecutrix stated that her underwear which was taken off by accused Mohan was not worn again by her. It was left behind lying in the house until it was seized by the police.

11. According to the maternal uncle of the prosecutrix who had accompanied her to lodge the FIR, the prosecutrix was wearing the same underwear and frock which she was wearing at the time of the incident and the same were seized by the police.

12. The law is well-settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. Vs. Gian Chand -, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This Court further held:

"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations..."

13. In Madan Gopal Kakkad Vs. Naval Dubey and Anr. - this Court has held (vide para 23) that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case medical evidence can be expected to be forthcoming."

Learned counsel for the appellants has further relied upon Radhu Vs. State of Madhya Pradesh 2007 (12) SCC 57, in which Hon'ble the Apex Court has held as under:-

"5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.

12. We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongful confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration.

15. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutrix was indebted to Radhu's father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai's father Mangilal was indebted to Radhu's father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt."

Learned A.G.A. has defended the impugned judgment and has submitted that the alleged contradictions are minor and they are not sufficient to create any doubt. It has also been submitted that the victim has stated the distance of five steps from the place from where she was enticed away, but the complainant has stated the distance of seventy steps which is regarding the place, to which she was kept. It has also been submitted that it might to possible that the appellants have concealed their weapons, therefore, the weapons could not be recovered. It has also been submitted that the victim stated the whole story in a very natural way and she was minor on the date of incident. It has also been submitted that there were no reason to falsely implicated the appellants for the said charges. Therefore, learned trial court has rightly convicted the appellants.

Learned A.G.A. has relied upon Sheikh Zakir vs. State of Bihar (1983) 4 SCC 10, in which Hon'ble the Apex Court has held as under:-

"The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non-production of a medical report would not be of much consequence if the other evidence on record is believable. It is, however, nobody's case that there was such a report and it had been withheld.

A reading of the deposition of the complainant shows that it has a ring of truth around it. Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. But the rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence. This rule of practice is based on human experience and is incorporated in illustration (b) to section 114 of the Indian Evidence Act which says that an accomplice is unworthy of credit unless he is corroborated in material particulars.

... But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown up and married woman it is always safe to insist on such corroboration. Wherever corroboration is necessary it should be from an independent source but it is not necessary that every part of the evidence of the victim should be confirmed in very detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both..."

Learned A.G.A. has also relied upon Balwant Singh Vs. State of Punjab 1987 SC 1081, in which Hon'ble the Apex Court has held as under:-

"Lastly, it is submitted by the learned counsel for the appellants that the absence of any injury on the back of the prosecutrix or any part of her body falsifies the case of rape by the appellants on her. It is submitted that the prosecutrix was expected to offer resistance which would normally cause certain injury on her body an particularly on the back. As there was no such injury, it should be held that there was no such incident as alleged. This argument, in our opinion, is devoid of merit. It cannot be said that whenever resistance is offered there must be some injury on the body of the victim. The appellants were four in number and the prosecutrix being a girl of 19/20 years of age, she was not expected to offer such resistance as would cause injuries to her body. It is also not correct to say that there was no injury at all."

Learned A.G.A. has further relied upon Promod Mahto Vs. State of Bihar AIR 1989 SC 1475, in which Hon'ble the Apex Court has held as under:-

"9. Mr. A.K. Sen, learned Senior advocate appearing for the appellants, sought leave to canvass the conviction of the appellants on its merits and contended that the case has been foisted on the appellants due to communal feelings, that there has been inordinate delay in lodging the First Information Report and that the prosecution case that the appellants had committed rape in succession on a plurality of victims is a biological impossibility and hence the prosecution case is wholly unworthy of acceptance. We found no merit in those contentions because even if communal feelings had run high, it is inconceivable that an unmarried girl and two married women would go to the extent of staking their reputation and future in order to falsely set up a case of rape on them for the sake of communal interests. As regards the delay in lodging the first information report, the Sessions Judge and the High Court have considered the matter fully and held that the delay has been satisfactorily explained and we found no reason to differ from the view taken by the Sessions Judge and the High Court. In so far as the last contention is concerned, we found that the defence has not been able to explain how else PW 1 Jaiboon Nisa, an unmarried girl aged about 15 or 16 years, could have come to sustain the telltale marks and injuries of rape on her person as were found by PW 1 Dr. Abha Singh unless she had been raped by the appellants. Once it is established that the appellants had acted in concert and entered the house of the victims and thereafter raped PW 1 Jaiboon Nisa, then all of them would be guilty under Section 376 IPC in terms of Explanation I to Clause (g) of Sub-section (2) of Section 376 IPC irrespective of whether she had been raped by one or more them. The Explanation in question reads as under :

Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."

Learned A.G.A. has also relied upon State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, in which Hon'ble the Apex Court has held as under:-

"16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accept- ed. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."

With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.

26. The absence of marks of physical violence on the prosecutrix is not surprising. According to her the respondent had slapped her and threatened her with dire consequences when she tried to resist him on both occasions. Since she was examined almost 24 hours after the event it would be too much to expect slap marks on her person. It is, however, true that according to PW 12 Dr. More there were no marks of injury on the body of the respondent when he was examined on the 22nd itself at about 8.45 p.m. While it is true that the version of the prosecutrix is that she had tried to resist him, it must be realised that the respondent being a strong man was able to overpower her and take her by force. Be- sides, he was a man in authority in police uniform. The prosecutrix was alone and helpless. In the circumstances as pointed out earlier the resistance would be considerably dampened. But the evidence of PW 12 Dr. More who examined the respondent on the 22nd at 8.45 p.m. reveals that he had noticed (i) absence of smegma around the glans penis and (ii) the frenum tortuous and edematous. indicative of the respondent having had sexual intercourse within the preceding 24 hours. However, absence of marks of violence and absence of matting of pubic hair led the witness to state that no definite opinion could be given whether or not the respondent had sexual intercourse in the last 24 hours. In cross-examination an attempt was made to show that smegma may be absent in a man with clean habits; that the frenum may be edematous if there is friction with rough cloth and tortuousness of the frenum could be due to anything that causes swelling of the skin. The witness, however, said that he had not seen marks of itching thereby negativing the suggestion. Be that as it may, the evidence of this witness does show that there was evidence suggesting the possibility of the respondent having had sexual intercourse within the preceding 24 hours although the witness could not hazard a definite opinion. Therefore, the non-committal opinion of this witness cannot be said to run counter to the evidence of the prosecutrix. It may be that the evidence as to resistence may have been overstated, a tendency which is generally noticed in such cases arising out a fear of being misunderstood by the society. That is not to say that she was in any way a consenting party. She was the victim of brute force and the lust of the respondent."

Learned A.G.A. Has further relied upon Lakhan vs. State of U.P., [2013 (83) ACC 416], in which the reference of Hon'ble the Apex Court in the case of State of Karnataka vs. Muniyappa and others 1994 (5) SCC 728 has been given as follows:-

"It was never elicited from the prosecutrix as to whether the two persons who committed rape on her had reached orgasm emitting semen in her private parts. No presumption can be made that penetration of penis in the private parts of a rape victim must necessarily lead to the discovery of spermatozoa. It is a question of detail and has to be put to test by cross-examination. Otherwise also there may be various other factors which may negative the presence of spermatozoa such as faulty taking of the smear, its preservation, quality of semen etc. The absence of spermatozoa prima facie could not be allowed to tell against the version of the prosecutrix."

Admittedly, Sheoram P.W.2 is not the witness of kidnapping because as per the First Information Report as well as his statement, he was not present on the spot at the time of kidnapping and he had gone to Rae Bareilly. But upon the information of his son, he had came back to his village and had tried to lodge the report and after getting it typed, the report was lodged. In the statement in the Chief, this witness has proved the report as Ext.Ka.1 and has stated that his daughter was medically examined and he was told about the incident by his daughter and Munai. This witness has been cross-examined at length regarding the enmity on the point of election of Pradhani.

It is stated in the report itself that the victim and her sister Km. Sunita had gone for call of nature and when the appellants had enticed away the victim, Km. Sunita had came back to her home and told the story to Munai and Dewari who are her brothers. It has also been stated that Munai and Dewari had came with torch near the Jamun tree, but upon the intimidation of accused Shiv Pratap Singh, they had came back to home. It is noteworthy to mention that none of these persons have been examined in the court. Certainly, Km. Sunita was the important witness of alleged kidnapping and Munai and Dewari were also the important witnesses who had seen the victim in the possession of the appellants. No explanation has been given as to why these witnesses have not been examined in the court. Therefore, the presumption under Section 114 Evidence Act has to be drawn against the prosecution that had these witnesses examined, they would have not supported the prosecution case. Regarding the alleged kidnapping, wrongful confinement as well as rape with the victim, there is only the statement of the victim, which has to be scrutinized very carefully. Before scrutinizing the statement of the victim, it is also relevant to mention that the statement of Chhotey Lal, Record Keeper, D.W.1 who has stated that Munai and Dewari had not gone to lodge the report on 28.08.1989 as alleged by the complainant Sheoram P.W.2. This witness has also stated that by seeing the G.D. of 29 and 30.08.1989, it appears that the Incharge Daroga or any Constable had not gone to the village in connection with the search of the alleged victim. This witness has further stated that there was no entry in the G.D. which shows that on 30.08.1989, the daughter of the complainant and Hira Lal had came to police out post Kursath. This witness Chhotey Lal is the Record Keeper of the Police Office, Hardoi who has given his statement as per the record of G.D. maintained at police out post Kursath. In these backdrops of facts and circumstances, the statement of the victim is being examined.

It is true that the victim has told that the appellants were having gun and country made pistol, but no such arms have been recovered from their possession. The victim has stated that she was recovered from 'Bangla' of Hira Lal from where she was brought to police out post Kursath along with Hira Lal and she had stated the incident to Sub Inspector. She has also stated that at the police out post Kursath her brother Munai had also came, but her report was not lodged and she was made free at about 9.00 p.m. from where she had gone with her brother. She has also stated that when she had came back along with her brother, her father was not at the house and he had gone to Rae Bareilly and his brother Dewari had gone to call him. She has also stated in her cross-examination that she was dragged at the time of kidnapping and she had also fallen down, but as per medical examination report, she has not received any such injury on her back or any other part of the body. She has stated that after alleged kidnapping, immediately her brother Munai and Dewari had came and at that time it was dark. Certainly, in the month of August, at 7.00 p.m., it can not be so dark as has been stated by the victim. She has stated that the accused persons had committed rape with her till 12 in the night, but nobody had came on the spot. The incident has taken place in the village, but till the recovery of the victim, no independent witness except the brothers and sister of the victim has been found. It appears to be very improbable that when Km. Sunita, Munai and Dewari (brothers) had seen the appellants enticing away the victim, then why any villager had not came for their rescue. The victim has also stated in her statement that her father had came back on the third day and then her father had tried to lodge the report. She has also stated in her statement that before reaching Antariya, the accused persons had returned their ammunitions. In para-27 of her statement, she has stated that Shiv Pratap Singh and Hira Lal only had enticed away and near the field of Pandit, the gun and country-made pistol was returned. She has not stated as to whom the alleged gun and country-made pistol were returned. It is also admitted fact that the 'Salwar' which she was wearing, has not been taken into custody and was not sent for chemical examination. The alleged fact of bleeding has also been developed by the victim in her statement which do not find any place in the statement under Section 161 Cr.P.C.

The victim has admitted in her statement that she and her family are residing on the land provided by accused Shiv Pratap Singh and there is partibandi between Shiv Pratap Singh and Deep Singh. She has also admitted that all the accused persons belonged to the party of Shiv Pratap Singh. She has also admitted that before the said incident, the accused persons had never tried to outrage her modesty. She has also admitted in her cross-examination that she had received injuries on various places and swelling also. She has also admitted that before this incident, she was not subjected to intercourse by anybody. All these facts are against the medical examination report because as per statement of Dr. Nirarani P.W.4, the victim was habitual of sexual intercourse and there were no external or internal injury on the person of the victim. In the cross-examination, this witness had admitted that if four persons commit rape with a vargin girl, then some marks are liable to come on the private parts of the body, but it is not necessary that there should be some injury also. She has further admitted in her cross-examination that there were no marks of injury on the back of the victim while as per the statement of the victim, she was dragged and was also thrown away.

Sheoram P.W.2 is the complainant and he had admitted in the Examination-in-Chief that he had gone to Hardoi Court, where he has stated the incident to Munsiji who had got typed the report. This witness has admitted in his cross-examination that Deep Singh is Pradhan of the village and the land of which he is residing belongs to Shukla Pandit, which has now been acquired by Deep Singh. This statement is in contradictions with the statement of victim. This witness has also admitted that he had told the incident to Deep Singh, Pradhan and to villagers also, but this witness has not stated their names. This witness has also admitted that accused Hira Lal had contested election against Deep Singh and all the accused persons, namely, Shiv Pratap, Iliyas, Nandram and Hira Lal belonged to one party. From the statement of Sheoram P.W.2, it appears that he is concealing some material facts in his cross-examination and telling that Kamal Laksha is the member of the Gaon-Sabha or not. This witness was suggested that Kamal Laksha is the Buwa (aunty) of Deep Singh, who had also implicated all the accused persons and sending to jail. This witness has also concealed the fact that liyakat is the brother of the Iliyas or not. Admittedly, the accused persons belonged to the village of the complainant, where he is residing since last 50 years and it can not be believed that a person who is residing in the village for the last 50 years as admitted by him in his cross-examination, will not know the names of his fellow villagers. There are other material contradictions in the statement of complainant Sheoram P.W.2 and it appears that a false story has been concocted due to partibandi regarding election of Pradhani. This complainant Sheoram has failed to state that whether brother of Shiv Pratap Singh and Hira Lal has contested the election against Deep Singh or not. This witness has also tried to conceal certain other facts.

There is also delay in lodging the First Information Report and it appears that the report has been lodged at the instance of opponent of the appellants. It is also not proved that the complainant had gone to the police station to lodge the report and the victim was recovered along with appellant Hira Lal.

From the aforesaid discussions, it appears that the victim was kidnapped and was kept in the same village, but no villager has come forward to rescue the victim while as per the victim herself, her sister and brothers had seen them at the time of incident. It is not probable that a girl is being kidnapped from the village and the villagers will not come for rescue. The brothers and sister of the victim have also not been examined in the court, therefore, an adverse inference has to be taken against the prosecution. As per prosecution story, the victim was kept in the same village and was recovered by the police along with Hira Lal and was taken to the police out post Kursath, but as per the statement of Chhotey Lal, Record Keeper D.W.I, neither Munai and Dewari had came to the police out post Kursath and nor Hira Lal along with victim was brought to the police out post. It also appears to be improbable that four young persons will rape the victim, who are also the residents of the same village and the victim will not resist and will not try to escape from their custody. Admittedly, no injury on the body has been found. Therefore, the alleged story of rape appears to be doubtful. The victim has stated in her statement that she was not subjected to intercourse prior to the incident, but in the medical examination, her hymen has been found to be old torn and she has been found to be habitual of sexual intercourse. No doubt, the conviction can be based on the sole testimony of the prosecutrix, but in view of State of H.P. vs. Gyan Chand referred in Dilip and another Vs. State of M.P. (supra), it should be corroborated by medical evidence and other circumstances. For convicting the accused persons the sole testimony of the victim should be found to be natural, trust worthy and worth being reliable, but in the present case, the statement of the victim is not corroborated by the medical evidence and the other circumstances. The evidence of the prosecutrix in the present case is full of discrepancies and does not inspire confidence and adverse inference has also to be drawn against the prosecution for not examining the witnesses who had seen the alleged incident of kidnapping. It appears that the victim and her father are deposing against the appellants due to partibandi and enmity of Pradhani election, which has also been stated in the statement under Section 313 Cr.P.C.

For the facts and circumstances mentioned above, the prosecution has failed to establish the guilt of the appellants for the said offences beyond reasonable doubts. The findings recorded by the learned Additional Sessions Judge, Hardoi are perverse and the appreciation of evidence has not been done properly. Accordingly, both the appeals deserve to be allowed.

Both the appeals are allowed. The conviction of the appellants for the offences punishable under Sections 363, 368 and 376 I.P.C. is set aside. The appellants are on bail. They need not surrender.

Office is directed to send the certified copy of this order to the trial court concerned along with the lower court record at an early date.

Order Date :- 25.3.2014

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