Delhi High Court
Ram Bax vs The State Of Nct Dlehi on 23 December, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 7th December, 2021
Pronounced on: 23rd December, 2021
+ CRL.A. 226/2007
RAM BAX ..... Appellant/Accused
Through: Mr. Anuj Kapoor, (DHCLSC)
alongwith Appellant/Accused.
versus
THE STATE OF NCT DLEHI ..... Respondent
Through: Mr. Panna Lal Sharma, APP with
SI Narasi Prasad Meena, P.S. New
Friends Colony
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The instant Criminal Appeal under Section 374 (2) of Code of
Criminal Procedure, 1973 (hereinafter "Cr.P.C.") is filed against the
impugned judgment dated 18th July, 2006 and order on sentence dated
20th July 2006 passed by the learned Additional Sessions Judge, New
Delhi, wherein the Appellant/Accused is convicted for the offence
punishable under Section 376 of the Indian Penal Code, 1860 (hereinafter
"I.P.C."), and he was sentenced to undergo eight years of Rigorous
Imprisonment and to pay a fine of Rs.1,000/-. In default of payment of
fine, the Appellant/Accused is to further undergo Simple Imprisonment
for one month.
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
FACTUAL MATRIX
2. The brief facts and circumstances giving rise to this case, are that: -
i. The Prosecutrix/Complainant made a complaint in the Police
Station Jamia Nagar, New Delhi upon which FIR bearing No. 425
of 2004 dated 06th September, 2004 under Sections 376/506 IPC
was registered.
ii. Prosecutrix/Complainant used to reside along with the
Appellant/Accused, her mother-Suman and younger step brother-
Raju at Gaffar Manzil adjoining to plot B-29.
iii. It is alleged that on 14th July 2004, at about 5 A.M. in the morning,
the Prosecutrix/Complainant was called by the Appellant/Accused
inside the room. The Appellant/Accused asked the
Prosecutrix/Complainant to massage his head as he was having
some pain in his head. When the Prosecutrix/Complainant entered
inside the room, she saw the Appellant/Accused standing naked.
iv. It is alleged that the Appellant/Accused committed rape on her.
When Prosecutrix/Complainant tried to raise alarm, the
Appellant/Accused gagged her mouth. It is further alleged that
thereafter the Appellant/Accused continued to commit rape on her.
v. On 6th September, 2004 at about 12:30 P.M., the
Appellant/Accused again committed rape upon the
Prosecutrix/Complainant. The Prosecutrix/Complainant filed a
complaint with the Police on the same day. On the basis of said
compliant, F.I.R. No. 425/2004 was registered at Police Station
New Friends Colony under Sections 376/506 of I.P.C. Thereafter,
Signature Not Verified
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By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
the Appellant/Accused was arrested by the Police on 07th
September, 2004.
vi. Statement of the witnesses were recorded under Section 161 of
Cr.P.C. After the completion of investigation, charge-sheet was
prepared and submitted in the Court of Metropolitan Magistrate
concerned. The case was committed to sessions and a charge under
Section 376 IPC was framed by the Trial Court.
vii. The prosecution examined PW-1 Lady Constable Anju, PW-2 HC
Prithvi Raj, PW-3 Dr. Minakshi Sharma, PW-4 Savita Sharma,
PW-5 HC Prakash Chander, PW-6 Ms. Illa Rawat, PW-7 Naresh,
PW-8 Prosecutrix/Complainant "X", PW-9 ASI Rajender and PW-
10 HC Ranga Rao, to prove its case.
viii. The statement of the Appellant/Accused was recorded under
Section 313 of Cr.P.C. The Appellant/Accused denied his
involvement in the commission of the offence. The plea of the
Appellant/Accused was that he has been falsely implicated in the
case. The Prosecutrix/Complainant is his step daughter who was
having an affair with a boy, namely, Amir.
ix. It is further stated in the statement of the Appellant/Accused under
Section 313 of Cr.P.C that the area where he resided was
dominated by Muslims and some local Muslim influential persons
supported the said boy and on the influence of the local persons
and Amir, Prosecutrix/Complainant has falsely implicated him.
The Appellant/Accused also denied the fact that he raped the
Prosecutrix/Complainant, but he has not led any evidence in his
defence.
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
x. The Sessions Court relied upon the evidence led by the prosecution
to record the finding that the Appellant/Accused being a step father
of the victim committed an offence of rape upon her. It held that
the Appellant/Accused did not give any plausible explanation to
the incriminating circumstances appearing against him in the
statement recorded under Section 313 of Cr.P.C. He did not
examine any witness in defence to falsify the statements of the
Prosecutrix/Complainant.
xi. The Sessions Court further held that the testimony of the
Prosecutrix/Complainant herself was sufficient to prove the guilt of
the Appellant/Accused. It held that the sexual assault had been
proved and the prosecution had established its case beyond
reasonable doubt that the Appellant/Accused committed rape on
the Prosecutrix/ Complainant during her stay with him. It also held
that conviction in the case of offence punishable under Section 376
of Cr.P.C can be based on the sole testimony of the
Prosecutrix/Complainant. Thereby, vide judgment dated 18th July,
2006 and order on sentence dated 20th July 2006, the Learned
Additional Sessions Judge, New Delhi convicted the
Accused/Appellant for commission of the offence punishable under
Section 376 of I.P.C and sentenced to suffer eight years of
Rigorous Imprisonment and to pay a fine of Rs.1,000/-. In default
of payment of fine, the Appellant/Accused is to further undergo
Simple Imprisonment for one month.
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
xii. Hence, the instant criminal appeal has been filed by the
Appellant/Accused challenging the judgment dated 18th July, 2006
and order on sentence dated 20th July 2006.
SUBMISSIONS
3. Mr. Anuj Kapoor, learned counsel appearing for the Delhi High
Court Legal Services Committee (DHCLSC) submitted that the
Prosecutrix/ Complainant as PW-8 cannot be relied upon because there
have been material contradictions in her depositions. It is further
submitted that the admitted facts in light of which her testimony is to be
examined for its inherent credibility are: -
i. A family of four members was living in a one room house and the
Prosecutrix/Complainant was being allegedly raped continuously by
the Appellant/Accused in the same house where other two persons
i.e. mother and step brother were residing.
ii. Prosecutrix/Complainant had been living with the
Appellant/Accused since her childhood. There was delay in the
lodging the FIR as the first instance of the alleged rape was of 14th
July, 2004 and the FIR was lodged on 06th September, 2004.
4. The learned counsel appearing on behalf of the Appellant/Accused
submitted that the Prosecutrix/Complainant's testimony is conspicuously
silent on the facts that the FIR and statements under Section 161 and 164
have no details about where, what time and under what circumstances the
Appellant/Accused would have allegedly raped the Prosecutrix/
Complainant repeatedly from 14th July, 2004 to 06th September, 2004. It
is also not stated or explained anywhere as to how the Appellant/Accused
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Signing Date:23.12.2021
06:16:39
would ensure absence of his wife/ Prosecutrix/Complainant's mother,
during such alleged transgressions.
5. It is also submitted by the learned counsel appearing on behalf of
the Appellant/Accused that Prosecutrix/Complainant had been confronted
on large number of issues/facts with her statement under Section 161 of
Cr.P.C. The improvements had been of such a large magnitude that her
statement itself became unreliable. It is further submitted that the
Prosecutrix/Complainant had a relationship with one local boy i.e. Amir
and later on she got married to him. It is further submitted that the key
witnesses i.e. the mother and the step brother of the Prosecutrix/
Complainant were not even examined. Therefore, the statement of the
Prosecutrix/Complainant before the Trial Court has not been corroborated
to the extent that she had informed her mother about the continuous rape
committed by her step father, and that the step father allegedly raped her
by sending her step brother outside the house.
6. It is also submitted by the learned counsel appearing on behalf of
the Appellant/Accused that the neighbours and others persons who
allegedly warned the Appellant/Accused to keep his behavior good
towards Prosecutrix/Complainant, were also not examined. It is further
submitted that the credibility of the prosecution's story further
diminished, when it is observed that none of the persons, which were
mentioned by the Prosecutrix/Complainant in her statement under Section
164 of Cr.P.C., were examined. It is also submitted that the Prosecutrix/
Complainant has categorically stated in her statement under Section 164
of Cr. PC and before the Trial Court that she informed about the incident
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Signing Date:23.12.2021
06:16:39
to one aunt who was her neighbour, one uncle Firoz Islam, her mother,
Rafiq Uncle, Santosh Mama and Shafeeq. Such a long sequence of
persons who have allegedly been informed about the alleged repeated
rape being committed by the Appellant/Accused on the
Prosecutrix/Complainant, were not examined by the prosecution to
corroborate the statement of the Prosecutrix/Complainant. It is submitted
that a person Shafeeq who is said to have called the persons from
National Commission for Women, was also not examined as witness by
the prosecution. Even the Investigating Officer was not examined. Non-
examination of these witnesses and the material contradictions in the
statements of the Prosecutrix/Complainant leaves no doubt that the
Appellant/ Accused has been falsely implicated in the present case by the
Prosecutrix/Complainant as he was one of the persons who did not like
her affair with the neighbour boy who belongs to another faith/religion.
Therefore, it cannot be denied that the instant criminal case was initiated
in the influence of the said boy.
7. It is further submitted that the mere perfunctory reiteration by the
Prosecutrix/Complainant of her version in her statements under Section
161 and 164 of Cr.P.C., and the statements given in her examination-in-
chief and cross examination before the Trial court could not have been
enough to convict the Appellant/Accused, especially when it was
extremely improbable, inherently weak and no corroboration in any
manner whatsoever.
8. Learned counsel appearing on behalf of the petitioner further
submitted that it is an admitted fact, and not denied by the
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Signing Date:23.12.2021
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Prosecutrix/Complainant, that she had an affair with one local boy i.e.
Amir. As per the medical report, there were no sign of injury on her
private part. It is stated that her hymen was torn, and she was not virgin at
the time of medical tests. She was habitual to sexual intercourse. It is to
be appreciated in light of the facts that the Prosecutrix/ Complainant
admitted, during her evidence recorded on 27th January, 2006, that she
had been married to Amir with whom she was in relationship.
9. As per the FSL and Serological report, it cannot be treated as an
incriminatory piece of evidence, as they did not find the Appellant/
Accused's semen on the Prosecutrix/Complainant's clothes. Human
semen was nevertheless detected. Learned counsel appearing on behalf of
the Appellant/Accused submitted that the Trial Court has not considered
the aforesaid aspects while passing the impugned order. The impugned
order passed by the Court below has been passed in mechanical way
without application of judicial mind and proper appreciations of the
evidences on record. Learned counsel submitted that the
Appellant/Accused has already under gone more than 4 ½ years in
custody. The incident took place in the year 2004 i.e. more than 17 years
back. It is vehemently submitted that in view of the above facts and
circumstances, the conviction of the Appellant/ Accused has to be set
aside and the criminal appeal deserved to be allowed.
10. Per contra, Mr. Panna Lal Sharma, learned APP appearing on
behalf of the State has vehemently opposed the criminal appeal and
contended that the Appellant/Accused has been rightly convicted on the
sole testimony of the Prosecutrix/Complainant and the Court below has
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By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
appreciated the facts in the correct perspective. The findings so recorded
by the Court below do not require any interference, thus, the appeal is
liable to be dismissed.
ANALYSIS AND FINDINGS
11. I have considered the rival submissions made by the learned
counsel for the parties and perused the record.
12. The Trial Court recorded conviction of the Appellant/Accused
merely by placing very heavy reliance upon the deposition of the
Prosecutrix/Complainant. Advertently, the defence was taken by the
Appellant/Accused in his statement under Section 313 of Cr. PC that the
Prosecutrix/Complainant had developed her relationship with one boy,
namely, Amir and the Appellant/Accused did not like her relationship
with the said boy as he has raised the Prosecutrix/Complainant as his own
daughter since her childhood. The Appellant/Accused tried to stop her
daughter i.e. Prosecutrix/Complainant from meeting the said boy but she
did not like the way in which she was stopped. It is also stated in the
statement under Section 313 of Cr.P.C. given by the Appellant/ Accused
that by virtue of influence by the said boy and others influential persons
of the area who belong to another religion, the Prosecutrix/Complainant
has made false and frivolous criminal case against the
Appellant/Accused. The same facts and circumstances have not been
referred or appreciated by the Trial Court while passing the impugned
judgment and order on sentence, even though, the law requires the Court
to appreciate the defense version and decide its veracity in accordance
with law.
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
13. In order to test the veracity of the depositions of the
Prosecutrix/Complainant (PW-8), it may be relevant to make reference to
her examination-in-chief, in which she stated as under:
"The accused......... On 14.07.04, the accused now present
before the court today called at about 5 am in his room to
press his head. When I went inside the room, I saw the
accused standing naked. Thereafter the accused put off my
pajama after calling me inside the room. The accused
attempted to commit rape with me forcibly. I started raising
alarm. However, the accused gagged my mouth. Thereafter
someone called from outside and the accused left the room.
I disclosed the incident to my mother. When my mother
objected to the accused, he gave beatings to her. Thereafter,
the accused continued to have sexual relations / rape with
me once or twice in a week without my consent......"
14. The relevant reference of the cross examination of the
Prosecutrix/Complainant is stated as under:
"I remember the date 14th of July as I was raped on that
day. I remember the date for today. It is 27th of January
2006. On 14th July, I was raped by the accused when he had
called me to press his head at about 5 am. (Vol. the accused
had continued to have sexual relations with me for about 15
minutes and thereafter someone had called from outside and
the accused had left). I had attempted to raise alarm but the
accused had gagged my mouth and had threatened to kill
my brother and mother. My brother is not my real brother.
The said brother is the real son of the accused and he is my
step brother. The accused used to send my mother outside
after giving her beatings. My mother was also under fear as
I had disclosed to her about the threat extended by the
accused. (Vol. on one occasion complaint was lodged to the
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
neighbours and they had also threatened the accused to
keep his behaviour good or else they will report the matter
to the police............My maternal uncle had visited us once.
His name is Raju. I have visiting terms in 2 or 3 houses in
my neighbourhood. The neighbours also used to visit us in
our house but we were not having any deep relations with
them............ I was aware that the accused was interested
to have second marriage. I do not know with whom he
wanted to have second marriage. I do not know if no
marriage took place between the accused and my
mother........... I know Santosh. He has been made a brother
by my mother, when I narrated the entire incident to
Shafeeq, the friend of my father, (accused present before the
court). He called NGOs from National Women Commission.
At present, I am muslim........ At present my name is Shaba.
At present I am a married girl. I have married Amir about 6
or 7 months back. I do not remember the date of my
marriage........"
15. There are several contradictions in the statement of the
Prosecutrix/ Complainant given under Section 161, 164 of Cr.P.C.
examination in chief and cross examination.
Statement under section 161 of Cr.P.C. of the Prosecutrix/
Complainant is read as under:
"......डे ढ़ दो महीने पहले ददन ां क 14 जुल ई 2004 को सुबह करीब 5 बजे
जब मेरी मम्मी भहर आां गन मे तक्थ पर सोइ थी और मे भी मेरी मम्मी के स थ
तक्थ पर सोए थी मेरे भ ई प प के स थ अांदर कमरे मे तक्थ पर सोय थ ।
मेरे प प ने आके मुझे जग य की मेरी कमर मे ददद है दब दे , दजस पर मे
अन्दर कमरे मे गई तो कमरे मे अँधेर थ मेरे प प दबन कपड़े के खड़े थे
........... तो अच नक दकसी व्यक्ति की आव ज़ सुन कर मेरे प प भहर चले
गए उसके ब द मेरे प प मेरे स थ हफ्ते मे अक्सर एक ब र बल त्क र करते
रहे .............ददन ां क 06.09.2004 को भी मेरे प प ने ददन मे करीब 12:30 बजे
ददन मे मुझे कमरे मे बुल य और मेरी मम्मी जो की कमर के नीचे से अप हीच
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
है को उठ के तख़्त पर बैठ दी और मुझे सर दब ने के भने कमरे मे बुल य
और ज़बरदस्ती बेड पर दलट ददय ............"
Statement under section 164 of Cr.P.C. of the Prosecutrix/
Complainant is read as under:
"Ques: आप कह ँ रहते हो
Ans: पत नहीां
.....प ां च बजे प प र मबख्श ने आकर मुझे जग य । कह कमर मे ददद हो रह
है आके दब दे । मे प प के कमरे मे गई तो दे ख प प नांगे खड़े थे।
ज़बरदस्ती मेर पज म उतरने लगे। दिर ज़बरदस्ती करने लगे। जब
ज़बरदस्ती कर रहे थे तो दकसी ने ब हर से आव ज़ दी। प प जल्दी से कच्ची
पहन कर चले गए। मैंने दचल्ल ने की कोदिि करी तो प प ने मुझे मुँह दब
दलय ......... मम्मी मजबूर थी क्युकी उनके पैर तोड़ रखे है । मैंने घर के प स
आां टी को बत य | उन्ोांने अांकल दफ़रोज़ इस्ल म को बत य | उन्ोांने िैक्ट्र ी
के म दलक हो बत य | सब ने प प को बुल य और डां ड ...."
16. The Contradictions in the statements of Prosecutrix/ Complainant
recorded at different stages of investigation, enquiry and trial are
discussed as follows:
i. In the FIR the Prosecutrix/Complainant stated that the
Accused/Appellant called her inside the room in the morning at
5:00 AM to massage her back, whereas in the examination-in-chief
and cross examination she has categorically stated that the
Accused/Appellant called the Prosecutrix/Complainant to massage
his head.
ii. In the FIR the Prosecutrix/Complainant stated that her brother was
sleeping inside the same room, where the alleged rape was
committed, whereas in cross examination the
Prosecutrix/Complainant categorically stated that
Appellant/Accused used to send the brother of the
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
Prosecutrix/Complainant outside after giving him money and the
accused/ appellant continued sexual relation for about 15 minutes
in the room, after which someone called the Accused/Appellant,
due to which he left the room. After the Accused/ Appellant left the
room the prosecutrix tried to raise the alarm, however the
Accused/Appellant gagged her mouth.
iii. In FIR the Prosecutrix/Complainant stated that on one occasion,
she informed her neighbours about the alleged behavior of the
Appellant/Accused and they had also threatened the
Appellant/Accused to keep his behavior good or else they will
report the matter to the police, whereas in cross examination the
Prosecutrix/Complainant categorically stated that the neighbours
also used to visit us in their house but they were not having any
deep relations with them.
17. So far as the injury on her person, is concerned Dr. Minakshi
Sharma PW-3, did not find any injury on her private part. The relevant
portion of the statement of Dr. Minakshi is as under:
"I have seen MLC: No. 061 dated 6.9.04 pertaining to
Poonam D/o Ram Bax aged 16 years Female. She was
brought for her medical examination with the allegedly
history of rape by her father. I examined her and prepared
MLC Ex. PW 3/A which is in my hand writing and bears my
signatures. During examination, I found bruises on left
upper arm, hymen was torn and there was no external
injury on the private area. The vaginal smear was collected,
slide was prepared, sealed and handed over to the Lady
Constable alongwith the sample seal."
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
18. The relevant portion of the statement of the Counselor of National
Commission for Women is as under: -
"On 5.9.04, I was working as Counsellor in National
Commission for Women. On that day, I received an
information from my senior Member Nafisa that one minor
girl was raped in Okhla and she has received the
information from one Santosh. On 6.9.04, I alongwith
Madam Nafisa went to the house of prosecutrix in a govt.
vehicle. We met with the mother of the prosecutrix and
prosecutrix Poonam and both told us that prosecutrix was
raped by father of the prosecutrix. Thereafter, we took the
prosecutrix and her mother to the PS. Police recorded the
statement of the prosecutrix and then, we left the Police
Station."
19. It is admitted that the Investigating Officer has not been examined.
20. The Appellant/Accused in his statement under Section 313 of
Cr. PC stated as under:
"Q2 It is further in evidence against you that PW 8 Poonam
was residing with you along with her mother and younger
brother at a plot near B-29, Gafar Manzil, Jamia Nagar,
New Delhi in 2004.What have you to say?
Ans It is correct.
Q3 It is further in evidence against you that in 14/7/2004
you called PW 8 Poonam at about 5 AM in your room to
press your head. When PW 8 Poonam went inside the room,
she saw you standing naked. What have you to say?
Ans It is incorrect. At that time, I was on duty.
Q4 It is further in evidence against you that thereafter you
put off pyjama of PW 8 Poonam after calling her inside the
room. You attempted to commit rape with PW 8 forcibly.
PW 8 started raising alarm. You gagged her mouth. What
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By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
have you to say?
Ans It is incorrect. I was on duty at that time in Jamia
University.
Q6 It is further in evidence against you that thereafter you
continued to have sexual relations/rape with PW 8 Poonam
once or twice a week without her consent. What have you to
say?
Ans It is incorrect.
Q7 It is further in evidence against you that on 14/7/2004 at
about 5 AM, you also raped the prosecutrix PW 8 Poonam.
What have you to say?
Ans It is incorrect.
Q8 It is further in evidence against you that on 6/9/2004 PW
8 lodged complaint with police. On that day also you had
committed rape with her at noon time. What have you to
say?
Ans It is incorrect. I was on duty at that time.
Q21 Have you to say anything else?
Ans I am working as a security guard in Jamia Hostels at
Jamia Millia University at Delhi. I reside at Gaffar Manzil.
This locality is Muslim dominated area. I am only Hindu
reside there. Prosecutrix Poonam my step daughter was
having an affair with a Muslim Boy namely Amir. I am a
religious person and against their affair. So, I always check
out and stopped her meeting with the said muslim boy. One
day my real son told me that someone is coming in home
and meet Poonam so I beat Poonam/ prosecutrix and also
my wife because she supported the prosecutrix. On that
issue prosecutrix Poonam falsely implicated me in this case
and send me behind the bars and got married to the said
boy. No body supported me because of Muslim dominated
area and some local Muslim influential persons supported
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
Signing Date:23.12.2021
06:16:39
the said boy. I never raped the prosecutrix. It is totally false
case against me."
21. If the evidence on record referred hereinabove, is appreciated, the
following picture emerges,
i) The Prosecutrix/Complainant is step daughter of the
Appellant/Accused and she was raised as a daughter since
childhood by the Appellant/Accused.
ii) The Prosecutrix/Complainant had a love affair with one boy
Amir and later on she got married to that same boy.
iii) There are several contradictions in the statements of the
Prosecutrix/Complainant and also as per the medical report, no
firm opinion had been given by the Doctor that rape was
committed. Therefore, the medical evidence, does not
positively support the case of the prosecution.
iv) As per the FSL report, the semen of the Appellant/Accused was
also not found on the clothes of the Prosecutrix/Complainant.
Therefore, the FSL report does not positively support the case
of the prosecution.
22. It is a settled legal proposition that once the statement of the
Prosecutrix/Complainant inspires confidence and is accepted by the Court
as such, conviction can be made based only on the sole evidence of the
Prosecutrix/Complainant and no corroboration would be required unless
there are compelling reasons which necessitate the Court for
corroboration of her statement. Corroboration of the testimony of the
Prosecutrix/Complainant as the condition for judicial reliance is not
requirement of law but a guidance of prudence under the given facts and
Signature Not Verified
Digitally Signed
By:DAMINI YADAV
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circumstances. Minor contradictions or insignificant discrepancies should
not be a ground for throwing out an otherwise reliable prosecution case.
23. The testimony of Prosecutrix/Complainant has to be appreciated on
the principle of probabilities just as the testimony of any other witness.
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.
24. In Vimal Suresh Kamble v. Chaluverapinake Apal S.P. (2003) 3
SCC 175, the Hon'ble Supreme Court has held as under: -
"21. On an overall appreciation of the evidence of the
prosecutrix and her conduct we have come to the conclusion
that PW 1 is not a reliable witness. We, therefore, concur
with the view of the High Court that a conviction cannot be
safely based upon the evidence of the prosecutrix alone. It is
no doubt true that in law the conviction of an accused on the
basis of the testimony of the prosecutrix alone is
permissible, but that is in a case where the evidence of the
prosecutrix inspires confidence and appears to be natural
and truthful. The evidence of the prosecutrix in this case is
not of such quality, and there is no other evidence on record
which may even lend some assurance, short of
corroboration that she is making a truthful statement. We,
therefore, find no reason to disagree with the finding of the
High Court in an appeal against acquittal. The view taken
by the High Court is a possible, reasonable view of the
evidence on record and, therefore, warrants no interference.
This appeal is dismissed."
25. In Suresh N. Bhusare v. State of Maharashtra (1999) 1 SCC 220,
the Hon'ble Supreme Court has held that where evidence of the
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prosecutrix is found suffering from serious infirmities and inconsistencies
with other material, the prosecutrix making deliberate improvement on
material point with a view to rule out consent on her part and there being
no injury on her person even though her version may be otherwise, no
reliance can be placed upon her evidence.
26. In Jai Krishna Mandal v. State of Jharkhand (2010) 14 SCC 534,
the Hon'ble Supreme Court while dealing with the aforesaid issue held as
under:
"4. ... the only evidence of rape was the statement of the
prosecutrix herself and when this evidence was read in its
totality the story projected by the prosecutrix was so
improbable that it could not be believed.
7. We find this statement to be contrary to the statement of
the lady doctor who deposed that she had taken the saree
from the prosecutrix and handed it over to the investigating
officer. The doctor also does not support the prosecution
story. She stated that there was no evidence of rape, no
injury on her person and that she was a "multi-persons
lady". We are unable to comprehend what exactly this term
means and in the context that it had been used, we assume
that she was a lady having regular sexual intercourse with
several persons.
8. We also find that as per the prosecution story the
appellants were missing from the village on the date that the
prosecutrix also disappeared that is 7-2-1999 and though
they came back to the village on 11-2-1999, the FIR had
been recorded after three days although they had been
interrogated by the investigating officer on 11-2-1999 itself.
The very fact that the investigating officer has not been
examined also causes prejudice to the appellants. As per the
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doctor's evidence the petticoat and saree had been handed
over to the IO. These articles were not sent for examination
nor even produced in evidence."
27. In the case of Johny @ John David Sheri v. The State of
Maharashtra 2018 SCC OnLine Bom 981, the Hon'ble High Court of
Bombay has observed that non-examination of the mother, when the
testimony of prosecutrix suffers from infirmities, becomes an important
factor to cipher the suspicion. The relevant paragraph has been
reproduced as under:
"14. It is well settled that when the available evidence
against the accused suffers from infirmities and is doubtful,
then non-examination of the material witness becomes an
important factor to cast shadow of doubts on the
prosecution case. In the case in hand, the prosecutrix has
initially disclosed the incident to her mother. As per the
prosecution case and version of the prosecutrix, it was her
mother, who had insisted her to lodge report against her
father. That is how, the prosecutrix went to P.W. No. 2
Manda Alfred Sheri. The first version of the incident was
heard by the mother of the prosecutrix from her. Therefore,
mother of the prosecutrix was an important witness in this
case. No reason can be gathered from the Record and
Proceedings as to why the mother of the prosecutrix is not
examined by the prosecution apart from not cross-
examining the prosecutrix by declaring her as hostile."
28. In Raju v. State of M.P. (2008) 15 SCC 133 the Hon'ble Supreme
Court has held as under:
"10.... that ordinarily the evidence of a prosecutrix should
not be suspected and should be believed, more so as her
statement has to be evaluated on a par with that of an
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injured witness and if the evidence is reliable, no
corroboration is necessary.
"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 ... 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."
29. In Tameezuddin v. State (NCT of Delhi) (2009) 15 SCC 566, the
Hon'ble Supreme Court held as under:
"9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story is
improbable and belies logic, would be doing violence to the
very principles which govern the appreciation of evidence in
a criminal matter."
30. In the case of Manoharlal v. State of Madhya Pradesh (2014) 15
SCC 587, the Hon'ble Supreme Court has observed that in cases where
any parent or brother has not been examined to corroborate the version of
the Complainant, the court cannot rely upon the sole testimony of the
Complainant, and shall grant the appellant benefit of doubt. The relevant
paragraph has been reproduced as under:
"9. Having found it difficult to accept her testimony on its
face value, we searched for support from other material but
find complete lack of corroboration on material particulars.
Firstly, the medical examination of the victim did not result
in any definite opinion that she was subjected to rape.
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Secondly, Riyaz who was like a brother to the victim and
thus a close confidant, has not supported the case of the
prosecution and has completely denied having met her when
she allegedly narrated the incident to him. Thirdly, the
person who was suffering from fever and to whose house
she was first taken by the appellant was not examined at all.
Fourthly, the policeman who the victim met during the night
was also not examined. Fifthly, neither the brother nor any
of the parents of the victim were examined to corroborate
the version that she had come from the village of her
brother and alighted around 10.00 p.m. at Bajna Bus-Stand.
Lastly, the sequence of events as narrated would show that
she had allegedly accompanied the appellant to various
places. In the circumstances, we find extreme difficulty in
relying upon the version of the victim alone to bring home
the charge against the appellant. We are inclined to give
benefit of doubt to the appellant.
"10. We, therefore, set aside the order of conviction and
sentence passed against the appellant. The present appeal is
thus allowed and the appellant is acquitted of the charge
levelled against him. The appellant who was released on
bail, is discharged of his bail bonds."
31. In the case of Hirianna Shetty v. the State of Mysore 1971 SCC
Online Kar 267, the Hon'ble Supreme Court has held that non-
examination of the Investigating Officer is a serious infirmity resulting in
prejudice to the accused. The relevant paragraph has been reproduced as
under:
"10. It is clear from the above decisions that the
examination of the Investigating Officer is necessary in
order to bring on record the contradictions in the Statement
of witnesses and that such a right is a valuable right of the
accused. Further, it is clear that non-examination of the
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Investigating Officer is a serious infirmity in the prosecution
case in so far as it deprived the accused of the opportunity
to show to the Court that witnesses were not reliable
witnesses by proving contradictions in the earlier statement.
Thus, in my opinion, the non-examination of the
Investigating Officer in the case is a serious infirmity
resulting in prejudice to the accused and therefore, the
conviction and sentence passed against him are liable to be
set aside."
32. In the case of Dharmendra v. The State of Maharashtra,
Criminal Appeal No. 170 of 2017, the Hon'ble High Court of Judicature
at Bombay, Nagpur Bench vide Judgment dated 8 th January 2018, had
discussed whether the tearing of hymen will amount to sexual assault on
the victim, to which the Hon'ble Court had stated as under:
"14. No doubt, the medical report suggests that hymen of
the victim was torn and that sexual assault had occurred.
The victim was aged seven years. PW 8 Dr. Jaya states that
it cannot be stated whether the injuries were painful or not
at the time of examining the victim. She states that there
may be other reasons for hymen tearing and tearing of
hymen is possible if a child is involved in the sports
activities. She states that tearing of hymen is possible if a
girl child is living in unhygienic condition and there is
itching to her private part and if she scratches it by her own
finger. She states in response to the query that the minor
girl of seven years is capable of sexual intercourse. In view
of this, it is not possible to confirm the finding of the
Sessions Court that there was a sexual assault on the victim.
15.In view of above, we are of the view that the oral
evidence of the witnesses relied upon by the Sessions Court
is untrustworthy and not of credence to hold that the offence
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against the accused is established. Neither the oral evidence
and the medical examination report by PW 8 Dr. Jaya nor
the report of the Chemical Analyzer can be relied upon to
hold that the accused committed sexual assault on the minor
child. The evidence on record is short of connecting the
accused with the crime alleged and the possibility of
falsely implicating the accused cannot be ruled out. It is,
therefore, not possible for us to sustain the findings
recorded by the Sessions Court holding the
appellant-accused guilty of the offences charged and he is
required to be acquitted for want of reliable evidence of
committing an act of rape on the minor child, being in
relation as niece."
33. In the case of Sadashiv Ramrao Hadbe v. State of Maharashtra,
(2006) 10 SCC 92, the Hon'ble Supreme Court has held that in the cases
where there are serious doubts regarding the sexual intercourse, the
benefit of doubt has been provided upon the accused. The Hon'ble
Supreme court after analysing the facts of the case, held as under:
"....10. In the present case there were so many persons in
the clinic and it is highly improbable that the appellant
would have made a sexual assault on the patient who came
for examination when large number of persons were present
in the near vicinity. It is also highly improbable that the
prosecutrix could not make any noise or get out of the room
without being assaulted by the doctor as she was an able-
bodied person of 20 years of age with ordinary physique.
The absence of injuries on the body improbabilise the
prosecution version.
13. The Sessions Court as well as the High Court had not
taken into consideration the absence of spermatozoa in the
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vaginal swab of the prosecutrix. It may also be noticed in
the FI statement. In this case the prosecutrix had not given
the full description of the incident allegedly taken place but
when she was examined in court she had improved her
version.
14. On a consideration of the entire evidence in this case,
we are of the view that there is a serious doubt regarding
the sexual intercourse allegedly committed by the appellant
on the prosecutrix. The appellant is entitled to the benefit of
those doubts and we are of the view that the High Court and
the Sessions Court erred in finding the appellant guilty. We
set aside the conviction and sentence of the appellant...."
34. The Courts while trying an accused on the charge of rape, must
deal with the case with utmost sensitivity, examining the broader
probabilities of a case and not get swayed by minor contradictions or
insignificant discrepancies in the evidence of the witnesses which are not
of a substantial character.
35. However, even in a case of rape, the onus is always on the
prosecution to prove, affirmatively, each ingredient of the offence it seeks
to establish and such onus never shifts. It is not the duty of the defense to
explain as to how and why in a rape case the victim and other witnesses
have falsely implicated the accused. The prosecution case has to stand on
its own legs and cannot take support from the weakness of the case of
defense.
36. It is settled law that unless the offence of the accused is established
beyond reasonable doubt on the basis of legal evidence and material on
the record, he cannot be convicted for an offence. There is an initial
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presumption of innocence of the accused and the prosecution has to bring
home the offence against the accused by reliable evidence. The accused is
entitled to the benefit of every reasonable doubt.
37. The Hon'ble Supreme Court in Tukaram v. State of
Maharashtra (1979) 2 SCC 143 has held as under: -
"16. Secondly, it has to be borne in mind that the onus is
always on the prosecution to prove affirmatively each
ingredient of the offence it seeks to establish and that such
onus never shifts. It was, therefore, incumbent on it to make
out that all the ingredients of Section 375 of the Penal Code,
1860 were present in the case of the sexual intercourse...."
38. In Uday v. State of Karnataka (2003) 4 SCC 46 the Hon'ble
Supreme Court has held as under:-
"21. It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom
she is deeply in love on a promise that he would marry her
on a later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact within
the meaning of the Code. We are inclined to agree with this
view, but we must add that there is no straitjacket formula
for determining whether consent given by the prosecutrix to
sexual intercourse is voluntary, or whether it is given under
a misconception of fact. In the ultimate analysis, the tests
laid down by the courts provide at best guidance to the
judicial mind while considering a question of consent, but
the court must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar facts
which may have a bearing on the question whether the
consent was voluntary, or was given under a misconception
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of fact. It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent being
one of them."
39. The Hon'ble Supreme Court settled the law that the prosecution
has to prove its case beyond reasonable doubt and cannot take support
from the weakness of the case of defense. There must be proper legal
evidence and material on record to convict the accused. The conviction
can be based on sole testimony of the prosecutrix provided it lends
assurance of her testimony. However, in case the court has reason not to
accept the version of the prosecutrix on its face value, it may look for
corroboration. In case the evidence is read in its totality and the story
projected by the prosecutrix is found to be improbable, the prosecutrix's
case becomes liable to be rejected.
40. The instant case is required to be decided in the light of the
aforesaid settled legal propositions. This Court is of the view that the
given facts and circumstances make it crystal clear that if the evidence of
the prosecutrix is read and considered in totality of the circumstances
along with other evidence on record, in which the offence is alleged to
have been committed, her deposition does not inspire confidence. The
prosecution has not disclosed the true genesis of the crime. In such a fact
situation, the appellant becomes entitled to the benefit of doubt.
CONCLUSION
41. In view of the above, the present appeal succeeded and is allowed.
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42. The impugned judgment dated 18th July, 2006 and order on
sentence dated 20th July 2006 passed by the learned Additional Sessions
Judge, New Delhi, wherein the Appellant/Accused was convicted for the
offence punishable under Section 376 of the Indian Penal Code, 1860 is
set aside. The Appellant/Accused is on bail. His bail bonds stands
discharged.
43. Before parting from the case, I would like to record my
appreciation for Mr. Anuj Kapoor, learned counsel appearing on behalf of
Delhi High Court legal Services Committee (DHCLSC) for rendering
commendable assistance to the Court.
44. Pending application, if any, also stands disposed of.
45. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
December 23, 2021
Pallavi
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