Allahabad High Court
Jitendra Kumar Kushwaha vs State Of U.P. on 29 May, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on 19.5.2025
Judgment Delivered on 29.5.2025
Neutral Citation No. - 2025:AHC:92245-DB
Court No. - 45
Case :- CRIMINAL APPEAL No. - 1571 of 2014
Appellant :- Jitendra Kumar Kushwaha
Respondent :- State of U.P.
Counsel for Appellant :- Amrish Sahai,Santosh Kumar Giri
Counsel for Respondent :- Jitendra Prasad Kushwaha,Vinod Kumar Maurya
and
Case :- CRIMINAL APPEAL No. - 1004 of 2014
Appellant :- Vijay Kumar Maurya
Respondent :- State of U.P.
Counsel for Appellant :- Ashok Bhatnagar,Ramanand Gupta
Counsel for Respondent :- N.D.Shukla
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Sandeep Jain,J.
1. Heard Sri Santosh Kumar Giri and Sri Hemant Kumar Srivastava, learned counsel for the appellants, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and Sri Vinod Kumar Maurya, learned counsel for the informant.
2. Present criminal appeals (two) arise from the judgment and order dated 20.02.2014 passed by Shri Santosh Kumar Srivastava, learned Additional Sessions Judge, Court no.12, Allahabad, in S.T. No. 368/2010 (State vs Jitendra Kumar Kushwaha & Anr.), arising out of Case Crime No. 197 of 2009, Police Station Mutthiganj, District Allahabad whereby both appellants Jitendra Kumar Kushwaha and Vijay Kumar Maurya have been convicted under Section 376(2)(g) I.P.C. and sentenced to undergo life imprisonment for the offence Section 376(2)(g) I.P.C. and to pay fine of Rs. 10,000/-, in default to further undergo additional imprisonment of one year.
3. The prosecution story emerged on the F.I.R. dated 25.09.2009 lodged by 'S' (P.W.-1 at the trial) who is the elder brother of the victim 'N' (P.W.-2 at the trial) lodged in Case Crime No. 197 of 2009, Police Station Mutthiganj, District Allahabad. Earlier, it was narrated, at the relevant time, 'N' was residing with her elder sister 'NT' since 01.06.2009 to help as the latter was in the family way. On 03.06.2009, 'N' had gone to seek 'darshan' at Kalibari temple in the evening, but suddenly went missing. She neither returned to her sister nor to her village. Thus, ten days after the occurrence, 'S' submitted a missing person report, on 14.06.2009. It is Ex.Ka-1 at the trial. In that, he further described that 'N' was about 20 years of age. She had curly hair. Nail of her right thumb was broken. At the time of disappearance, she was wearing a blue jeans pant, white shirt and a pair of black sandals. She was 5 feet and 2 inches tall.
4. Three months thereafter, the F.I.R. was lodged, on 25.09.2009. The F.I.R. is Ex.Ka-4 at the trial. That F.I.R. arose on the Written Report submitted by 'S', on 25.09.2009. It is Ex.Ka-2 at the trial. In that report, 'S' narrated that 'N' had lived with 'NT' from 01.06.2009 to 03.06.2009. On 03.06.2019, she went missing from Kothaparcha area. 'S' searched for 'N', but could not trace her. On inquiring, he learnt, she had been enticed for solemnizing marriage with her, by the appellants Jitendra Kumar Kushwaha & Vijay Kumar Maurya along with the third accused Dheeraj Kumar Kushwaha. Thus, 'N' eloped with the accused persons under their undue influence. Age of 'N' was disclosed about 17 years.
5. On 26.09.2009, 'N' was recovered from a place near Old Yamuna Bridge, Allahabad on the city side. At the time of recovery, the appellants were arrested.
6. On 26.09.2009, Dr. Vandana Srivastava (P.W.-4 at the trial) examined 'N' for injuries. As to the external and internal injuries, she reported as below:
"No marks of any injury anywhere on the body. Pubic hair and breast tissue well developed.
No marks of any injury anywhere on the private parts. Vagina admitting 2 fingers with ease. Hymen absent. Cervix palpable. Vaginal smears drawn."
7. Also, on 29.09.2009, 'N' was subjected to radiological examination to determine her age. Her radiological age was opined to be 19 years or above by Dr. V.K. Sahu. Also, on 29.09.2009, a pathological report was prepared by Dr. Ravindra Singh, at Women Hospital, Allahabad, wherein vaginal smear of 'N' resulted in negative report (for the presence of spermatazoa). Dr. Vandana Srivastava (P.W.-4) furnished an indefinite opinion as to commission of rape. Her medical opinion reads as below:
"No definite opinion regarding rape can be given though the girl 'N' is habituated of sexual intercourse. Final opinion regarding age to be given by radiologist."
The medico-legal report of 'N' is dated 26.09.2009. It is Ex.Ka-5 at the trial. It was duly proven by Dr. Vandana Srivastava (P.W.-4).
8. Seventeen days after her recovery, during which time 'N' had stayed with her maternal family, for the first time, her statement under Section 164 Cr.P.C. was recorded. In that, she narrated, she was 19 years of age and had come to visit her sister 'NT' on 01.06.2009, who was expecting delivery of a child. On 03.06.2009, she had gone to seek 'darshan' at the Kalibari temple. While returning from the temple, near Ram Krishna Library, she met up with both the appellants Jitendra Kumar Kushwaha & Vijay Kumar Maurya as also the co-accused Dheeraj, at around 9:30 PM. They threatened her and thus forced her to keep quiet and forced her into a shared taxi vehicle. Other persons were also present in that taxi, at that time. However, she did not make any further disclosure as to the identity of other persons or of any role played by them in her abduction or any other or further occurrence. Thus, allegedly, the appellants along with their accomplice Dheeraj took 'N' to a room at an unknown place and locked her there. All three committed rape on her, upon threatening her. 'N' was petrified and was unable to leave that room. She also could not call any one on her (mobile) phone as that had been snatched from her. On 26.09.2009, while the accused were intending to take her to some other place, she was saved by her brother, her brother-in-law and the police. She was a student of B.A. II year, at that time. That statement made under Section 164 Cr.P.C. was proven by 'N'. It is also marked as Ex.Ka-4 at the trial.
9. Upon completion of the investigation, the Investigating Officer Uma Shankar Yadav (P.W.-5 at the trial) submitted the chargesheet.
10. Upon the trial being committed to the Court of Sessions, the learned court below framed the following five charges :
"प्रथम :- यह कि दिनांक 3.6.09 को किसी समय cgn~ मोहल्ला कोठा पार्चा थाना मुट्ठीगंज जनपद इलाहाबाद से आप लोगो ने वादी 'S' की बहन 'N' को उसकी सहमति के बिना डरा धमकाकर बहला फुसलाकर भगा ले गये । इस प्रकार आप लोगों ने भा.द.वि. की धारा 363 के अन्तर्गत दण्डनीय अपराध कारित किया जो इस न्यायालय के प्रसंज्ञान में है।
द्वितीय :- यह कि उपरोक्त दिनांक समय व स्थान पर आप लोगों ने वादी 'S' की बहन 'N' का अपहरण उसकी इच्छा के विरूद्ध शादी करने व अयुक्त सम्भोग करने के लिए अज्ञात स्थान पर छिपाकर रखा। इस प्रकार आप लागो ने भा.द.वि. की धारा 366 के अन्तर्गत दण्डनीय अपराध कारित किया जो इस न्यायालय के प्रसंज्ञान में है।
तृतीय :- यह कि उपरोक्त दिनांक समय व स्थान पर आप लोगो ने वादी 'S' की बहन 'N' को Hkn~nh Hkn~nhगालिया देकर अपमानित किया । इस प्रकार आप लोगों ने भा.द.स. की धारा 504 के अन्तर्गत दण्डनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है।
चतुर्थ :- यह कि उपरोक्त दिनांक समय व स्थान पर आप लागों ने वादी 'S' की बहन 'N' को जान से मारने की धमकी दिया। इस प्रकार आप लोगों ने भा.द.वि. की धारा 506 के अन्तर्गत दण्डनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है।
पंचम :- यह कि उपरोक्त दिनांक समय व स्थान पर आप लोगों ने वादी 'S' की बहन 'N' को बहला फुसला कर एव डरा धमकाकर उसकी इच्छा के विरूद्ध जबरन उसके साथ सामूहिक रूप से बारी बारी बलात्कार किया । इस प्रकार आप लोगों ने भा.द.स. की धारा 376(जी) के अन्तर्गत दण्डनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है।"
11. At the trial, besides the above documentary evidence, the prosecution led oral evidence of five witness. 'S' was examined as P.W.-1. He is not an eye-witness of the occurrence. He proved the F.I.R. and the facts narrated therein. He proved the missing person report on 14.06.2009 Paper No. 5-Kha/2 as Ex.Ka-1. He further proved that on making subsequent enquiries, he learnt that the appellants had caused the disappearance on 'N' on promise of marriage. He proved the Written Report submitted by him on 25.09.2009, as Ex.Ka-2. He proved that the police acted on the F.I.R. and traced out and apprehended the appellants Jitendra Kumar Kushwaha & Vijay Kumar Maurya along with their accomplice Dheeraj while they were attempting to take 'N' to another place. He also proved the fact of medical examination etc. to which 'N' was subjected after her recovery.
12. During his cross-examination, 'S' admitted, he was also a resident of Naini, Allahabad and that he along with 'N' used to live with their parents, while 'N' was pursuing her graduation studies at Maa Gayatri College, Naini, Allahabad. The appellant Jitendra was described as a cousin being uncle's son. As to the appellant Vijay and the co-accused Dheeraj, he did not claim blood relationship with them.
13. He further stated, 'N' had gone to temple situated at about 100 metres from the house of 'NT' of her own, on 01.06.2009. He learnt on 03.06.2009 at about 9:00 - 9:30 p.m. that 'N' was missing. He also searched for 'N' at the temple and also at the residence of his relatives. He came to know about the appellants' involvement on 25.09.2009 at about 8:00 - 9:00 a.m. As to the delay in lodging the missing person report, he narrated, first, efforts were made by him to trace out 'N' and later report was made. He also disclosed, while 'N' remained missing, he had visited the house of the appellant Jitendra Kumar Kushwaha but could not meet him and that he tried to enquire from the accused persons the whereabouts of 'N' by calling them on phone. They did not share with him the correct facts and they had switched off their phones after one call. 'S' further deposed, during his cross-examination, he and the accused Jitendra used to visit each other's house. Police was present at the road crossing near the temple. 'N' neither told him that she raised alarm nor told him that she saw accused persons near the temple. He also disclosed the date of birth of 'N' as 15.06.1990 on the basis of her High School examination certificate.
14. As to the recovery of 'N', he claimed that the police required him and his brother-in-law to accompany them on 26.09.2009 at 10:00-10:30 a.m. In that effort made by the police, 'N' was recovered and the appellants arrested at 10:55 a.m. He further admitted that at the time of 'N' being recovered, she was standing near the Old Yamuna Bridge. People were walking by her as also some were standing near her. Nobody was holding 'N' at that time. He could not say if any of the appellants was armed at that time. He also admitted that the F.I.R. was lodged on his dictation. He denied suggestions that his family members wanted the accused Dheeraj to marry 'N' and that the F.I.R. came to be lodged only because of the family of the present appellants Jitendra Kumar Kushwaha and Vijay Kumar Maurya was opposed to such marriage.
15. Thereafter 'N' was examined as P.W.-2. During her examination-in-chief, she narrated, she had gone to her sister 'NT' on 01.06.2009 as the latter was in the family way. On 03.06.2009, she had gone alone to seek 'darshan' at Kalibari Temple at about 08:00 to 08:30 P.M. While returning from that temple at around 09:30 P.M., she met the appellants Jitendra Kumar Kushwaha & Vijay Kumar Maurya along with other accused Dheeraj near Ram Krishna Library. She described the appellant Jitendra and the accused Dheeraj as her relatives and the appellant Vijay as their friend. They took her to a desolate place, hurled verbal abuses at her and also warned her to not raise any alarm. At that juncture, a tempo arrived. The appellants and their accomplice forced her to travel in that tempo and took her to a room at an unknown place and locked her there. They committed rape on her. While one person would always keep watch, the other would commit rape on her. They also used to misbehave with her. During her stay, at that room, she could neither leave that room nor escape therefrom. On 26.09.2009 while the appellants and their accomplice sought to take 'N' to another place, the police action intervened and she was rescued from near the Old Yamuna Bridge. She proved her previous statement under Section 164 Cr.P.C. as Ex.Ka-4.
16. During her cross-examination, she could not recall the time for which she travelled in the tempo, upon her abduction on 03.06.2009. She also could not recall the distance that she may have travelled on that tempo, in that circumstance. She could not disclose the time when she may have reached the room where she was confined. She also could not recall if that room was in a village or in the city. However, she added, there was a toilet attached to that room. She could not recall if there were any other rooms or if the construction was a single storied or double storied. These facts she could not recall. Though she specifically admitted that she had not been blindfolded and she stayed at that place for three months, no one else visited that room, during that long period of time. She ate what the appellants and the accused Dheeraj offered her. Though she claimed to have been threatened and even assaulted, she admitted that she had not received any injury. Yet, she maintained that the appellants committed rape on her, one at a time, such that the other two would go out of the room while the third would commit rape. She denied having made any effort to resist such assaults i.e. repeated rape, for over three months. As to the time when she was recovered, she again could not disclose, for how much time she travelled in a taxi vehicle before she reached the Old Yamuna Bridge from where she was recovered by the police. She could not describe any place or area through which the vehicle may have passed, to reach there. She also could not tell if the vehicle had crossed the Old Yamuna Bridge.
17. She admitted that upon her recovery, she stayed at the Mahila Thana for one day and thereafter with her sister 'NT' for the next 10-15 days. She did not go back to her parents house in the meantime. She went to Court after 15 days. She denied the suggestion that her marriage was being fixed with the accused Dheeraj and that the F.I.R. came to be lodged because that marriage proposal failed. To a query put by the Court, she denied that she had gone with the appellants of her own free will and insisted that she had been abducted and raped by all the accused persons.
18. Thereafter, Head Constable Ramesh Kumar was examined as P.W.-3. He proved the registration of Case Crime No. 197 of 2009 under Sections 363, 366 IPC.
19. Dr. Smt. Vandana Srivastava was examined as P.W.-4. She proved that there was no external injury noted on the body of 'N'. She also proved that there was no mark of any injury on the private parts of 'N'. Her hymen was torn. She further proved that no definite opinion could be expressed with respect to the commission of rape, as 'N' was sexually active.
20. Thereafter, the Investigating Officer Uma Shanker Yadav was examined as P.W.-5. He proved the investigation.
21. Next, the statement of the appellants were recorded under Section 313 Cr.P.C. They denied adverse circumstances reported against them. The appellant Jitendra Kumar Kushwaha disclosed, he was arrested while he was appearing at an examination. Both the appellants stated that they had been falsely implicated.
22. Submission of learned counsel for the appellants is, there was no real occurrence. The prosecution story is imaginary and unfounded. Referring to the evidence led by the prosecution, it has been submitted, inherently improbable and ridiculous version of events has been narrated. 'N' being more than 19 years of age on the date of occurrence, she had voluntarily formed a relationship with the appellant-Vijay Kumar Maurya. In any case, the prosecution failed to prove the occurrence of abduction and of rape. Delay in lodging the missing person report as also the F.I.R. have also been cited as clear indicators that the prosecution story is patently false. Only after the relations between the parties had fallen apart, the F.I.R. came to be lodged almost three months after the alleged disappearance of 'N'. No police action was taken during that long period. Further, the statement under Section 164 Cr.P.C. was recorded fourteen days after the alleged recovery. During that period, 'N' stayed with her parental family. In such circumstances, she came to make a wholly false case. No part of her deposition made to the learned court below is worthy of any trust as it is bereft of essential material details. It does not inspire any confidence.
23. On the other hand, learned A.G.A. would submit, insofar as the victim 'N' has duly supported the prosecution story and proven the occurrences of abduction and rape, clearly identifying the accused, whom she knew from before, the learned court below has rightly convicted the appellants for committing gang rape of 'N'.
24. Having heard learned counsel for the parties and having perused the record, in the first place, it is an undisputed fact that the victim 'N' was 19 years of age on the date of occurrence. Clearly, she had attained the age of majority. She was enabled in law to make her choices. Second, it was claimed by 'N' that she was abducted and confined over a duration of time extending to three months. That part of her story does not inspire confidence. In the first place, she a student of graduation was staying with her sister, at the time of occurrence, on 03.06.2009. She was not accompanied by any of her family members, at that time. Yet, she proved the presence of a large number of people on the street as she was returning from a temple situated about 100 meters away from her sister's residence, on foot. It is in those admitted facts, 'N' narrated that the present appellants forced her to board a tempo at around 9:30 P.M., on 03.06.2009. In that, she did not narrate, she was gagged or forcibly made to sit inside that tempo or that occurrence took place in a manner wherein she may either have been threatened on the strength of any firearm or any deadly weapon to not raise alarm or that she was otherwise prevented from resisting the abduction or raising alarm. Surprisingly, 'N' further admitted that the tempo was driven by a fourth person. Clearly, the prosecution did not describe, the tempo driver as an accomplice of the present appellants. The prosecution did not attempt to prove that case. Therefore, it is surprising that 'N' did not utter a word and did not make any effort to sound the said tempo driver that she was being abducted in his vehicle and it is also surprising that 'N' did not seek any help from that person though she was not facing any threat to her safety and life at that time. Thus, to begin, 'N' has offered a wholly unnatural and imprudent conduct. It leads us to look at the prosecution evidence cautiously.
25. First, it may be noted that 'N' went missing on 03.06.2019, yet no missing person report came to be lodged, immediately. According to 'S' he first disclosed to the police that 'N' had gone missing, on 14.06.2009 i.e. more than 10 days after the occurrence. In the meantime, he also claimed that he had called the police as he suspected the appellant-Jitendra Kumar Kushwaha had caused that occurrence. Though the appellants did not offer a satisfactory answer and switched off their phones, it is undoubted that the missing person report lodged after 10 days does not name the appellants. Further, no FIR came to be lodged for a long duration of 3 months. What prompted the FIR to be lodged one day prior to the recovery of 'N', is not known to us. However, in the context of suggestions thrown at the prosecution witnesses as were also noted in their statement recorded under Section 313 Cr.P.C., it is not improbable, in the nature of the story brought by the prosecution that it was known to the prosecution witnesses that 'N' had gone away with the appellant-Jitendra Kumar Kushwaha of her own choice and that the FIR came to be lodged because no marriage took place between 'N' and the appellant-Jitendra Kumar Kushwaha. That lends further doubt in the story brought by the prosecution.
26. Thereafter, 'N' offered a further incredulous account of her abduction wherein she narrated, though she was not blindfolded and though she was a resident of Allahabad city itself, inasmuch as according to the prosecution, she used to live with her brother and parents, at Naini, across the river Yamuna, she never came to notice either the place to which she was taken or the route on which the tempo travelled or the time taken by the tempo to reach the place where she was detained or the time at which she reached that place. Though she claimed that her mobile phone was snatched by the appellants, it is highly doubtful that an educated girl (19 years of age) who was neither blindfolded or incapacitated or under any visible threat to her life and safety or who was pursuing her graduation course and who had been living in the same city, would have no sense of direction, place or time.
27. 'N' offered a further unbelievable description of her detention at a room that was kept locked at all times over a longer duration of three months. She could neither describe whether the room was located in a village or a city nor she could explain why no effort was made by her over a long period of three months to escape from the clutches of the appellants. Though she admitted that that room had a door and window, she never disclosed how she was prevented from seeking help from the outsiders.
28. We find, the prosecution story is doubtful even as to recoveries disclosed by the prosecution. In that, 'N' and the police authorities proved before the learned court below that on 26.09.2009, 'N' along with appellants and their accomplice were standing near Naini bridge at around 10:55 a.m., when she was recognised by her near relatives. The police arrested the appellants to recover 'N' at 10:55 a.m. The place from where recovery is claimed is a busy part of the city. It is a public place buzzing with activity. In that backdrop, it is admitted to the prosecution that the appellants were standing along with 'N'. Neither of them were holding 'N' nor were exercising any threat, force or coercion on 'N', to control her independent movement/action. Yet, 'N' had not made any effort to flee to save herself from the appellants. On the contrary, it is the prosecution story that she called out for her brother and her brother-in-law when she sighted them. This narration is wholly ridiculous that a 19 year old able bodied citizen has tried to prove that she was unable to escape from the clutches of the appellants from an open public place while none of the appellant was armed and none of the appellant was holding on her or preventing her from fleeing. Yet, she made that move only when she saw her brother and brother-in-law.
29. In the backdrop of the admitted facts that 'N' stayed with the appellants for three months after the occurrence and in the further admitted fact that her statement under Section 164 Cr.P.C. was first recorded 18 days after her recovery, the doubt that arises in the truthfulness of the prosecution story from the beginning remains uncured.
30. In Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92, the Supreme Court observed as below :
"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
(emphasis supplied)
31. In Radhu v. State of M.P., (2007) 12 SCC 57, the Supreme Court made following pertinent observations with respect to care required to be taken by Courts in rape cases :
"6. 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, wrists, 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."
(emphasis supplied)
32. Then, in Tameezuddin v. State (NCT of Delhi), (2009) 15 SCC 566, the Supreme Court laid down that the version of the prosecutrix in rape case may be disbelieved if it is wholly improbable and belies logic. In that regard, it was observed as below :
"9. 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. We are of the opinion that the story is indeed improbable."
(emphasis supplied)
33. Also, in Raja v. State of Karnataka, (2016) 10 SCC 506, the conduct of the prosecutrix at the time when the occurrence of rape is described by her was also considered. In those facts, it was inferred that it indicated somewhat submissive and consensual disposition. It was thus observed as below :
"26. To start with, the prosecutrix has contradicted herself qua the place of alleged kidnapping. In the complaint, she mentioned the spot to be near Richmond Park, whereas in her evidence she referred to the same as opposite Johnson Market. It is more or less authenticated by the evidence on record that after her abduction and on the way to the garage as narrated by her, she did not scream or cry for help. This is of utmost significance as it is not alleged by her that the abductors had put her under fear on the point of any weapon threatening physical injury thereby. This is more so, as admittedly the prosecutrix at the relevant time was a major and could very well foresee the disastrous consequences to follow. She has admitted in her deposition as well that while she was ravished inside the garage and even during the intermittent breaks, she did not shout for any help. Her version in the complaint with regard to the offending act and the number of persons, who had committed the same, is inconsistent with her testimony on oath at the trial. Notably in the complaint she mentioned about four persons of whom three raped and out of them, two committed the act twice. She did not disclose in her complaint that the accused persons were known to her from before and disclosed that they during the time had been referring to themselves as Raju, Venu, Parkash and Francis. This, however, has been denied by the investigating officer. On oath, she however introduced a fifth person as well. She accused all the four persons to have committed sexual intercourse with her for the second time. Though grudgingly, as admitted by her, she also consumed the food as offered to her by her molesters.
28. PW 1's conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct."
(emphasis supplied)
34. In Santosh Prasad v. State of Bihar, (2020) 3 SCC 443, the Supreme Court observed as below :
"6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall the accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 o'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4.00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW 1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW 5, prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix, PW 5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and the accused is to be given the benefit of doubt."
(emphasis supplied)
35. Thus, we do not find the prosecution story to be proven beyond reasonable doubt. Rather, the story begins with doubts. It grows on those doubts and ends with the recovery of 'N' in a further doubtful situation. Therefore, we are unable to accept any part of the story brought by the prosecution story to be true, to any extent. The learned court below has rightly disbelieved the first part of the story of abduction of 'N' by appellants by acquitting them for the offence under Section 363, 366, 504, 506 I.P.C. but has clearly erred in handing out an order of conviction to the appellants for committing gang rape of 'N', in such doubtful facts and evidence.
36. Accordingly, the impugned judgment and order dated 20.02.2014 is set aside. Both the appeals are allowed. The appellants are acquitted of the remaining charge under Section 376(2)(g) I.P.C. framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
37. Let the trial court record along with a copy of this order be returned back to the Court concerned.
To conclude
Both the Appeals are allowed.
Judgment and order of conviction dated 20.02.2014 is set aside. Appellants are acquitted of all the charges.
Order Date :- 29.5.2025
Prakhar/Abhilash/SA/Faraz
(Sandeep Jain, J.) (S.D. Singh, J.)
