Delhi High Court
Sameem @ Sameer vs State (Nct Of Delhi) on 5 August, 2020
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05.08.2020
+ CRL.A. 265/2017& CRL.M.(BAIL) 7455/2020
SAMEEM @ SAMEER ..... Appellant
Versus
STATE (NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Appellant :Ms Aishwarya Rao, Advocate.
For the Respondent : Mr Amit Gupta, APP for State.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The appellant has filed the present appeal impugning a
judgment dated 07.01.2017 whereby the appellant was convicted of
the offences punishable under Sections 452, 376 and 506(II) of the
Indian Penal Code, 1860 (IPC). The appellant also impugns the order
on sentence dated 16.01.2017 whereby he was sentenced to (i) serve
rigorous imprisonment for a period of seven years with a fine of
₹5000/- and in default of payment of fine, to undergo simple
imprisonment for a further period of thirty days, for the offence
punishable under Section 376of the IPC; (ii) serve rigorous
imprisonment for a period of six months with a fine of ₹1,000/- and in
default of payment of fine, to undergo simple imprisonment for a
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to HMJ Vibhu Bakhru.
further period of fifteen days, for committing the offence punishable
under Section 452 of the IPC; and (ii) serve rigorous imprisonment for
a period of six months for an offence punishable under Section 506(II)
of the IPC. The Trial Court further directed that all sentences would
run concurrently.
2. The appellant was prosecuted pursuant to the registration of the
FIR bearing no. 402/12 with PS New Ashok Nagar. The said FIR was
registered at the instance of a young woman aged about twenty-five
years (hereafter referred to as the prosecutrix). She had alleged that
on 28.11.2012, the accused (the appellant herein) had entered her
house when she was alone and had raped her.
3. It is the prosecution's case that on 16.12.2012 at about 13:25
hours,telephonic information was received that at House No. A-475,
NaaleWala Road, near Masjid Wali Pulia, New Ashok Road, one girl
has been raped. The said information was entered as DD No. 20/A
(Ex.PW4/A). The said DD No. 20/A was handed over to SI Rizwan
who proceeded to the spot and upon reaching the house, came to know
that prosecutrix along with her mother had already left for the PS. He
came back to the police station where he met the prosecutrix and
recorded her statement in the presence of her mother and a woman
constable (WCt. Moni). After the statement of the prosecutrix was
recorded, a rukka (Ex.PW15/A)was prepared. The same was produced
before the concerned Duty Officer and the FIR in question was
registered. The prosecutrix was taken to Lal Bahadur Shastri Hospital
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and was medically examined. On the next day, that is on 17.12.2012,
the investigation of the case was marked to W/ASI Shobhagyawati
(who deposed as PW13). She reached the house of the prosecutrix and
met the prosecutrix as well as her mother and her brother. It is stated
that she prepared a site plan at the instance of the prosecutrix and
recorded the statements of the mother, brother and the sister of the
prosecutrix. Thereafter, they proceeded to Shop No. D-57, New Ashok
Nagar, where they found the accused (appellant) and he was arrested
at the instance of the prosecutrix.
4. The Trial Court evaluated the evidence and had found that the
testimony of the prosecutrix was reliable. The Trial Court proceeded
on the basis that there was no plausible reason why the prosecutrix -
an unmarried young woman - would makesuch allegation, if it was
not true. It relied on her testimony and convicted the appellant.
5. Ms Aishwarya Rao, the learned counsel appearing for the
appellant contended that the testimony of the prosecutrix was not
reliable and her testimony was not consistent with her statements
recorded earlier. She submitted that there was no other evidence apart
from the deposition made by the prosecutrix, which supported the
prosecution's case.Since she was not a sterling witness, the appellant
could not be convicted solely on the basis of her testimony. She
further submitted that in addition, there was a significant delay in
registration of the FIR and there was no plausible explanation for the
such delay.
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to HMJ Vibhu Bakhru.
Reasons and Conclusion
6. It is apparent from the plain reading of the impugned judgment
that the appellant has been convicted solely on the basis of the
testimony of the prosecutrix and there is no other evidence which
corroborates her allegation. In the given circumstances, it is essential
to carefully examine her statements and her testimony.
7. The information relating to the offence was telephonically
communicated to the police officials at about 13:25 hours on
16.12.2012. The same was recorded as DD No. 20/A (Ex.PW4/A).
The said information did not mention that the alleged offence was
committed on 28.11.2012. The prosecutrix had stated that their
neighbor had made the said call. The IO, SI Shobhagyawati, who
testified as PW3, was cross examined on this aspect and she conceded
that she had not met with the person who had called the police on
16.12.2012 but had come to know his name during the course of the
investigation.
8. It is important to note that there wasa considerable delay in
reporting the incident and registration of the FIR. Although it is
alleged that the offence was committed on 28.11.2012 at about 09.00
p.m, no information regarding the said offence was communicated to
the police officials at the material time. In fact, it is the case of the
prosecution that the prosecutrix had not disclosed this information to
any person including her family members at the material time. She did
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so on 16.12.2012. The prosecutrix had sought to explain this delay by
testifying that she did not inform this incident to any person "due to
fear". Plainly, this explanation is a weak one considering that she did
go to the police station after eighteen days and made a complaint
(statement - Ex PW3/A). The delay in filing the FIR is material but
not dispositive of the matter.
9. The statement of the prosecutrix was recorded at PSNew Ashok
Nagar on 16.12.2012 (Ex.PW3/A). In her initial statement, she stated
that on 28.11.2012 at about 09:00 pm, she was alone at home. Her
mother and her younger sister had gone to the market for purchasing
vegetables and both her brothers had gone to ply the TSRs. At that
time, a boy named Sameem, who worked at the barber shop in front of
her house, entered the house and bolted the door. She claimed that she
shouted and asked him why he had closed the door and he responded
by saying that he would tell her in a moment ("wo bola
abhibatatahunkyu band karrahahun"). She stated that he came and
hugged her ("gale lagya") and thereafter, gagged her mouth from his
hand. Thereafter, he pushed her on the bed. He untied her salwar and
committed a wrong act with her ("galatkaamkia"). She stated that
after he had done so, he warned her that if she informed anyone about
the incident, he would throw acid on her and her family members.
She stated that she got scared and that is the reason why she did not
informanybody about the incident. Shesomehow gathered courage on
that day (16.12.2012) and informed her mother and her sister about the
said incident.
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to HMJ Vibhu Bakhru.
10. It is the prosecution's case that after the statement of the
prosecutrix was recorded, she was taken to Lal Bahadur Shastri
Hospital, Khichdipur, Delhi for her medical examination. She was
examined at 9.30 p.m. on the same day, that is,on 16.12.2012. A plain
reading of the MLC (Ex PW3/B) indicates that the prosecutrix had
informed the concerned doctor about a sexual assault by an "unknown
assailant" on 28.11.2012. The MLC reveals that her cervix and
vagina were healthy. Her vaginal examination also indicated that the
hymen was intact. Her medical examination also did not indicate any
injury on her body.
11. On 22.12.2012, the statement of the prosecutrix was recorded
under Section 164 of the Cr.PC. In her statement, she stated that she
has two brothers and a sister and they along with their mother live at
the given address. She stated that there is a barber shop in front of
their house where Sameem (the appellant herein) works with his elder
brother. She stated that she does not know Sameem personally but can
identify him as he has been working at the barber shop in front of her
house. She stated that prior to the incident, she had no contact with
him. She stated that on 28.11.2012, at about 08:30 pm, she was alone
at her home. Her mother along with her younger sister had gone to the
market to buy vegetables. Both her brothers were also plying their
auto rickshaws. She stated that she was preparing dinner in the
veranda and the main door was closed but it was not locked and at that
time. Sameem came inside the house from the main door and locked
the door from inside. She immediately asked him as to why he had
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come inside and he responded by stating that he would soon tell her
why he had come inside. She stated that she started rising towards the
main door to unlock it but in the meanwhile, Sameem came towards
her and put his hand on her mouth and gagged her. She alleged that he
forcibly took her inside one of the bedrooms, which was near the main
gate, and threw her on the "takhat/bed". The rear side of her head
struck against the takhat/bed. She stated that the Sameem came near
her and untied the nada of her salwar. She was not wearing any panty
at that time. She stated that the accused also lowered his trousers a bit
and came over her and raped her. She was in pain but he continued for
about ten minutes. She stated that because she had hit her head against
the bed, she could not offer resistance as she was feeling dizzy but was
conscious. She stated that the accused then stood up and started
zipping his trousers. At that time, she was feeling very weak and
therefore, was not able to rise from the bed and fight him or offer any
resistance. She further stated that he warned her not to say anything to
anybody otherwise he would throw acid on her and her family
members. She claimed that she was terrified and therefore, did not tell
anything to anybody. She stated that after the accused had left the
house, she got up from the bed, washed her face, urinated and washed
her private parts with water. She stated that since it was time for her
mother and sister to return, she did not lock the door from inside.In
order to conceal what had happened with her, she tried to look normal
and started preparing the meal for the night. She stated that she did not
feel like talking to her family members for days to come. However,
after that date, she started locking the door from inside, but the
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accused Sameem never came inside the house again. She stated that
she was feeling very guilty and used to think about the incident all the
time.It became unbearable and she informed her mother about the
incident in the morning of 16.12.2012. She stated that her mother
scolded her as to why she had not informed her about the incident
earlier. She responded by telling her mother that the accused had
threatened her with dire consequences and that he would throwacid on
her and her family members and therefore, out of fear, she did not say
anything. She stated that thereafter, she also told her sister about the
incident. Her mother called her brothers home that afternoon. She
affirmed that thereafter, her brothers caught hold of the accused and
straight away took him to the police station. She stated that thereafter
family members of the accused Sameem offered to compromise the
matter but she wanted Sameem to be given the maximum punishment.
12. It is at once clear that the statement of the prosecutrix recorded
under Section 164 of the Cr.PC- which was recorded six days after
her initial complaint - is not entirely consistent with her initial
statement. The prosecutrix had made significant improvementsto her
initial complaint. In her complaint, the prosecutrix had not stated that
at the time of the incident, she was preparing dinner in the veranda but
she stated so in her statement under Section 164 of the Cr.P.C.
Whereas in her complaint, she stated that the accused had come inside
the house and after locking the door from inside had come and hugged
her (gale lagaya), no such statement was made by her in her Statement
under Section 164 of the Cr.PC. She now stated that she rose to go
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towards the main door to unlock it but in the meanwhile, the accused
came and put his hand on her mouth and gagged her. As observed
above, this narration is not consistent with her initial statement/FIR.
Further in her statement under Section 164 of the Cr.PC, she stated
that the accused took her inside the bedroom, which was near the main
gate and threw her on the takhat/bed in the manner that the rear side of
her head struck against the takhat /bed. She had made no such
statement in the initial complaint recorded on 16.12.2012. She also
affirmed that because of her head hitting the bed, she felt dizzy and
could not offer resistance to the accused. She provided no such
explanation in her initial statement/complaint (statement recorded on
16.12.2012).
13. Importantly, in her statement recorded under Section 164 of the
Cr.PC, she stated that the accused had lowered his trousers a bit and
had come over her and had raped her. She was in pain but he
continued for about ten minutes. No such allegation was made by her
in her complaint. This is also significant since it is not corroborated by
any medical evidence. She had stated that she continued to lie in the
bed as she was feeling weak and got up after some time after the
accused had left the house. Again, there is no such statement made by
her in her complaint (Ex PW3/A). The complaint is also silent as to
what the prosecutrix did thereafter. However, in her statement under
Section 164 of the Cr.PC, she stated that she got up, washed her face,
urinated and washed her private parts. It is also material to note that
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she stated that she did not lock the door from inside after the accused
had left.
14. In the statement recorded under Section 164 of the Cr.P.C on
22.02.2012, the prosecutrix affirmed that after she had narrated the
incident to her mother in the morning of 16.12.2012, her mother had
scolded the prosecutrix for not informing her about the incident
earlier. No such statement has been made in the complaint. She further
stated that thereafter, her mother called both her brothers home in the
afternoon. She stated that both her brothers caught hold of the accused
and took him to the police station. The prosecution's case is silent as
to whether the accused was brought to the police station on
16.12.2012. According to the prosecution, the statement of the
prosecutrix was recorded in presence of her mother.
15. The prosecutrix was examined as PW3. Her examination-in-
chief was very brief. She testified that a boy who was running a barber
shop in front of her house and whose name she did not know at that
time, had entered into her house and closed the main gate by bolting
the door. She had enquired from him as to why he had closed the door
and he replied that he would just tell. She alleged that he closed her
mouth by putting his hand on her mouth. He pushed her on the bed,
untied her salwar and committed a galatkaam (rape) after opening his
trousers. She alleged that he threatened her that if she disclosed the
incident to anyone, he would throw acid on her family members. She
stated that she did not inform anyone of the incident due to fear, but
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on 16.12.2012, she told her mother and sister about the incident. She
stated that her mother took her to PS New Ashok Nagar and thereafter,
the police took her to LBS Hospital. She identified her signatures on
the MLC.She deposed that her statement was recorded under Section
164 of the Cr.PC.
16. As is apparent from the above, her testimony is also not entirely
consistent with her complaint recorded on 16.12.2012. There is no
allegation that the accused had come and hugged her and thereafter,
gagged her from his hand. Her complaint also did not mention that the
accused had locked the main gate; she alleged that the accused had
entered inside the house and closed the door. However, her
examination-in-chief is consistent with her initial statement to the
extent that in her initial complaint (recorded on 16.12.2012) she had
stated that the appellant had gagged her mouth and pushed her on the
bed ("mujhe bed par dhakeldia"). But this is in material variance to
her statement recorded under Section 164 of the Cr.P.C on
22.12.2012. In her statement, she had stated that the accused had come
inside her house from the main door and had locked the main door
from inside. She had asked him why he had come inside and he had
told her that he would soon tell her why he had come inside. She
stated that she starting rising in order to go towards the main door to
unlock it, but in the meanwhile, he came towards her and put his hand
on her mouth and gagged her and then he forcibly took her inside one
of the bedrooms, which was near the main gate and he threw her on
the takhat/bed.
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to HMJ Vibhu Bakhru.
17. First of all, her statement that she starting "rising" does indicate
that either she was sitting or lying down. But her complaint recorded
on 16.12.2012 and her testimony, do not indicate that she was sitting
down or lying down and had risen from her position on seeing the
appellant. Secondly, neither in her initial statement nor in her
examination-in-chief, there is any mention of the accused taking her
inside a bedroomnear the main gate. A plain reading of her statement
recorded on 16.12.2012, suggests that she was in the room where the
bed was located as she had merely stated the accused had come inside
the house, bolted the door and pushed her on the bed. There was no
allegation that he had dragged her from any of the outer rooms or
veranda to another room. The prosecutrix had not mentioned that she
was preparing dinner in the veranda at the material time either in her
initial statement recorded on 16.12.2012 or in her examination-in-
chief. The statement that she was preparing dinner in the veranda was
made by her in her statement recorded under Section 164 of the Cr.P.C
on 22.12.2012. In her cross-examination, she stated that she was
preparing food in the veranda of her house on the date of the incident
"due to heat". She also stated that the distance between the veranda
and the main gate of her house was about 10-12 feet.
18. The weather at 9.00 PM at night in the end of November is not
hot. Thus, the reason given by her for preparing food in the veranda, if
at all, is difficult to accept.
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19. She further stated in her cross-examination that she raised an
alarm when the accused entered her house. She stated that she ran
towards the main gate but the accused bolted the main gate door. He
gagged her mouth with his hand. She stated that she tried to push him
to save herself but the accused took her by force into a room facing the
road. Her narration of the events on 28.11.2012 are clearly not
consistent. In her statement recorded under Section 164 of the Cr.PC,
she stated that she started to rise and the accused gagged her mouth. In
her initial statement she stated that the accused had come inside the
house and bolted the door and then hugged her. In her cross-
examination she stated that she ran towards the main gate but the
accused bolted the main gate door and gagged her mouth. As noticed
above, there is also material variance between her initial statement
recorded on 16.12.2012 and her statement recorded under Section 164
of the Cr.PC.
20. According to the IO (SI Shobhgyawati), who was examined as
PW13, she had prepared the site plan (Ex.PW3/DA) at the instance of
the prosecutrix. The prosecutrix also deposed in her cross-examination
that the site plan (Ex.PW3/DA) was prepared at her instance in the
presence of her mother and identified her signature. However, the
prosecutrix could not remember the name of the police official who
had prepared the site plan. She also could not state whether a male
police official or a female police official had prepared the site plan.
She stated that she was having pain in her abdomen at the time of
making of the site plan and was resting in another room.
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21. The site plan (Ex.PW3/DA) indicates that the house is built on
almost a square shaped plot. The front of the house is shown as facing
a footpath which is beside a feature described as deep drain where
excavation work is being carried on
("gehranalakhudaikakaamchalrahahai"). The said feature described
as a deep drain is, in fact, a road which was being excavated. The
barber saloon where the accused works is opposite the prosecutrix's
house - the other side of the road, which was being excavated. On the
front left hand side of the plot, a portion is shaded and mentioned as
stairs. On the right side of the site plan, three rooms are shown in a
row and marked as Room No.1, Room No.2 and a kitchen. The entire
rear of the house is shown as Room No.3. There is space shown
between the row of Room Nos. 1 and 2 and the kitchen and the stairs.
There is no space, which is described either as an angan or a veranda.
On the site plan, a point is marked as 'A', which is described as a
place where the victim was cooking food. The spot where she was
allegedly raped is shown in Room No.1 beside a window facing the
footpath and the main road (where excavation was being carried out).
However, in her cross-examination, the prosecutrix denied that she
was at Point 'A' at the time when the accused had entered the house.
She claimed that she was at another spot, which is nearer to Room
No.2 (that is, the room between kitchen and the room where she was
allegedly raped). The site plan is of little assistance, inasmuch as, it
does not show where the veranda was located. It also does not show
that the space leading from Room no.1, 2 and kitchen and Room No.3
is an open space. The stairs are in the front left end corner of the site
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plan and the rooms shown are on the rear and on the right hand side of
the house. Considering that there are stairs going up to the roof on the
other side of the house (opposite the row of rooms described as room
no.1, room no.2 and kitchen) it is obvious that at least part of the said
space between the rooms and the space would necessarily be covered.
The site plan does not indicate the portion that is covered.
22. Although PW13 (SI Shobhagyawati) and the prosecutrix had
testified that the site plan was prepared at her instance, the same does
not appear to be the case because the prosecutrix had denied that she
was cooking food at the spot marked as 'A' at the time when the
accused had entered the house. The note on the site plan indicates
otherwise.
23. Further, the prosecutrix had testified that there was no digging
going on outside her house. And, on 16.12.2012, she had gone to the
police station in a TSR that was parked in front of her house. PW13
(SI Shobhagyawati) was entrusted with the investigation on
17.12.2012 and had testified that at the material time, excavation was
being carried out in front of the house and it was not possible for a
vehicle to reach that spot. SI Mohd. Rizwan (PW15) had testified that
he had gone to the house of the prosecutrix on 16.12.2012 and
thereafter, on 17.12.2012, accompanied SI Shobhagyawati to the said
house. He also stated in his cross-examination that at the time of their
visit to the spot, digging work was in progress in front of the house of
the prosecutrix and no vehicle could come and go on the road at that
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time. He stated that there was only a small space for persons to move
on foot.
24. In her cross-examination, the prosecutrix had stated that she
tried to push and resist the accused at the time with her hands and legs.
However, the accused did not sustain any injuries. She stated that she
also tried to push the accused with her hands and legs when he was
rapping her but he continued to do so. No such statement was made by
the prosecutrix in her initial statement recorded on 16.12.2012. This is
also contrary to her statement recorded under Section 164 of the
Cr.PC. In that statement, she had stated that the rear side of her head
had struck against the takhat/bed when the accused had thrown her on
it. As a result, she was feeling dizzy and "could not resist" (offer any
resistance).
25. In her statement under Section 164 of the Cr.P.C., the
prosecutrix had stated that the accused had lowered his pants a little
bit and had come over her and raped her. She stated that she was in
pain and he continued for about ten minutes and thereafter, he stood
up and started zipping his trousers. She stated that at that time she was
feeling"very weak and therefore, was not even able to rise from the
bed or fight him or resist him". This was not how she had described
the incident in her initial complaint (statement) recorded on
16.12.2012. The prosecutrix also did not testify to the aforesaid effect
before the Court.
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26. Admittedly, there is no material or evidence that corroborates
the allegations made by the prosecutrix. On the contrary, the evidence
on record suggests to the contrary. The MLC indicates that there were
no injuries on the body of the prosecutrix. The MLC records, "cervix
and vagina healthy" and "hymen intact". The fact that the hymen of
the prosecutrix was intact does not conclusively establish that she was
not subjected to any sexual assault. But the fact that no injuries were
found on the body of the prosecutrix is inconsistent with her
description that she had been gagged, dragged into the room thrown
on the bed resulting in her head hitting the takhat rendering her dizzy
but conscious. According to her statement recorded under Section 164
Cr.PC, the accused had come over her and raped her. She stated that
she was in pain, but the accused had continued to rape her for ten
minutes. Her description is that of a full penetrative sexual assault and
a violent one; yet, there were no injuries on her body of any kind.
27. The prosecutrix stated in her cross-examination that she had
told her mother about the incident while standing at the gate of her
house. This aspect does raise some doubts because on one hand the
prosecutrix was afraid and had concealed the occurrence of the
incident from her family members on account of fearing that the
accused would throw acid on her and her family members. On the
other hand, when she did find the courage to narrate the incident, she
did so while her mother was standing at the gate of her house and not
in privacy inside her home.
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28. The accused had forcibly entered the house and had forcibly
raped her in a violent manner for ten minutes. This was done in the
brief period when the mother and the sister of the prosecutrix were
away buying vegetables. The prosecutrix was dragged inside the
room, she was thrown on the bed and had hurt her head in the process.
According to her statement recorded under Section 164 of the Cr.PC,
she was feeling weak and could not get up from the bed and had done
so after the accused had left the house. However, even in that state,
she did not immediately tell her family members about the incident.
On the contrary, in her statement under Section 164 of the Cr.PC, she
stated that she took efforts to conceal the incident from her family
members, she washed herself (her face as well as her private parts)
and went about preparing the meal as if nothing had happened. Yet,
eighteen days later she disclosed the incident to her mother when she
was standing at the gate of the house. According to the prosecution,
the incident was immediately made public by the prosecutrix and her
family members by creating noise.
29. The police officials had not conducted any investigation as to
the call received on 16.12.2012, at 13.25 hours, reporting the said
incident. However, one Mr Dinesh Rastogi (PW6), who resides at A-
478, New Ashok Nagar, heard the noise from the neighboring house.
The house number of the prosecutrix's house is A-475 and therefore it
appears that Dinesh Rastogi was residing two houses away from the
house of the prosecutrix. He testified that he went to the house of the
prosecutrix on hearing a noise and met the prosecutrix, her mother and
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her sister and they were making the noise. He asked them what was
the matter and they told him that Sameer who works in the barber
shop had raped the prosecutrix. He stated that he made a call to the
police at 100. The police officials have not examined any of the other
neighbours or brought in any evidence with reference to the manner in
which noise, if any, had been made by the prosecutrix, her mother and
her sister. If PW6's testimony is accepted, then it is obvious that the
petitioner, the prosecutrix and her mother would have made a ruckus
loud enough for all the neighbours to hear. According to the testimony
of PW6, he had only met the prosecutrix, her mother and her sister and
they were the ones who were making the noise. He does not mention
about meeting the two brothers of the prosecutrix. He, however, stated
that he made the call at 100 and his statement was recorded on
16.12.2012. That statement is not brought in evidence. The prosecutrix
had stated in her cross-examination that PW6 (Dinesh Rastogi referred
to as "the Neighbour") was not present when the accused was
apprehended. However, in her cross-examination conducted on
09.09.2015, she states that her brothers had apprehended the accused
on 16.12.2012 and taken him to the police station. She stated that at
that time her mother, her sister, her brothers and the neighbor who had
made the call (assuming it was PW6) had also accompanied her on
that day. These two statements are inconsistent because according to
the prosecutrix (statement recorded under Section 164 of the Cr.PC),
her mother had called her brothersto come home in the afternoon and
had informed them about the accused committing the offence. Her
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brothers had then apprehended the accused and taken him to the police
station.
30. There is also a controversy regarding the arrest of the appellant.
The prosecutrix had testified that her brothers had taken the accused to
the Police Station on 16.12.2012. However PW13 had testified that the
accused was apprehended at the instance of the prosecurtix at his shop
on 17.12.12 and no other person (customers, servants or the brother of
the accused) was present at the shop. SI Rizwan had testified that there
were other customers and servants present at the shop at the time of
the arrest. The Arrest Memo shows the place of arrest as PS, New
Ashok Nagar.
31. The prosecutrix had mentioned the name of the accused in her
initial statement recorded on 16.12.12 (Ex PW3/A) but the MLC
records that she had reported being sexually assaulted by an "unknown
assailant"
32. It is settled law that the solitary testimony of the prosecutrix is
sufficient to return a verdict of conviction. However, that testimony is
required to be unimpeachable and trustworthy. There should be no
doubt as to the accuracy of the narration of events and the description
of incidents, as testified.
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33. In Rai Sandeep @ Deepu v. State: (2012) 8 SCC 21, the
Supreme Court had set out the attributes of a sterling witness. The
Court had,inter alia, observed as under:
"22 ....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 howsoever strenuous it may be and
under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons
involved, as well as the sequence of it..."
34. In Krishan Kumar Malik v. State: (2011) 7 SCC 130, the
Supreme Court had observed as under:
"31. No doubt, it is true that to hold an accused guilty
for commission of an offence of rape, the solitary
evidence of prosecutrix is sufficient provided the
same inspires confidence and appears to be
absolutely trustworthy, unblemished and should be of
sterling quality..."
35. In State of Rajasthan v. Babu Meen: (2013) 2 SCALE 479, the
Supreme Court had explained that oral testimony can be classified into
three categories, namely, (i) wholly reliable, (ii) wholly unreliable and
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(iii) neither wholly reliable nor wholly unreliable. An accused can be
convicted on the basis of wholly reliable testimony of a single witness.
However, testimony of a witness, which is neither wholly reliable nor
wholly unreliable would require corroboration. The relevant extract of
the said decision is set out below:
"8. We do not have the slightest hesitation in
accepting the broad submission of Mr. Jain that the
conviction can be based on the sole testimony of the
prosecutrix, if found to be worthy of credence and
reliable and for that no corroboration is required. It
has often been said that oral testimony can be
classified into three categories, namely (i) wholly
reliable, (ii) wholly unreliable and (iii) neither wholly
reliable nor wholly unreliable. In case of wholly
reliable testimony of a single witness, the conviction
can be founded without corroboration. This principle
applies with greater vigour in case the nature of
offence is such that it is committed in seclusion. In
case prosecution is based on wholly unreliable
testimony of a single witness, the court has no option
than to acquit the accused."
36. In the present case, this Court is unable to accept that the
testimony of the prosecutrix is wholly reliable. For the reasons stated
above, the testimony of the prosecutrix cannot be considered as one of
a sterling witness. As noticed above, there are inconsistencies in the
statement made at the initial stage and the statements made thereafter.
Thus, in order to sustain a conviction solely on the basis of the
testimony of the prosecutrix, it would be necessary that the same be
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corroborated by some other material. However, in the present case
there is no material on record, which corroborates her testimony.
37. The delay in filing of the FIR has also ensured loss of medical
or forensic evidence that could possibly support the prosecution's
case. To further compound the matter, the investigation agency has
also not seized the mattress or the bed sheet, analysis of which could
have provided any evidence to support the prosecution's case.
38. An offence of rape is, in most cases, is committed in the privacy
of confined or secluded places and more often than not it is not
possible to find witnesses to support the case of the prosecution. In a
number of cases, medical or forensic evidence may also not be
available. In such cases, the prosecution has to necessarily rely on the
testimony of the victim. Undeniably, the testimony of the victim has a
very high evidentiary value. And, as discussed earlier, is sufficient to
convict the accused, provided it is of an unimpeachable quality.
39. The standards of proof required to be met by the prosecution are
not diluted under any circumstances. It is necessary for the
prosecution to establish, beyond reasonable doubt, that the accused
had committed the offence for which he/she is charged.
40. In the facts of the present case, this Court is unable to accept
that the prosecution has met the said standard of proof.
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41. In view of the above, the appeal is allowed and the appellant is
acquitted of the offences for which he is charged. The appellant would
be released forthwith in the event that he is not involved in any other
case. The pending application is also disposed of.
VIBHU BAKHRU, J
AUGUST 5, 2020
RK
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