Bimla vs State Of Nct Of Delhi & Ors.
2015 Latest Caselaw 4397 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        Crl.A.937/2013

%                                     Judgment pronounced on May 29, 2015


         BIMLA                                          ..... APPELLANT
                       Through:       Mr.I.D.Gill, Mr.Kamlesh Kumar Mishra
                                      and Ms.Kezhososano Kikhi, Advs.

                             versus
         STATE OF NCT OF DELHI & ORS.        ..... RESPONDENTS

Through: Mr.Sunil Sharma, APP for the State\ Mr.Deepak Mehar Singh, Advocate for respondent no.2.

Mr.Ajai Verma, Mr.Gaurav Bhattacharya, Mr.S.K.Dwivedi and Ms.Neha Singh, Advocates for respondents 3 to 5.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G. S. SISTANI, J

1. Present appeal has been filed under section 372 read with section 482 Cr.P.C against the judgment dated 16th July, 2012 passed by the ld.Additional Sessions Judge in FIR registered under section 365/376(2)(g)/120B IPC on a complaint filed by the victim who was kidnapped and gang raped. The ld.Additional Sessions Judge acquitted all the five accused persons. The present appeal has been filed by the victim.

2. The case of the prosecution as noticed by the ld.trial court is as under:-

"On 10.3.2010, on receipt of DD No.20A, SI Sudesh Pal along with Const.Sunil reached the spot of incident i.e. Goyala Mor, near

Liquor Vend where they met the complainant Kumari Sonia. She made a statement that she along with her sister Monika are studying in XII Class and had come to Sarvodya Co-Ed School, Paprawat Village for appearing in an examination. At about 1.30 p.m. when they came out of the school after finishing the paper, their mother Bimla Kumari was waiting for them in vehicle towards home. Bimla was at the wheel, Monika sat on the front passenger seat, whereas Sonia sat on the rear seat. At about 1.45 p.m. when they reached the main road near Radha Swami Satsang Bhawan, a white colour Maruti car overtook their vehicle and stopped in front of their vehicle. Two/three persons came down from the Maruti car, one of them opened the driver's side window of their vehicle and pushed their mother towards left side, another pulled out Monika from the front passenger seat and the third one opened rear door of their vehicle and pushed Sonia out of the car from the left side. The person, who had pushed their mother towards her left side and had put a revolver on her temple. They kidnapped the mother of the two girls in her own car. The Maruti car, in which the assailants had come, was being driven in front of their car. The car of the assailants had dark tinted glassed but some persons were present in the car. Sonia had made call at telephone no.100 from mobile phone no.9278284822 of her mother. She further stated that she can identify the assailants, if shown to her."

3. On the basis of the aforesaid statement of Sonia, SI Sudesh Pal prepared rukka and got the FIR registered u/s 365 IPC. Further investigation of the case was handed over to SI Sudesh Pal. She prepared the site plan of the spot from where Bimla was kidnapped. On receipt of an information that

vehicle no.DL-6C-6137 in which Bimla had been kidnapped is lying parked at Jharoda Bus Stand, he proceeded to that spot and on search of the vehicle, he found a countrymade revolver near the rear seat. He prepared the sketch of the revolver. He called the Crime Team and got the vehicle inspected by the Crime Team. No chance fingerprints could be found on the car. SI Sudesh Kumar seized the car as well as the revolver. He also recorded the statement of other witnesses. The husband of Bimla, namely Karambir, in his statement stated that his wife may have been kidnapped by accused Narender @ Balle of Village Gorar, P.S. Kharkhoda, District Sonipat, as there was enmity between the two on account of some transactions. A raid was conducted by SI Sudesh Pal along with SHO and other staff in the village of Narender @ Balle but they could not find or trace the accused Narender or the prosecutrix Bimla.

4. It is further the case of the prosecution that on 11.3.2010, prosecutrix Bimla reached police station alongwith her husband Karambir and her statement u/s 161 Cr.P.C was recorded by SI Sudesh. Her statement was also recorded u/s 164 Cr.P.C by the concerned Magistrate, wherein besides confirming what was stated to the police by her daughter Sonia, as noted hereinabove, she further stated as under:-

"After kidnapping me, the assailants proceeded towards Najafgarh. The vehicle of the assailants was following her vehicle. After traversing some distance, her vehicle broke down. At that time, her face had been covered by a cloth. She was transferred to the vehicle of the assailants, which was coming from behind. At that time, she shouted and some people gathered at the spot but the assailants told them that she is their mother and being ill, she is being taken for treatment. Thereafter, the assailants proceeded in their own car. After traversing some distance, when they reached near a drain, their vehicle also broke down. Two of the assailants took me to the wheat field near the road, look off my trouser and took turn in raping me. After a

long time, another vehicle was brought, I was put in that vehicle and they took me to village Gour where Narender @ Balle resides. Narender @ Balle took me to a room upstairs in his house and raped me there. After sometime, Narender put me in a vehicle and took me to the house of his sister Billo in Rohtak. There Narender beat me and obtained my signature by force on a blank paper. He also took my thumb impression by force on a paper, on which something was written and also had a revenue stamp affixed on it. In the morning on 11.3.2010 at about 5.30 am, Billo and her sister-in-law (Jethani) and a boy took me to bus stand Rohtak, bought me a ticket for Nangloi and made me to sit in a bus. I got down from the bus at Bahadurgarh and boarded another bus for Gurgaon from which I got down at Deenpur. After getting down from the bus at Deenpur, I made a call to my husband from an STD Booth and thereafter I along with my husband came to the police station."

5. The victim Bimla was also medically examined in RTRM Hospital, Jaffarpur. Thereafter, section 376(2)(g) IPC was added in the FIR and search for the accused was started. At this stage, the investigation of the case was entrusted to WASI Saroj Bala.

6. It is further the case of the prosecution, the real brother of accused Narender @ Balle brought him to the police station on 17.4.2010 to surrender. In the meanwhile, victim Bimla also came to the police station for enquiry about the progress of her complaint and she immediately identified Narender @ Balle to be the person who had got her kidnapped and who had raped her in his house. Accused Narender @ Balle was accordingly arrested in this case. He was produced before the concerned Magistrate and taken on four days police remand. During the course of investigation of the case, another accused Satish @ Jassa was brought to the police station by his sister and brother-in-law (Jija) for surrender. At the same time, one Rajender, brother-in-law (Jija) of BIMLA came to the police station alongwith BIMLA for making enquiries about the progress of her complaint and she identified accused Satish @ Jassa to be the same

person who alongwith his two associates had kidnapped him on 05.3.2010. Accused Satish @ Jassa was arrested in this case and his disclosure statement was recorded. On the basis of his disclosure statement, section 120B IPC was added in the FIR. Accused Satish @ Jassa was produced before the concerned Magistrate and he was taken to two days police remand to facilitate the arrest of the other co-accused persons but they could not be traced.

7. Prosecution further alleges that during the course of further investigation, accused Kapil was arrested on 04.6.2010 pursuant to a secret information. He also made a disclosure statement admitting his involvement in the kidnapping and rape of Bimla. He was taken on two days police remand. At his instance, another accused Niranjan @ Engine @ Amit was arrested in this case. Accused Niranjan also made a disclosure statement and he was remanded to one day's police custody. Accused Kapil is stated to have refused to participate in the TIP proceeding. On the basis of his disclosure statement, section 25 of Arms Act was added to the FIR. Accused Rajesh, Anil @ Chaman, Jaidev @ Jaideep could not be arrested despite efforts and NBWs were obtained against him.

8. On the basis of statement made by the victim, FIR was registered. The statement of victim and her husband was recorded. Her husband has stated that his wife had been kidnapped by Narender @ Balle of Village Gorar, P.S. Kharkhoda, District Sonipat, as there was enmity between the two on account of some transactions. Statement of the victim under section 161 and 164 Cr.P.C was also recorded.

9. Counsel for the appellant submits that the trial court has failed to consider that statement of the appellant recorded under section 164 Cr.P.C in English before the ld. Magistrate. The appellant being illiterate, was unable to get her statement recorded properly and her version of the case

was not recorded completely by the ld. Magistrate. It is also submitted that the questions asked by the Medical Officer during the appellant's medical examination were found to be confusing by the appellant. Thus, she could not answer properly before the Medical Officer. It is also submitted that proper investigation was not carried out by the police. It is also submitted that the trial court has incorrectly held that there are material contradictions in the testimonies of the daughters of the appellant who were eye witnesses to the kidnapping of the appellant. It is contended that contradictions in the testimonies of both the minor daughters do not go to the root of the matter and their testimonies are reliable and trustworthy. Counsel further submits that the trial court has erred in relying on the medical evidence as per which no injury marks, external or internal were found on the body of the appellant.

10. Counsel for the appellant also submits that the Session court has ignored material and vital evidences and the statement of complainant under Sections 161/164 of the Cr.P.C.. The investigation and prosecution of the present case was poor and weak at all time as it was filled with loop-holes and gaps, benefit of which resulted in total acquittal of the case. The relatives of the respondent no.2 (Narender @ Balle) i.e. the mother, sister and wife were never arrested and interrogated which if done could have guided the investigation as against the accused. The trial court has failed to consider that the statement of the prosecutrix is sufficient to convict the respondents and the appellant should not be made to suffer on account of poor investigation.

11. Counsel for the respondents state that the trial court has carefully analysed the testimonies of the material witnesses including the prosecutrix and has rightly reached the conclusion that the testimonies of two eye witnesses are contradictory. There are contradictions in the statements made by the

prosecutrix under section 161 and section 164 Cr.P.C. and her statement before Court. There are material contradictions in the statements of PW- 8, daughter of the prosecutrix and PW-5, second daughter of the prosecutrix. Counsel also contends that none of the accused persons were arrested from the spot of the incident nor they were put to any test identification parade. Counsel also submits that the trial court has rightly observed that neither respondent Narender @ Balle nor Satish @ Jassa who surrendered had made any disclosure statement regarding address and description of any of the accused persons, but were later on arrested. Hence, there is doubt as to on what basis, police arrested the remaining accused persons. Counsel also submits that there are material improvements in the statements made by the prosecutrix and contradictions between her statements made under sections 161, 164 Cr.P.C and before the court. It is also contended that the prosecutrix testified that she was hit on the head by Kapil with a revolver and received injury, but no such injury was found during MLC. Counsel also submits that statement of the prosecutrix is unbelievable that the mother and wife of Narender @ Balle were present in the house when she was raped, and further medical evidence also does not support the theory of rape. Counsel also contends that as per prosecutrix, when she was being raped, she had bitten the fingers of the assailants which in fact was not stated in either of the two statements nor supported by medical evidence. It is also contended that the conduct of her husband also shows that on hearing the kidnapping of his wife, he did not go to the spot of the incident, but stayed at his home, which is highly unusual.

12. Counsel for the respondents state that the respondents have been falsely implicated in the case. It is also contended that prosecutrix had taken money from respondents (Kapil and Narender @ Balle) on the pretext of

providing employment to them and their relatives in Delhi Metro, and to avoid repayment of that money, prosecutrix implicated them in a false case.

13. Counsel for Narender @ Balle has further stated that a FIR stands registered against the prosecutrix and her husband at Police Station City Rohtak, Urban Estate, bearing FIR no.89/10, under section 409/420 /465/ 467/468/506/120B and 34 IPC, on a complaint filed by one Rakesh Kumar also from whom the prosecutrix had received money for providing employment. Counsel further stated that another FIR no.123/09 had been registered against the prosecutrix at Police Station Aman Vihar under section 420/468/471/34 IPC on a complaint filed by Mr. Bhupinder. He also stated that prosecutrix had issued threats to him asking him to withdraw the complaint or else face dire consequences.

14. We have heard learned counsel for the appellant/victim as also counsel for respondent/State and counsel for the respondents 2 to 6 in detail, who have taken us through the trial court record including the testimonies of the material witnesses. The prosecution has examined 25 witnesses to prove the charges against the accused persons. The accused persons i.e., respondents 2 to 6 herein were examined under section 313 Cr.P.C., wherein they denied all the incriminating circumstances and claimed that they had been falsely implicated in this case. Respondents Kapil and Narender @ Balle had further stated that prosecutrix had taken money from them on the pretext of providing employment to them and their relatives in Delhi Metro, and to avoid repayment of that money, prosecutrix implicated them in a false case.

15. We deem it appropriate to examine testimonies of some of the material witnesses in this case.

16. PW-1, Dr.Neelu Mishra, has testified that on 11th March, 2010, when she

was posted as a Senior Resident Obst.Gynae, RTRM Hospital, Jaffarpur, New Delhi, one Bimla was referred to her for gynae examination. As per her observation:-

"There were two minor scratch marks on the right shoulder of the patient. No injury marks on the external or internal genitalia were present. Report about Hymen was not relevant as the patient was a married lady having six children. I had sealed the nail clippings, pubic hair, vulval and vaginal swabs of the patient with the seal of the hospital and handed over the same to the police official who was accompanying the patient.

During cross-examination, she has stated:-

It is correct that as per first and second column appearing on page 3 of ExPW 1/A, the patient had stated that it was a case of attempted penetration and not completed penetration. The two scratch marks observed on the shoulder of the patient can be caused by rubbing of the shoulder with any object. On 11.3.2010, I had prepared only one MLC i.e., Ex.PW 1/A. I have conducted gynae examination of many patients like this. I cannot give a definite opinion in this case on the basis of clinical examination whether rape was committed or not. I did not see any signs of forced rape in the present case."

17. The star witness in this case is PW-2, prosecutrix. She testified that on 10th March, 2010, her daughters Monika and Sonia were appearing in the examination of 12th class in Village Paprawat. She had gone to the school in her Maruti car. At about 1.45 pm after the examination was over, children boarded her car and they proceeded towards their house. Her elder daughter Monika was sitting on the front seat and Sonia was sitting on the rear seat. After five minutes, they reached near Swami Satsang Bhawan, Deenpur. When she crossed the lane of Satsang Bhawan, one small car came from behind and five persons were sitting in that car and they parked their car in front of her car. Three boys got down from the car and two boys had revolvers in their hands. One boy pushed her

towards left and two boys pulled her daughters out. One boy by the name Kapil, whose name she came to know afterwards sat on the driving seat of the car and another sat besides her on the front seat on her left. The other two boys also sat in her car and she can identify them by face but did not know their names. She then testified that accused persons proceeded towards Najafgarh in her car. Accused Anil @ Chaman pushed her towards back side while accused Niranjan covered her face with a towel. Accused Kapil hit her with the revolver on her head. After travelling some distance, her car broke down. The car of the accused persons was coming behind her car. One of the boys got down and covered her face with a blanket and made her sit in their car. The accused persons were shouting that she was their mother and they were taking her to the hospital. Thereafter accused persons took her to a village. The car of the accused persons also broke down. Accused Kapil, Niranjan and one other boy took her in a wheat field and other two accused persons remained present near the car to keep a watch. Thereafter Kapil, Niranjan and the third boy committed rape. Thereafter, they telephoned Balle and said that they had brought her and that their car had broken down. Balle was asked to bring a car. After 1 ½-2 hours, accused Balle came in a big car alongwith two persons. They made her sit in that big car and kept roaming in the car on the roads, and in the evening, they took her to the house of accused Balle in Village Guard. In the house of accused Balle, his mother, his wife Poonam, his sister Billo, her sister-in-law Neelam and two other boys were present. Accused Balle took her in his room on the first floor and the wife and sister of Balle helped him in taking her in the room. When his mother asked him not to take her upstairs, he kicked her. Thereafter accused Balle committed rape upon her. Thereafter at about 8- 8.30 pm, accused persons took her to Rohtak. The accused persons had

gone in a separate vehicle while she was taken in another car in which the wife and sister of accused Balle, two other boys and Neelam, sister-in-law of Billo were also present. Accused Balle, his wife and sister had beaten her. In the said house, accused Balle forced her to sign some papers. As she is illiterate and did not know how to write her name, Balle asked her to see her name written on her forearm and to write it in the same manner. He had also put one red colour ticket on the said paper. On receiving a call, accused Balle ran away from there. Only ladies remained in the house with her. In the morning while they slept, she came out of the house and went to a tea stall near the bus stand. She borrowed Rs.50/- from an old man and boarded a bus from Delhi for Rohtak. She got down at Bahadurgarh and took another bus for Gurgaon. About 7.30 am, she reached Deenpur Village bus stand and telephoned her husband from there. Her nephew came and picked her. Four police officers were present at his home at that time. She showed them the wound inflicted by accused Kapil on her temple with his revolver. On the next day, she was taken to the hospital for medical examination. Thereafter, her statement was recorded in the court. She identified her signature on the statement made under section 164 Cr.P.C.

18. She was cross-examined by the Public Prosecutor. During cross-

examination by the Public Prosecutor she deposed that it was correct that accused Balle had put a revenue stamp on the documents before taking her signatures. She also stated that it was correct that she did not tell the police that at about 5.30 am, Billo, sister of accused Balle, Neelam, sister- in-law of Billo and one boy brought her to the Rohtak bus stand and purchased a ticket and made her sit in the bus. She was confronted with portion A to A of her statement Ex.PW 2/B under section 161 Cr.P.C where it was so recorded. She then testified that it was correct that on

17th April, 2010, she went to the police station Najafgarh to know about the progress of her case and she saw accused Narender @ Balle sitting in the police station along with his brother, when she identified Narender @ Balle who had kidnapped and raped her. She had signed the arrest memo and search memo of accused Narender @ Balle. She also deposed that it was correct that on 11th June, 2010 she had again gone to the police station Najafgarh to know about the progress of her case and saw accused Kapil sitting in the police station and identified him as the person who had kidnapped and raped her. She also deposed that it was correct that on 17th June, 2010, she again went to the police station to know about the progress of the case when she identified accused Niranjan as the person who had kidnapped her on 10th March, 2010 along with his associates. On 31st July, 2010, she again went to Police Station Najafgarh where she had identified accused Anil @ Chaman as the person who had kidnapped her and hit her on the temple with a revolver during kidnapping. She admitted as correct that she knew Narender @ Balle prior to the incident and that accused Narender @ Balle had got her kidnapped. She did not tell the police that she had some money transaction with accused Narender @ Balle. She was confronted with portion A to A of her statement Ex.PW 2/E u/s 161 Cr.P.C where it is so recorded. During cross-examination by the counsel for the accused Narender @ Balle, she deposed that accused Kapil had hit her with a revolver on her right temple due to which she had sustained an internal injury, only and she told the doctor about the said injury during her medical examination. She admitted that two criminal cases have been registered against her but they had been falsely registered by accused Narender @ Balle. Rakesh Kumar is the brother-in-law of Balle and Upender Kumar is also a relative of Balle. She further deposed that her husband was not an income tax payee.

Her husband earns Rs.60000/-70000/- per year. They have five children who study in a Government school. They live in a rented accommodation. She admitted that they were maintaining a car. She also stated that when accused Balle had thrown her on the bed, she had sustained a scratch on her back. She also stated that it was correct that her husband did not come to take her from Deenpur Bus Stand. During cross- examination, she has also stated that she did not cause any injury to the accused persons, rather they had caused injury to her. She further deposed that she tried to oppose the accused persons by hitting with her limb but they did not sustain any injury. She also identified two persons in court who raped her. The other accused persons were standing near the vehicle when the rape was committed. She had sustained injury on her foot during rape. Her foot was bleeding slightly.

19. During her cross-examination on behalf of accused Narender, she was confronted on the following issues:-

"I had stated to the police that accused Niranjan covered my face with towel and accused Kapil hit me with a revolver on my head. (Confronted with the statement u/s. 161 Cr.PC where it is not so mentioned).

I had mentioned in my statement u/s 164 Cr. PC that my face was covered and my mouth clamped by the accused with a black colour blanket. (Confronted with the statement u/s. 164 Cr. PC where it is not so mentioned).

I had stated to the police that the accused persons took me alongside a drain. (Confronted with the statement u/s 161 Cr.PC where it is not so mentioned).

I had stated to the Ld. Magistrate in my statement u/s 164 Cr. PC and to the police also that two accused remained near the car to keep watch. (Confronted with the statement u/s. 164 Cr. PC and statement u/s. 161 Cr. PC where it is not so mentioned).

I had stated to the police as well as to the Magistrate that accused Kapil and one more person (the witness points towards accused Anil in this regard present in court today) had committed rape with me. (Confronted with the statement u/s. 164 Cr. PC and statement u/s. 161 Cr. PC where it is not so mentioned).

I had stated to the police as well as to the Magistrate that thereafter, accused telephoned accused Balle saying him that they have brought me. (Confronted with the statement u/s. 164 Cr. PC where it is not so mentioned).

I had stated to the police as well as the Ld. Magistrate that the accused made me to sit in a big car and kept roaming in the car on the roads till the evening. (Confronted with the statement u/s. 164 Cr. PC and statement u/s 161 Cr. PC where it is not so mentioned).

I had stated to the police as well as the Ld. Magistrate that in the house of accused Balle, his mother, his wife Poonam, his sister Billo, her Devrani (sister-in-law) Neelam and two other boys, whom I did not know, were present. (Confronted with the statement u/s 164 Cr. PC and statement u/s. 161 Cr. PC where it is not so mentioned).

I stated to the police as well as to the Ld. Magistrate that the wife and sister of Balle helped him in taking me to the room on the first floor of the house. (Confronted with the statement u/s. 164 Cr. PC and statement u/s. 161 Cr.PC where it is not so mentioned).

I had stated to the police as well as to the Ld. Magistrate that the accused travelled to Rohtak in a separate vehicle whereas I was taken to another car in which wife and sister of accused Balle, two other boys and Neelam were also present and that the accused took me there to a big house from where I was shifted to another house, they were planning to kill me and that accused Balle, his wife and sister beat me there. (Confronted with the statement u/s 164 Cr.P.C and statement u/s 161 Cr.P.C where it is not so mentioned).

I had stated to the police as well as to the Ld. Magistrate that

in the morning when the accused and other persons were sleeping, I came out of the house, went to a tea stall near Bus Stand, borrowed Rs.50/- from an old man and boarded a bus for Delhi. (Confronted with the statement u/s 164 Cr.P.C and statement u/s 161 Cr.P.C where it is not so mentioned).

I had also stated to the police as well as the Ld.Magistrate that my nephew came to the bus stand Deenpur to pick me up, took me home where four police officers were already present and I narrated all the facts to them and also showed them the wound inflicted by accused Kapil on my temple with his revolver. (Confronted with the statement u/s 164 Cr.P.C and statement u/s 161 Cr.P.C where is not so mentioned).

I knew accused Narender @ Balle even before the incident. I did not know his family members before the incident. I came to know about the names of the family members as the accused kept on calling each other by names during the night when I was with them. I did not receive any injury on any part of my body when accused Narender @ Balle committed rape upon me on iron cot. It was dry land at the place where I was raped by other accused in field and therefore, my clothes did not get dirty. I did not get any clay etc. on my hairs also. I did not suffer any injury during that incident also.

I had narrated the incident to the doctor who had medically examined me but I did not tell her the names of the assailants as I did not know the names by that time. I had given the name of accused Balle to the Doctor. I had stated the place of incident to the doctor."

20. PW-3, Constable Nagender, has testified that on 17.4.2010, at about 7.00 a.m., the brother of the accused Narender @ Balle, had brought him to the Police Station. In the meanwhile, the prosecutrix also came to the Police Station and identified him as the person, who had raped her in her village.

21. PW-5, Ms.Sonia, is the daughter of the prosecutrix, who was 15 years of age at the time of her making the testimony. PW-5 has testified that on 10.3.2010, she along with her elder sister, Monika, had gone to the school

where she and her sister had appeared for the Class XII examination. After both the sisters came out from the school, their mother was waiting in her car. PW-5 sat on the rear seat of the car while her sister sat on the front seat of the car. On the way, near Radha Swami Satsang Bhawan, a white coloured Maruti car overtook their car and blocked their way. Three persons, whom she identified in the Court as Kapil, Anil @ Chaman and Niranjan, got down from the car. Kapil pushed her mother inside the car from the driving seat and sat on the driving seat of their car. Anil @ Chaman pulled out her sister, Monika, from the car and Niranjan threw her out of the car after opening the door. Anil @ Chaman and Kapil had pistols in their hands. Her mother had two mobile phones made of Nokia and Virgin. Her mother threw the Virgin mobile phone from the car. The accused persons took away her mother in the car of the mother. She and her sister got up and informed Police on No.100 from the mobile. She also telephoned her father. After 10-15 minutes, 3-4 PCR vans came there. Police enquired from PW-5 and she told the Police about the incident. PW-5 was taken to the Police Station. She had met her father on the way to the Police Station.

22. During cross-examination, PW-5 has testified that she was pulled out from the Maruti car. It was a kahcha road where she was thrown on the road but she did not sustain any injury. She fell with her face towards the road on the left side of the car. Dust accumulated on her face and entered her eyes, nostrils and mouth. First, her sister was thrown out of the car and thereafter she herself was thrown out of the car. Her sister did not sustain any injury but her face was full of dust.

23. PW-8, Ms.Monika, is another material witness, being the second daughter of the victim. PW-8 has testified that on 10.3.2010, she along with her sister had gone to the examination centre. Their exam was over by 1.30

p.m. Her mother had come in her Maruti car to pick her and her sister. She was sitting on the front seat while her younger sister was sitting on the rear seat. When they reached Radha Swami Satsang Street at about 1.45 p.m. one White coloured maruti car overtook their car and blocked their way. Three boys, Niranjan, Kapil and Anil @ Chaman (who were pointed out by this witness) had got down from the car. Two boys had pistols in their hands. Thereafter PW-8 became unconscious and she did not know what had happened henceforth.

24. At the request of the Additional Public Prosecutor, this witness was examined. In her cross-examination, PW-8 has deposed as under:

"It is wrong to suggest that police had recorded my statement on 10/03/2010. I did not tell the police that one accused pushed my mother from the driver seat inside the car and other accused pulled me out from the car and third accused after opening the rear door of the car, pushed my sister Sonia, out of the car and one of them put the revolver on the head of my mother. (Confronted with portion A to A of her statement Mark PW-8/1 where it is so recorded). I did not tell the police that thereafter, those persons abducted my mother and some other persons were also sitting in the car in which accused persons had come and the glasses of the car were tinted and my sister Sonia had called at 100 No. from mobile No.9278284822. (Confronted with portion B to B of her statement Mark PW-8/1 where it is so recorded). It is wrong to suggest that one accused had pushed my mother inside the car or that one accused pulled me out of the car or that third accused pushed my sister Sonia out of the car. It is further wrong to suggest that accused persons had abducted my mother in our car. It is wrong to suggest that I have deposed falsely in respect of the confronted portion for the reasons best known to me."

25. During cross-examination carried out by learned counsel for the Anil @ Chaman, PW-8, inter alia, has stated that she became unconscious after the accused persons came to their car with pistols, threw her on the ground and out of the car.

26. During cross-examination carried out on behalf of the accused, Kapil, Niranjan, Satish @ Jassa and Narender @ Balle, PW-8 has testified that she did not know what happened while she was unconscious. She has also testified that it takes 10 minutes by car to reach her house from the spot of the incident. This witness has also testified during cross-examination that her father took her to the hospital when she reached home as her father was present at home at that time.

27. A careful examination of the testimonies of these three most material witnesses, being victim/prosecutrix PW-2; and her two daughters, PW-5, Sonia, and PW-8, Monika, we are of the view that the trial court has rightly reached the conclusion of acquittal. The statements of the two daughters of the prosecutrix, PW-5 and PW-8, who are the eye-witnesses, are contradictory and are unreliable.

28. While PW-8, Monika, has testified that she became unconscious after the accused persons came to her mother's car and threw her on the ground and out of the car. This material fact has not been stated by PW-5, Sonia, in her testimony that her sister, PW-8, had became unconscious when she was thrown on the ground. In fact PW-5 has testified that both of them took 10-20 seconds in getting up from the kachcha road. PW-5 has also testified that their faces were full of dust and she telephoned the Police only after 4-5 minutes.

29. We have also noticed another material contradiction. In her testimony, PW-5 has stated that when she was being taken to the Police Station, her father met them on the way, while PW-8, Monika, has testified that her father took her to the hospital when she reached home from the Police Station as her father was at home at that time. Ordinarily, this may seem a minor contradiction or variation with respect to the statements of both the witnesses but it gains immense importance in the facts of this case as the

testimonies of PW-5 and PW-8 would show that despite knowledge of kidnapping, the husband of the victim continued to remain at home and did not reach the spot of the incident. It is extremely unusual that the father, being aware that his two minor daughters were stranded at an isolated place, did not rush to the place of occurrence. In the normal conduct, under such circumstances, any father would reach the place of incident to rescue his minor daughter(s) and not wait for their arrival at home. It may also be noticed that PW-5, Sonia, in her statement to the Police had stated that her mother's mobile phone was with her, while in Court she has testified that her mother threw the mobile phone out of the car. Surprisingly PW-8, Monika, has not stated anything about the mobile phone more particularly, as to whether her sister had the mobile or her mother had the presence of mind to throw the mobile out of the car.

30. It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the prosecutrix is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. In the case of Vijay @ Chinee v. State of Madhya Pradesh reported at (2010) 8 SCC 191, the Supreme Court has held:

"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."

31. In the case of Md. Ali Vs. State of UP reported at 2015 (3) SCALE 274,

the Apex Court has held that:

"Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based.".

[Emphasis supplied]

32. In another case Mohd. Iqbal v. State of Jharkhand reported at (2013) 14 SCC 481 the Apex Court has held that "There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses."

33. The present appeal is to be decided on the touchstone of law which has been laid down by the Supreme Court of India with regard to the deposition of the prosecutrix in the case of rape. In the light of the testimony of the prosecutrix, it is to be considered whether the trial court has rightly reached the conclusion of acquittal in this case. We have discussed the evidence of PW-2 (prosecutrix) in the paragraph aforegoing.

34. In the present case, we find the testimony of PW-2, the prosecutrix, to be highly unreliable. Before the contradictions in the statement of the prosecutrix are analyzed, we find that the manner of arrest of the respondents (accused before the trial court) is also shrouded in mystery, which also makes the story of the prosecutrix a suspect. We may also notice that no TIP was conducted with regard to the respondents as except Narender @ Balle, no other respondent was known to the prosecutrix.

35. On careful examination of the evidence placed on record it would reveal that Kapil and Anil @ Chaman surrendered in the Police Station on their own and were then arrested.

36. We may also notice that except for Narender @ Balle, the prosecutrix was not known to any of the remaining accused persons, yet no test

identification parade was carried out. All the accused persons were present in the Police Station with their faces uncovered, and on those days the prosecutrix had come to the Police Station to enquire about her case, which is also a strange coincidence. The respondents, Satish and Rajesh @ Anil, have also not been identified by the prosecutrix even in the Police Station.

37. The cross-examination of PW-2, victim, with regard to identifying the accused persons reads as under:

"... It is correct that on 11.06.2010 I again went to PS Najafgarh to know about the progress of my case and I saw accused Kapil sitting in the PS and I identified accused Kapil who had kidnapped me and had raped me.

It is correct that on 17.06.2010 when I again went to PS Najafgarh to know about the progress of the case, I identified accused Niranjan as a person who had kidnapped me on 10.03.2010 along with his associates.

It is correct that on 31.07.2010 I again went to PS Najafgarh where I had identified accused Anil @ Chaman as the person who had kidnapped me and hit me on my temple with a revolver during kidnapping........"

38. Without the identity of the accused, Satish, Kapil, Niranjan, Anil @ Chaman and Rajesh @ Anil having been established, the prosecution cannot claim that Satish, Kapil, Niranjan, Anil @ Chaman and Rajesh @ Anil are the persons who kidnapped and raped the prosecutrix.

39. In our view the trial court has rightly reached the conclusion that evidence of identifying of accused persons at the trial court for the first time is inherently of a weak character and inadmissible.

40. Para 33 of the judgment of the trial court reads as under:

"33. It is also relevant to point out here that as per the prosecution case, the disclosure statements made by accused Narender and

accused Satish @ Jassa, who were the first to have surrendered and to be arrested, led to the arrest of other accused persons in this case. I have minutely perused the disclosure statement Ex. PW3/A of accused Narender and Ex.PW25/E of accused Satish @ Jassa. Accused Narender in his aforesaid disclosure statement has not mentioned the description or residential address of any of the accused. Accused Satish has neither admitted his own involvement in the incident of kidnapping and rape of the prosecutrix nor has disclosed the involvement of any other accused in the same. He has not given the description or residential address of any other accused. Hence, I fail to understand that on what basis did the police arrest the accused in this case and implicated them in this case.

41. In our view, the manner in which the prosecutrix escaped from the accused persons, is a very material factor and there are serious contradictions in her testimony in this regard, which cannot be ignored. It may be noticed that the prosecutrix was declared hostile on certain aspects. Firstly, in the statement recorded under Section 161 of the Code of Criminal Procedure, prosecutrix has stated that she escaped from the house where she was kept after kidnapping, which is in Rohtak (house of Niranjan's sister), took Rs.50/- from an old man and boarded a bus to Delhi, whereas in the statement recorded under Section 164 of the Code of Criminal Procedure she has deposed before the Magistrate that the accused Narender's sister Billo and her sister-in-law took her to Bahadurgarh bus stand, they purchased a ticket for her to Nangloi and Billo had given her a sum of Rs.100/-. Both these versions are entirely different. The prosecutrix was confronted with her own statement dated 11.3.2010, which was given to the Police. It may also be noticed that the prosecutrix has also not handed over bus tickets to the Police during investigation.

42. Secondly, in her testimony before the Court, the prosecutrix was

confronted with her statements recorded under Sections 161 and 164 of the Code of Criminal Procedure, wherein she has not stated that two boys were sitting in the car, were armed with revolvers. Thirdly, the conduct of the prosecutrix is doubtful as she nowhere has stated as to how she came to know that the house, in which she was allegedly raped, was the house of Narender and other house, where from she escaped, was the house of Narender's sister. We also find it unusual that the manner in which the prosecutrix has identified the house of Narender @ Balle, the manner in which she has been able to identify the family members of Narender @ Balle and the precise relationship. Simply to say that since they were being referred to by their names as by itself is not a plausible explanation as this would not establish their relationship.

43. The testimony of the prosecutrix is also unreliable as PW-2 in her statement recorded under Section 164 of the Code of Criminal Procedure, has stated that the accused Narender after raping her in his house, put her in a vehicle and took her to the house of her sister Billo in Rohtak, where she was kept for the night. In the morning of the next date at about 5.30 a.m., Billo and her sister-in-law (Jethani) and a boy took her to a bus stand at Rohtak, bought a ticket for Nangloi and made her to sit in a bus. She got down from the bus at Bahadurgarh, boarded another bus for Gurgaon and finally got down at Deenpur. Billo had given her a sum of Rs.100/- also. However, she has given a totally different story in her testimony before the court, wherein she deposed that only ladies were in that house for the night. In the morning when they were sleeping, she came out of the house, went to a tea stall near the bus stand, borrowed Rs.50/- from an old man and boarded a bus for Delhi from Rohtak.

44. It may also be noticed that the prosecutrix had also testified that she had bitten the fingers of the assailants but no such injury marks were found on

the fingers of the accused persons during their medical examination. As far as the clothes of the prosecutrix, which were sent for forensic examination are concerned no semen was detected on them. In all cases of rape and even of gang rape there may not be any injury mark on the body of the victim as a helpless victim may not be in a position to resist the barbaric act. However, in this case where the case of the prosecutrix is that she was raped by three person (Kapil, Niranjan and one more boy) in open field, and thereafter by Narender @ Balle. There would be strong possibility of injury on the body of the victim on account be being raped by three persons in the open field. This gains importance on account of the totality of the evidence on record. Although in isolation this by itself would not be a ground to disbelieve the case of the prosecutrix.

45. Respondent, Narender @ Balle, was known to the victim prior to the incident. As per the testimony of the prosecutrix, at first she was raped by the accused Kapil, Niranjan and one other boy in the open field, while the other two accused kept a watch. Thereafter it has been alleged that Narender @ Balle, had taken the prosecutrix to his house when his mother, wife, sister, sister-in-law and two other boys were present in the house. The prosecutrix has also testified that the wife and sister of Narender @ Balle did not object and in fact helped Narender in taking the prosecutrix to the room upstairs so that he could rape her.

46. The testimony of the victim, in our view, cannot be relied upon, as it is unbelievable and beyond any imagination that Narender would have raped her in the presence and in the knowledge of his mother, wife, sister and sister-in-law.

47. The case of the prosecution is not even supported by the medical evidence. We have extracted the evidence of Dr.Neelu Mishra. Her evidence is to be examined and analyzed having regard to the fact that the

prosecutirx has alleged rape by three persons.

48. As per the observations made by PW-1, Dr.Neelu Mishra, in her report, Exhibit PW-1/A, there were two minor scratch marks on the right shoulder of the prosecutrix. No injury marks on the external or internal genital were present. It may also be noticed that in the first and second column appearing on her report, Exhibit PW-1/A, the prosecutrix had stated that it was a case of attempt penetration and not complete penetration. Also during cross-examination, PW-1 has testified that two scratch marks, observed on the shoulder of the patient (prosecutrix), can be caused by rubbing of the shoulder by any object. Also during cross- examination, PW-1 has testified that she had conducted gynae examination on many patients like the prosecutrix but she could not come to a definite opinion on the basis of clinical examination whether rape was committed or not. She has also testified that she did not see any sign of forced rape in the present case. The medical examination also does not show any injury on the temple region alleged to be caused by the revolver of Kapil.

49. We have also examined the report of the CFSL, Ex.PW-25/H, Ex.PW-

25/J and Ex.PW-25/K, as per which no semen was found on the clothes.

50. The trial court has also rightly taken into account that in case a mobile phone was thrown on a kachcha road, which was full of dust, the phone would also have either been lost in dust considering the fact that the faces of PW-5 and PW-8 were covered by dust and it had entered into their eyes, nostrils and mouth or that dust would have gone into the small crevices in the key board of the phone and would have become difficult to operate.

51. In paras 40, 42 and 43 the trial court has observed as under:

"40. As per the aforesaid report Ex.PW1/A, the prosecutrix had told PW1 during medical examination that she had bitten the fingers of both the assailants. She has not stated so in her testimony before this court as PW2 or in her statement u/s.161 Cr.PC and u/s.164 Cr.PC. No such bite mark has been seen on the fingers of any of the accused during their medical examination. Further, the prosecutrix has deposed that accused Anil @ Chaman had hit her on the head with the pistol, as a result of which she had received injury on her temple, which she had shown to the police as well as to the doctor. However, as noted herein-above, no such injury was found on her body during her medical examination.

42. The statements given by the prosecutrix to the doctor (PW1) and the result of her medical examination contained in report Ex.PW1/A undoubtedly knock out the prosecution case in totality. It is manifest that the prosecutrix had not been raped at all on the day of incident. She has fabricated a totally false story about her kidnap and rape and has framed the accused falsely in this case. The prosecutrix has clearly lied to the court by deposing that she was raped by three of the accused, when she had herself told the doctor, during her medical examination that it was a case of only attempted rape and that too by two unknown assailants.

43. Even the allegation of attempted rape has not been proved. As per the medical report Ex.PW1/A, the assailants had ejaculated outside the body orifice of prosecutrix. At the same time, she has also stated that neither she nor the assailants themselves performed masturbation. Thus, when there was neither penetration nor masturbation, how did the assailants ejaculate. There has to be some stimulus for ejaculation. If it is taken to be true that the assailants had ejaculated, it cannot be ruled out that some semen drops would have fallen on the clothes of prosecutrix. It appears from the evidence of prosecutrix that she had not changed her clothes after the sexual assault till her medical examination and her clothes were seized by the police. It also appears from the evidence on record that clothes of the prosecutrix were sent to FSL, Rohini, for forensic examination. However, the FSL result has not been produced or proved on record. Hence, the allegations about the attempted rape also must fail."

52. 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. On careful analysis of the testimony of the prosecutrix, we find a large number of contradictions, inconsistencies, concealment, improvements and exaggerations in her statement which as noted above, which casts shadow of doubt and led us to find it difficult to rely upon her version. In view thereof, we have carefully examined the testimonies of the two daughters, the evidence of the doctor and the FSL report, let us see whether any other evidence has been adduced by the prosecution on record to support the version of the prosecutrix.

53. In the case of Rai Sandeep @ Deepu Vs State of NCT of Delhi reported at (2012) 8 SCC 21, the Apex Court has culled out the test of sterling witness. In our view the prosecutrix has failed to pass the test. Relevant paragraph of the judgment reads as under:

"To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each

and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

54. In our view the statement of the prosecutrix was not corroborated either from the medical evidence, scientific evidence or any other material on record. In the case of Radhu vs. State of Madhya Pradesh reported in 2007 Cri. LJ 4704, the Apex Court has held that:

"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 person 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."

55. In the case of Raju v. State of Madhya Pradesh reported at (2008) 15 SCC 133, the Apex Court has held that testimony of the victim of a rape cannot be presumed to be a gospel truth and observed that false allegations of rape can cause equal distress, humiliation and damage to the accused as well. Relevant portion of the judgment reads as under:

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

56. The Apex Court in the case of Abbas Ahmed Choudhary Vs. State of Assam reported at (2010) 12 SCC 115, has held as under:

"We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

57. The trial court has also taken into account the testimonies of the defence witnesses i.e. DW-1 and DW-2. The defence witnesses have testified that the prosecutrix was running and operating an employment racket. Both DW-1 and DW-2 have testified that they had paid money to the appellant herein, who had promised them that she could arrange for employment. DW-1 has testified the certified copy of the FIR, Exhibit DW-1/A; the order dated 21.5.2011 passed by Judicial Magistrate, First Class, Rohtak, (DW-1/B) vide which bail was granted to Bimla; and the order by which bail was granted to her husband (DW-1/C). DW-2 has deposed on the lines of DW-1.

58. It is settled law that the testimony of the prosecutrix has to be consistent

and natural in line with the case of the prosecution and free from all sorts of infirmities, so as to inspire confidence in the Court. It cannot be presumed that the statement of the prosecutrix is always true or without any embellishment.

59. In the case at hand the testimony of the prosecutrix is not natural and consistent with the case of the prosecution. Her version has no correlation with other supporting material being medical and scientific evidence. After rescanning the entire case in its right perspective, we are of the firm view if the evidence of the prosecutrix is read and considered in totality of the circumstances along with the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence, as her version does not corroborate with the medical evidence. On the contrary, based on the testimonies of DW-1 and DW-2, the motive of the prosecutrix, to falsely implicate the respondents, herein stands established. Resultantly, we find no merit in the appeal and the same is accordingly dismissed.

G. S. SISTANI, J.

SANGITA DHINGRA SEHGAL, J.

MAY 29, 2015 msr/ssn