Criminal Appeal (Deb} No. Tsb Ef ... vs The State Of Dharkhand _ Re --\
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IN THE HIGH COURT OF JHAREHAND AT RANCHI
iCriminal Appellate Jurisdiction)

Criminal Appeal (08) No. 1013 of 2016
With

Criminal Appeal (DR) Ne. S46 of 2016
With

Criminal Appeal (DE) Ne. 73 of 2016
With

Criminal Appeal (DEB} No. TSB ef 2016

  
 

 

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ft. one. Ansari @ Md. Faruque, R/fo
AEE » Masiid Ga . Tos pa, Beh BPS ~Torpa, District: 'Khount
~ . Appellant

  

The State of dharkhand _ re --\... Respondent
Te Cr iminal Appeal (DR) No. 546 af 2016: oy

Chandan Kumar, S/o Kishun Sahu, R fo Village-Masiid Lane
Torpa, B4O.-Torpa, PS. "Torpa, District Khunti .. Appellant

  
  
   

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The State of Jharkhand a ... Respondent
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"Torpa, Uhstrict- -Khunti

 

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he Shate of Tharkhand - ... Respondent
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Chhotoo amar, S/ G arm Ss Sahu a, Ry uo Village-Teh Toh, BiG. &&

B.S.-Torpa, (istrict-Khur ... Appellant

The State of Jharkhand .. Respondent

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fHeard through VC. on PS" & 1S" March, S097}

PRESENT
NON'RLE MR. JUSTICE SHREE CHANDRASREKNAR
HOWBLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants} > Mr. Ant Kumar, Advorate
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Indian Fenal Code. The prosecution has examined sight witnesses to prove the charge against them; the victim girl was examined as PW. During the trial, Piro] Ansari who was on bail got invelved in Rall PS Case No. 31 of 2613 and he was lodged in Tihar Jail since UO, 10.2013. This fact was not brought to notice of the trial Judge and the prosecution, continued to examine the witnesses as the acchacd were represented through their counsel. When statement of the accused was to be recorded under section G13 CrP since "ira Ansari remained absent the bail-bonds furnished by him were cancelled and the records were separated vide order dated OF 2015 ~ split LHP « record-was numbered as Sessions Trial

AVY20 ba production warr ant was issue 'dard when Firoj

Ansar} Was produce a from, Tihar Jail he was 'offered opportunity ta

ie ad evidence in defence and finally vide order dated 12.04.2016

XM

8 ; defenc e was closed. Su Roe pi osecution evidence against all the

oe

agcised was carmmon and examination of Firoj Ansari under

"section GPS CrPc sepe arately would | have oe impact on the outcome

af the case, vide arder dated OY.05. 2016 both sessions trials were

a

vamalgamated and by a 'common judgment dated 20.05.20 1 & the

Qo f gz

appellants, Were CONN icted under section O76(2}(g}) of the Indian

Penal Cade, Th es wer

.

8 heard an the point of sentenc ce ard by order dated 26.05.2016 sentenced to Rul-for 1G years with a fine of

meg

Rs, SOOGQ/- each uncer section @76(2Kg) of the Indian Penal Cade,

with a default stipulation to undergo SJ for ene year.

ne

The learned Sessions Judge has held as under:

"The ieevned defence course! furtier drew the atianiion of ihe sour and subnitied at ihe doctur has aguned Mal no axtemal and infernal infury wae four nef an fhe private part oF ihe

violin and as such the allegation of rape cannot Se said ia have been aslablished beyond doubt pu # is setted law thal mere fect theft ne syunes were found on the private part of the vietin

mango Be a graund fo bold thal ao rage was coninitted upon Rex 7 find # relevant to arerition here al ihe cost of rapefifion of x. <

i

acts that f Fave already opined dura; fhe discussicyt of fhe

evidence in aforesaid paras of ihe judginend thal ihe victim PUA4 has unppbutfediy and cansisianty slated fhe fact of rape commited upon her by the accused parsons and ihe Sane has eeu? Aly corroboraled by "8 Ext-5 and PMA and PAS and the same have not been disturbed by fhe defence throughout ie tral } have also given finding inal the presence of ail the

acnuseny parsons duang lies occurrence have nol been rebutied by ihe accused persans as ther is no explanation forthcoming frorn fhe accused persons regarding their presence af ihe lime OF OGOueACE which is ig Sirong mifating clroumetanoe againal ihe

an

SyRoinsd Appest CRB Na, MO af MGS Wad

Cahisinnld Agepesd GBBT Na S45 of 2026 WER

Criminal Agpead (558) My, TST ad ES eR

Crintisal Append (PH) Nu, 236 of BEA

BOCUSRA Persons and as such the guilf of he accused Dersas is, fo my mind, conclusively proved. His aise satied law that the festimony of ihe victim of rape i eppreciafed in the back ground af antire cease and Aer svidence Is enttied io gel weght absence of corroboration notwtstan Wg. Has seltied jaw that fhe victim hes 90 control svar Gre # rivestigat ing agency and regigence eof }O cannot affect fhe crediinvily of the statement of the viedim. i is well seiled faw ihet i orminal inal even & the invest gation ia defective ihe rest oF the eviveACE must be serutinized indeperrtentiy af the impact

of fhe defects in the invest gation athenvise fhe oniminal tial edit piunnnes iG the level of Investgalion end the enminal gal should

AM be made exsual hes for any fanses commited by ihe investigating officer His found fo be relevant fo be mentioned bere May i Save already been opined about ie unrsbutied anc conaisten nf evidence of the victim aret fhe same have heen con oborals sel by other wiitesses fo whom fhe victim Faye wraisd the occurrence in details. Moreover f find from the evidence of the iO thal the Jnaier irs which ihe investigation has been made. by thedQ isin acconmance wi vithy aw and fhare & BO Jepses: "an the vestigation on. fhe. ba: awis. OF iwhioh tte IVRSUGSHON Can De said fo be defective in jaw

Hence an the heals of discussion? and analysis of eritire

gamut af evidence Both oral.and document fary and fadings of mune Given during discuasions as aforesaid { furtied nd tat and

hold frat ihe prosecution Aas fean able to demonstrate and ) the charges of pape against the accused persans by

cH record. fn, coasisient rofiable. con RAG and. ale evidersey of fhe ranarcd ane! ar cordingly f Fined all the

#8eg Paysons namely Giioioa Kumar Chandan Kumar saved Hussain © Mar nua and Firof Ansar @ Munna guilty us SP R2NG! of the fac ae Penal Cade and accardingly they are oonvioted

+. Sexual violence to a woman shatters her self-esteem and causes inn casurable damage to dignity and sanctity of the vietim. In "BSodhisattwa Gautam v. Subhra Chakrabarty" the

S

Hon'ble Supreme Go urt has observed that sex crimes destroy the

entire psychology of a wotnan and pushes her into deep emotional crisis. "State of Punjab vu. Ramee Singh" held that sexual violence ig a crime against basic buman rights and violates the victim's most cherished fundamental right, namely, right to life enshrined in Article 21 of Constitution of India, More than a century after the

irehian Penal Code was brought to the statute book sections 228A,

SYOA and other amendments were made in the Indian Penal Cc Dore:

sections 17S and 327 CrPC were arnenidled, arid: section 114A we incorporated in the Indian Evidence Act. It was a heart wrenching

ch

tale of a tribal girl from Maharashtra raped at the police statior

comumorniy known as Methura case" and solidar ity rmovement taken

taharashira (PO F793 2 SCO 143

"y

tat

Cadartoat Agprad a Na, 14s a RBS Wh

Crigdual Appr} GIRPNo, So af MR Wid

Cirkuipat Append (Sy Se. VOT oP BRS With

Crbuiscad Augtol GBT No. 73 a AS

te the streets by wornen's group in support of a rape survivor Maya

Tyag? whose husband was shot dead for protesting te her

alternpted molestation by the police which led to further legislative activity in this area of law. A change came calling im judicial approach also and the Courts accepted testimony of a victim of sex eririe without corroboration to record conviction. In "State of ALF v. the Norble Supreme Court has observed that the Courts reed not look for corroboration for minor details in the testimony of the vietim; in "State of HP v. Lekh Raj" a plea based on absence of spermatozoa curing vaginal examination. of the

prosecutrix was.held- irreleve ant, and in "State of Rajasthan v.

NERY "absence of infu ry on 'the vic tim girl and ron-exatnination of

LS

the person to whom she confided about the commission of offence

'ere held trrelevarit.

Prior to 2013, amendment, section SYS inchided six cIrcuimatances urkier which -- sual intercourse with. a worn

amounted fo rape, The fp allowing six descriptions af. 'sexual

infereccurse with a wortan were provided under section 375:

PSPS, Rapes A man is said io3 commit' "pape" who, ONCE inthe. case hereinafter excepted, has sexual intercourse wi ith a wornan under circumstances. falling under any of the aie. Al owing descriptions

Pgh Against her will.

Secondly Wenout her consent

¥ hirdly-- WR r consent, when her consent has been obtained by guifing her-ce any person inwham she is Interested in fear of death or of hurt.

Fourth With her consent, when fhe mn

an knows that he is not her hushand, and that her consent is given because she believes that he is another man to whom she is or believes herself to be fawhally married.

Fithig-~ With her consent, when, al the time of giving such conser, by reason of unsoundness of rind or nfoxicatian or the adrninisiration by him personally or through another of any. stupetying oar urwhalesame substarice, she is unable fo understand the nature ari consequences of that fo which she Q ives comsent.

oe yew With or without her consent, when she is uncer cndaen

gars of age Cvntanation. we Pertration is scuficiant to constiute the sexual inferaourse necessary to the offence af rane.

Excapiion-- Sexual infercourse fy a man with Ris awn wife, ihe = "Bes auantanonttnsateennmmanti wife not being under fifteen years of age, is not rape.

NOAe Cline AL 87S

cand her evidence is n lots seen. like. that of an accomplic te req

o> Cpiucoat Appeal (AS} No. HOES of 11S Wath Crimingd Apps} UW Ne S86 oF D Wa Cichutnat Aggeat GOR} No, TAT Ae BOL Wits Colmtisad Apgest GRY NG, TH of BE

aS

&. The first three clauses of the definition of rape are in a way interconnected and overlapping also. For exanniple, sexual ntercuurse with a woman against her will may be construed

x

without her cansent, and it is rape when her consent is obtained

by fear, force or fraud and also when she was not in full possession of her senses. The definition of rape has undergone a sea cCnange

and the law as it steod pricr te 2013 provided that slight

genetration was sufficient to constitute the offence under section

- ~ S

376 of the Indian Penal Code. The explanation to section O75 of the Indian Penal Cade provides that penetration is sufficient sexual

milercourse neces gary to constitu te t ne -Offe ence of rape- slight

penetration, ig Sufficien i.

Feo "A wictim of sex cua off fence As "competent witne g8 under section 118 of the India an Evi dence Act. She is not an acc Onnp Nites

LUPINE

sorrakx oration. Ubusi tration, (b) Htos ection Lid of the indian Evidence Act provices that an accon nplice ois | unworthy of credit unless he i is

corroborated in material, particula ars. However, section 133 of the Indian Evidence Act which provides that an accom plice shall be a

competent witness eat, the same time clarifies that, a conviction is

gal mere

mR

Th ot Tuas

ly because as based on uncorroborated testimony

of an ac complice . 'The rule of corrobor ation whic h was in practice

since long became a rule of law. after "The King v. Baskerville™. Lord Reading C.J. has written as under:

"There is nc doubt thal the uncormboraied evidence of

an scoamplice iS acimissible in Jaw...... Qui a pas long dean @ rule of f practice at comynan law for the jucige fo warn the hay of

the Sanger of condeiing a prisoner ci ihe unconoberated iestrmony of ar accomplice or accampiices, and, in ihe discretion of fhe judge, to advise thern not fo convich upon such avidence; bul the fade shoud point out io ihe jury that ib is within. Meir legal province fo cenviol ua such uncon finned avideance.... This rule of practice Aas becume vinually equivaler to a mie of jaw and since the Court of Crintaal Appeal name inf operation thia Court has heid thal, in ihe absence of such 3 warning by tre judge, ine conviction must be

quashed bese if afiar the proper cauflon by tre jucge the jury AAVvea -- convict fhe priscner this Court will nof quash fhe

cumicion merely upon ie ground ihaf the accumplce's fastimony was ungorroborated,"

"yy ed 7 Re

8. 'Baskerville' held sway in its time and the opinion of

& C918) 2 eB. "858

<A

3 material particulars and the re is srr prohibition in law 'to be

"th CVeywqek egrer the Court was

wnd

Cykainad Appert CARY Go HHS al RAC RAE

Urkuiastl Sppert [82 Na, Sos of BES W3sh

Oronixel Apgesd GRY No, TT alate Wik

Oriminat &pyesd NB Noy 748 of L008

the learned Chief Justice was accepted by the Courts in India ~ Rarneshuwar uv. State of Rajasthan" "seems to adept a simular rule in

the cases of sexual offences. The Hon'ble Supreme Court has

"Thal, ff vy coinion, Is exachy ihe flaw i india so far as ACOUTYNIGRS are concerned and if is ce Hainiy sof any higher in ihe case of sexual offerors. The only clarification necessary for purposes of ths S country is where dis class af offence is sometimes ined by a yidge whhoul {iss aid of a jury in these Gases is Necessary that the fudge should give same indication in fs jedgment thal he has had this ave of caution in mind and Should proceed fo give reascis for considering & unnecessary gi require corroboration on ihe fects of the parficular case iesfore fim? and show why he considers if Safe fo canviet without corchuraiion ia thal panicular cass. | am af apinion that ihe igartad # & Geet Jusgesowere wrnpin thinking that they

ak uid Bok aag pated oF fa, canwict without cormboration. .

B. | The Indian Ey idence Act does not. provide that evidense

of a victim of sex crime. cannot be ace epted unl 588 C corrobor ated in

ed ay Be Y,

%

conviction on uncearrober ated testimony of a prosecttei. | Mer

of

evidence in the Court is given the SAME weight as is attach ed to an

"infured witness in cases of phy sical violence and is ex: amine d with _ the same degree of care and caution. In a catena of judgment Ss the

: Hon'ble, 'Supremc Court has) observed that it is. improper and

undes as irable to test evidence of a prosecutrix with, a certain amount

Re

of suspicion, treat ing

is she were: an ac complice. Ne doubt 2

certain degree of '

x

Hon'ble Supreme cay bat stimnariiy 'those are the cases in which hesitant to place implicit reliance on testimony of resecutrix. In such cases the Court may look fer evidence veh would lend assurance to the testimony of the proseoutrix iyut the rule af corroboration cannot be applied in every case. The asi ward seems to be that the testimony of a prosecutrix though comumands great weight the same cannot necessarily be accepted mecharioally; ta indicate the expression used by the Hon'ble Supreme Court ~ itis not ke a gospel truth.

16. PW owho ia father and PWS who is mother of the mrosecutrix have came im the witness-box to support and corroborate complet nt of their daughter against the accused, PW

& AIR 1989 SC: 54

S Criaissat Apyes! GHB Na. Ud of MS

Wak

Dybninad Appeat NW Na SSF Ae Rk

Wiring Kpaeet (OR: Mar, TAT ot IOS

WH CHixtoal Agnyad 83} Na. Rao Re

has stated that his daughter was a Class-IX student in the High School, Torpa. ft was about two years ago she had gone to Block fer residential certificate when four berys had forcibly taken her away. He has identified his awn signature over written report of Ins daughter. In his cross-examination he has stated that he did net read the written report given to the police; his daughter did not inform: bim whe offended her, and; he does not know what

happened to his daughter. He dealt another blow to the YS

eae

srosecution by saying that his statement was not recorded by the

police, His wife has, however, stood by the daughter. In her cross-

examination PWS. who is. the. wile of PW i h as stated that when her daughter-¢ ame back b ome. and nattated: the: inc cide nt her hushbarid

WAS TROL abe) OMe, but al iter. he came t back: she told him the whole.

Stary.) She has stated: th nal about two. years bac ee Chhotoo Kumar,

- Chandan Kumar, Rohit: an @ Munna took away her daughter see

ravished her. Her daught 7 n nformed her that in past, also ate

ws used had forced themselve es upon her. In her cross- exe amination she has admitted that the a cused. were nat known to her and they

Were shown to her by her diate when they were put in jail.

il. -- PWS, the /prosecu {TEx has stated that in. the morning of

23.09.2014 leat about 10:00 AM, she 'had gon ie to 'Tor pa Block fer

residential cer rtif as veel he accused can ne | the vand | forcibly tank

Xe

her one by ¢ ane, She reached home around 64:00-05:00 PM ancl

narrated the incident to her mother and next day submitted

written report ta the police. She has affirmed that her statement was recerded by the Magistrate. But what happened next was 4 severe jolt to the prosecution, albeit momentarily. She has made such staternents in her croas-examination which create doubt on fer own story of abduction and rape by the appellants. She has

Stated that there was a police station adjacent to Torpa Block: there are about 1Q0 shops there, and; nearby bus stand used to be abvays crowded, She has further stated that she raised Rhulla when the accused were trying to forcibly abduct her and the police

brought all of them to the police station but after some time she

=

Cohuctort Appeal (5 With

eame back home. She seems to disown her written statement and stated that the police took her signature om blank paper.

ig. Mr. Afit Kumar, the learned counsel appearing for Fire} Ansari would contend that delay of even one day in lodging the First Information Report was sufficient to cook up a false story to implicate the appellant in the case. The submission is that en her own adtriission the prosecutrix was not assaulted by the appellanis much less sexually and the medical evidence completely demolishes the prosecution case.

LS. A witness who does not support the prosemution im the Ceonrt and takes a "position. that he knows nothing about the eecurrence ar denies his statement made befor ethe police under section 161 CrPC is called hostue witness. > For long, the judicial

opinion was divided as te what value should be: attached to

evidence of a witness who did not support the case of the party

mf

ealling him in the Court. Campbell, C.J. has observed in "Faulkner uw Brine* that the obiect of cross-examination of his own witness

narty is to discredit the witness in toto and to get rid of his

a

ny

testimony altegether. Hi seems that the opinion of Carnpbell, OJ. gee ¢ ot ened so REP 2ae Neste dies ory Rev se age it - oe "| k oe ore > was adopted in "Khifruddin v. Emperor' " but around the same ime a discordant note was struck by Terrell, J. in "Sohrat Sao v. Emperor' who held that admissions of a witness in the cross- examination by the party calling him can be relied upon by the party calling him. The law on the subject was finally settled by a judgment of Full Bench of Calcutta High Court in " Prapyiulla Kumar Sorkar uo Emperor'. Rankin, C.J. has written in his opinion fat p. 1428-S0 af the report):

in my opinion, the feet thaf a witness is dealt wilh oadeyr

Sertion 154 of ine Evidence dct, even when under that section hs

is 'cmes-evarnined' fo credit, in no way warrants a direction to the

Riry that they are bound in law to piace no reliance on Ais evidence,

or fhat ihe narly who called and cross-examined Aim can take fo

advantage from any part of his evidence, There is mareover no fie

of law that # a jury thinks that a witness bas been discredited on one point thay may nof give credit fm him on anather. The rie of jaw

is that Wis for fhe jury fo say."

14. In "Dahyabhai Chhaganbhat Thakkar v. State of

2 AR 1930 Pat:

? f 13 AR £93} Cab 401

18 Hrtonina} Appent (DEp Sy, ET at gas WHR Urol Agonat {133} Na S48 af LER Wik Caine Spnwatl (Os) Ra, PAP oF 2G WHR Unesingl Append EGE Ne. 788 of MOU

"she Hon'ble Supreme Court observed that section 154 of the Indian Evidence Act is wide in scope and the discretion is entirely left to the Court to exerciac the power when the mrcumstances demand. it was further held that section i[o4 confers a discretionary power on the Court to permit a person who calls a witness to pul any questions ta him which might be putim eroas-examination by the adverse party. Now the law which scems to be fairly settled is that the evidence of a witness who cid nat

support the prosecution is examined with care and in the context

im, m3

sf other evidences led by the prosecut tien. A part of the evidence of

an UASUPROTES re. witne 286 ei. supports 8 th 1 'prosec ation can be used

and his evider Ss ce is s not disear ded i in entirety and the prasec ation or

eh

the , defence ean rely on a part oft the evidence af a hostile WITNESS.

ini tially, "in the cross- examination the prasec atrix appears. te have

made some statements unfavourable to the prosecution but

t

thereafter she has again reiterat ted her story and stood to her grotunds that the appellants have committed rape upon hero

is.

pore, Poh,

beni

n her cross- exami ination, the victim girl has stated

gh a EPERAS

ay GRE oF GY Ds SRE ; Bpto FE BX English Translation:

"8, Whee } was fake? away fucefully, | raised fiudle. Many

persona fad come, the police ais 80 arrived, The police fo0k me te fhe goline siation and then | retumed home fram the poiice afadon,"

16. From the aforesaid, it is apparent that the statements elicited from the prosecutrix were not in the context of her previous staternent before the police. The questions put to her in the oross- examination were entirely unrelated and contrary to the materials on record. Ne question was put to the father of the victim girl or the investigating officer that the boys were apprehended by t the

acal people and brought to the police station but a report was not

lodged against them. We further find that no witness was examined

IS

by the defence on this issue. In "Sakhawat v. Crown' it was

x ti Ceinviont Appeal (£03) Na 18t3 af Bis

Coinsfaat Appent LORy Ne S46 of MS WHR

Onimtad Agnes GET Nay PRT af Sak

Crimdial Appest (RBI Ng FS af A

observed that comtraciction means the settme up of one statement against another and mot the setting up of a statement against nothing at all. The cross-examination of the prosecutrix in paragraph nos. 7 & 8 was next with reference to her previous statements and her staternents made therein cannot be used ta

eit

discredit her. The evidence of a witness is read as a whole and first endeaver of the Court weraid be to harmonise statements of a witness which may sometime appear to be inconsistent - in the process of harmonizing miner aberrations are best ignored.

LY, The inveatizating officer has recarded statements of the prosecutrix and her parents the same day arkd in their statements ander section 161 CrPC they have fully supported the prosecution ease. The mother of the ee tris who supported her has deposed in the Court that-her daughter came home crying and next day she had gone to the police station to lodge the complaint. She has atated that by the time" the "Prossculrix Was exe amined in the Gourt she was married. The crass-oxamination of the progecutrix was deferred by two days and this period appears to have been wtiliged by the accused or her own family members to persuade her ta change her mind, That appears to be one reason why she has made f le statements favouring the accused, bat soon after that ahe has agam stood to the truth. To a Court question she has

t

stated that her statement about the incident was written by a

police on her dictation and that was read aver to her and thereafter she put her signature on that. She has stated that she had shown her injuries ta the docter and in her statement before the Magistrate also she has stated that Chhoteo Kumar, Chandar

Numar, Javed Hussain and Fira] Ansari had committed rape upon

her. The investigating officer has stated that the place of evourrence was a barren forest area and there was a ditch. The prosecutrix was acquainted with the accused and she has stated that she had ne idea about rape before 22.09.2011. According to her, on previcus two-three occasions also the accused ravished her

but keeping in mind her statement that she had no idea about rape

before 23.09.2011 the previous instances were anything but short

Mb nge

S AE

ane RD

Criminal Append (28) No. WHS ASS WE

Ceieuinat Spneat sO8s Ne, WF of RIS Was

Stein Sppert LQ} No. TAY at TG Wh

Tokay Appreat WEY No, TER af 25S

of ofenaive to her. Qn 23.09.2011 when she was taken away by the appellante she might not have offered much resistance for this reason, but this time she was sexually ravished by them. We. are mclined to accept that testimony of the prosecutrix about the

appellants sexually ravishing her in the past was exaggeration but

fer this reason her testimony cannot be discarded in entirety -- exaggerations per se do rat brittle the evidence. The offence under section S76 of the Indian Penal Code constitutes a different kind of crime and it is well settled that a voir dire statement of the victim of S8X crime ig more than sufficient te record conviction under section

376 of the Indian Penal. Code, provided -her testimony is free from

denabt and: de es not suffer from any inhere ent "improbability ar

embellishment.

18. 2, "The prosec tris sa reliable and trustworthy: witris SOS

ud notwithstan ding that. her ow mn father and neutral avitnesses

have not supported her in' the : Court her testimony has remained

unscathed on the core of the p prosec ution case. She is supported by

her mother and medical evidence puts a seal of truthfulness on her. & estimony.

19. fa The 2 medical examination. of the _ Pro osecutr ix was

condtic sted by: Dr. Rashmi Romila Sanga- one 25, 09. 2011, The

-elevant ¢ portions ofthe opinion. of the: dot stor an €. extracted below:

"Genes -Ex xayNn ation: Patent is. average "palit bypaal wel

developed. Axaiilany hai fin and sparse, piduc hair thick and Sparse. Height-I4é8 cm, weighhld Kg, manstual histary LAF

25-06-17, patiant is menstruating. Regarding age: No. of feet 88, up. 44, lower jaw 74,

According fo ray. -ray of aight "elbow jolt plate No, R-64F Galed 25-09-2077, medial epioondyie fused with Jower end. Head of radius fused wilh shalt, Qlecrarion partially fused. X-ray of wrist join! plate No-R-67 dalfed 28-09-77 distal end of radius gartaily fused. Distal erst of Uina partially fused. X-ray of Pehas Plata No. RST dated 25-09-77 iliac creal nad fused. Local Exannnation: No extemal injury over arty part of body. Dxamination of Vive and thigh: No injury aver Vulva and thigh. infrofiue admits one Ringer Gld nasture of hymen. Examination of Vaginal Swab: Paihulogical examination of slide Ne apenmatozaa found an alide.

Opinion Vielin age is belween 4 fo 78 years. No evidence of

58) cual ierourse af the fie of ? examcoton, Nie external or invent infugy seen on private part"

a}. The injuries on a vielim of sexual offence may be found

around her @) cheeks, lips and neck, 1) wrist and arm, (i) on the

2 The doctor has | tated that X-ray of right elbow

the prasecutriox which wa

sy j 3 Qrimdial Append LBB No HF 6E RIG With Criminal Append EN) Sa. Sas GP RUS ANS

Choon? App ee TSF OF NBS

Cirintined Apert CHA Na. YO gf UTS

at

back due to fall on the ground, fly) the inner sides of knees and thighs, and (} on the breasts from rough handling. The age, physical development and class of society to which the victim belongs sre the factors which decide the resistance offered by the prosecutmix. A feeling of helplessness, inability to offer resistance ete. may lead a wornan to succumb to the Rest of an accused without offering resistance. Sometimes the victim is so terrified that she may not olfer any resistance and consecuently na infurs

or external sign of rape is found on the bady which normally is

expected from a struggle while resisting the attermpt. In "SBahwant Sing Of, Panjab" a young girh was rape d by four persons.

Tre 'that "the girl was not

expected to offer such resistance, as Ww ould: cause injuries to her

be sh e me

"the aC cused we re: convictec d.

x

joint of

$ t ken on 25.00.2011 shows' h Ler medic a

p end and head of radius fuse d with

icondyle { fused with lows ay shaft The medial cpicondyle is part of humerus bone of upper arm

cin humans. When a person falls on to an out rstre etched hark.

epicondyie f rh: humerus. which is very" common would

>

HCCUT has obser ved that dist alend of radius and distal

end of ulna ¥ were pe ally fused. The: radius also éalled radial bone

is one of the two large bones of 'the foreatin - the other is ulna. The radius forms a joint with ulna bone at the wrist. The radius primarily cemtributes te the wrist joint and ulna is a major contmibutor to elbew joint The radius is named so because the radius {bone} acts like the radhis ~ it rotates around the ulna and the far end of the radius. Uina acts as the center point of the circle as it dees not mave when the arm is rotated, Olecranon is a large thick curved bony eminence of ulna. [It is a long bene in the ferearm that projects behind the elbow. The X-ray reports show that distal end of racius, distal end of ulna and olecranon ~ all are part of hand ancl wrist bone; were partially fused. These injuries

clearly indicate struggle by the proseoutrix ~ may be she was

¢

is Crimgeat Apps} UPB Ny. ES al RNS wk Crintisal Appert fi Ka Eds of BES

Cetohesd kppeat GRE Ne Lt of Be SRE CrRalnw Apreat (QR) Ne Nat af S55

Pyeng cikoel ae fb eyes thrashed on the ground,

Be. Furthermore, there is no substance in the contention

that the prosecution case must fail because the doctor did not observe any external or internal injury on private paris of the

Osecutrix and reo trace of spermatozca, dead ar alive, was found on the vaginal swab,

od. The absence of sperms in the vagina does not mean that

x

sexual intercourse has not taken place. It riay be due to rem-

emission, aapermia, previous vasectomy, very old age or poor techrique by the exarnining doctor, Modi'" has noted that "The presence of spermatozoa in-the vagina after intercourse has been reported by Pollack (1 O43) from 30 minutes to 17 days, and by M

bet

x

oy oh

'risen (1OY2) up to ¢ 3 days tn vagina and-iS days in the cervix.

However, in the vagina of . a dead worTtan » they persist for a longer period." Parikh'? writes that normally ' sperms remain motile in the vagina for about six to eight hours and occasionally for about bwnive hours, while nor-rriciile sperms are detectable for. about twenty fmur hours, with occasional reports of detection v ary ing between forty eight to seventy two hours and rarely i ninety Six

hours. Partch' further writes that it is quite possible fo cornmit the

Marg

Wenece of rape without producing any injury: to the genit ais or

[SAVING AMY Ser minal ste em.

Sy

-- © a4. Yhe internal signs of rape such as redness or inflammation of vulva and vagina are difficult to distinguish as

there may be redness of the internal organs due to long standing

a

infiarmmation ar irritation by a chronic discharge. Similarly, inadequate personal hygiene of the victim may make it difficult to render definite opinion about recent sign of sexual intercourse, Modi" writes that there is a distinction between vulval penetration

and vaginal penetration; and vulval penetration, with or withmut

vielence, iS as much rape as vaginal penetration. The learned author further mentions that since the definition of vagina inchaides

Sey day : 4 : a + bey ee labia pmayora there is mo rived to carry out "the two finger test

iy {1° Edition i8 ine amd Toxicoingy, Sixth Edition 19 dence and Toxicology, 2¢ fithan

clothes of her daughter but gave it back. In "Gurcharar

tA Srisaiatnd Apert RI So, MHI WE WHR Crinuaal Append (HF Nas Sag of 2S Waki Cieoinrt Sppert (QHD Ra PET of S55 We Crkwinal Sper Lay Kas TER of MDG

order to find cut whether or not the woman was habituated to sex, He further says that lack of genital injury could be because of use

of tubricant, i could aise be because there was fingering or

penetration by object with use of lubricant.

25. Quite clearly, it is wrong fo sugrest that the medical evidence does not support the prosecution. Going further, there :

ane significant sbservation of the doctor which, im our opinion, was the reason why internal signs of rape could net be seen during medical examination. The doctor has observed that the last marstrual period af the prosecutrix was 25.08.2011 and at the

time she was © clinics

VY

y examines . she\ was menstruating. If any sign nternal parts WAS rot Oy the

aforesaid

mother has stated that he. | dwestivating officer examined

State of Haryana' the: Suggestion 'that, there being no marl <8 of

viole: nce on the private parts Ory elsewhe re on the perso n of the

prosequtt ix, there conld be ne of fen ce of rape an_her, was held

whally mis

the Hon'ble Sup sreme Court has

observed as under:

"OQ. The pofnf most seriou canvassed ia tus Court on befall' of He apeevian! was thal ihe salary statemesi of fre aerosecuins wihout corroboration in material particulars ig sat enough fo susiain fhe conwintion of Sie appellant The jeamed counsel aopearing for Gursharan Singh contended that ale Sigh arad Sanfha Raet may have been rightly convictan. Bul 8 far as fhe apynian! ia sonmemed the evalence against hin ms nedher rel faite nor sufficient for bringing Rome fo fin ihe offences of abductian and rape beyond reasonatlde doubt. The basic guestion oafich, therefore, arises ig as ip how far the featimony of ha prosecufix before us oan form the basis of fre appelian!'s canvicion, ff is welheetiied thal the proseauins ee be considered as an ACCOMPHICe aod, therefore, fer

lestinony cannol be aquated with ihal of an arcomplice in an offence. As a ruip of prudence, however cout nevmaily looks far some ocornievation cf Aer fasNmony so as fo saush is

auiscience Mal she is iaiing Ihe gush and inal ihe person aocused of page on der has nol boar fafsaly anpicated. The matter 9 Aol res infegrs and fhig Court has, an sore DECASIONS ihan ane, considered and anunciated the legal pasition."

} & Criminal Xppesad (RR No. GHG of 288 |

x BRR Crkruinad Sppert COs Ra, Sais FP RS Wt Criginal Apyedt GAB} No. TST gw ReTE. Wes

Mrdorinad Apgoat {WO} No, TS vf ahh

ae. A cernviction solely based on the evidenne of a proseoutrix without any corroboration is not illegal and it is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence [refer, "Sk. Sakir vw. State of Bihar", but wherever corroboration is necessary it should be fromm an independent source. The appellants have set up a defence that the prosecutrix and Chhotoo Kumar were in love. oes tg them this is a story of failed love and their friendship

vith Chhotoo Kumar was the reason that prompted the prosecutrix to institute a false case against them, but we do not find any

+} ee ALE SU

support to the det

there is overwhelm , hmetéeied against » nem . establishing their

complic : cand INVS Ivement in the gecurrence. |

ao

Section S3 Cr 2PC provides that it shall "be" lawful to

"examine a person accused of ¢ committing an offence i there are

ay itt afford evidence as to the commission of an offence

$

na ee

Be * WAS Hiserted in in Goite of Criminal Procedure by Act 2 Zo of BO05 vit deals with medical examination of a person who has been.

S

arrested. on th e charge of committing rape or an attempt to commit

rape. The ' 'orpore Hon af section 53-A_ by an amendment i in the:

Code of Crimit na dure. may, be construed that non-compliance

af section SG-4 sine count-against the pros secution, but lke other procedural laws fanure of the investigating officer to take the accused for medical examination is not fatal for the prosecution, The judgment in "Santosh Prasad v. The State of Bthar'™ on which the learned counsels for the appellants have Placed reliance does not help the appellants. In "Santosh Prasad*", the medical report amd PAL repart did net support the prosecution. There was delay in lodging the complaint, both parties were on inimical terme and, above al, the Hon'ble Supreme Court has observed that the

rnanrer in which the eccurrence is stated to have accurred was not

_ _ belevable.

if Crhulsad Appeal GEN} No. 1803 af FHS With URekaiarl Apgeat GPS} No. $a al GREE Wih

Crhvizal Appeal GA} Na. 27 yf AOS WD Vvikted Angers} DIB} No, TAs gh lah

23, There is no evidence of definite character to prove that

on the day of the occurrence the prosecutrixn was under sixteen

years of age. But then, it seems this issue was not seriously challenged by the defence and there is evidence of Dr. Rashmi Romila Sanga that the victim girl's age was 14-15 years. Under clause sinthly to section 37S of the Indian Penal Code consent of the victim girl under the age of sixteen years is immaterial and, therefore, a plea of consensual sex is not available to the appellants. In "R. vu. Carr a girl of 14 years consulted a physician |

for suppressecl menstruation. The © phys man had intercourse with

He was convicted

her suggesting thatdt's reatment.

re

EPERP enei

William

| Medicine | and 'Toxicology pe a ease, in 1923,

ams SPR singing teac 68 "young pupil that a hE ne with him ahalldaaprove the quality of her voice. |

80. We further find that there was no delay in lodging » the

ee f information Repor te aS the learned 3 counsels for the appellants vould. crmtend, The prosecutr ix hs as stated that she: could reach

xeme by the evening, and there cfore dict not go to » the police station,

ER arly. ney <cm ung she h ad gore to the, polic 3 "©

ation' and lo dged

the report. A victim of sexual assault, may be reluctant to approach.

the police as it involves the 'question ak her mor rality and chastity''. In| "Narayan" the Hon'ble Supreme Court has observed that a woman or her relative would have to struggle with various

situations before they decide te approach the police. In "State of

Punjab uv. Gurmit Singh" the Hon'ble Supreme Court has observed

that reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns reputation of the prosecutrix and honour of her family cannot be over-lnoked. The Hon'ble Supreme Court has further observed that

iis only after giving it a cool thought that a complaint of sexual -

a Py

offence is lodged. On similar lines "Deepak v. State of Haryana"

: State pf} (L986) PAE! 3Re 38 (261534 80

3 wes oy Mie, PRES CAS i 8 Chabad & apes Dy Wo, (ENC oF RRS

os Wiis s Criminal Append (3) Ra S88 of WIS : With Cekobext Appert Bi Na, MH al Bis RRR Cekwinal Sport (QS) Ne TS of BS

deals with a plea raised on delay in lodging a cornplaint with the police.

ai. in "Deepak"' the Hon'ble Supreme Court has observed as under.

"3. The cowts cannot overtook the fact inal in sexual Offences and ie pariiculen the offence of fae avid that foc an a VOU dierate git the delay in lodgimy de FIR ban Occur due io various raasons. One of the reasons is the rafuctance of the Drasecuuix OF her faavly members io go bo the polices stavon and io make [email protected] complain' about the incident, whe Sh cancems fhe FED dation of he prosaciuitx and the honour of fhe entire family.

if suo} Cages, affer giving very cool the ght and ouisidering alf

RDS and cons arising out of an unfortunate incitent, 9 cor maine of Sexual QMevioe is generally jodged alther iy fhe vietim or by ay member of her family. indeed, this has been the consistent sew of Lis. DURE AS fas been helcin State of Punjab y Gurl

wey oe Singh.

ae.

as contended that

Sumiar, the learned counsel hi

there As no mite srial On record, to suggest that Firoj. Ansari shared

common hers to sexually ravish "the. prosecutrix

: and mere presence is suflicie nt to attract the of ence under

section SPOR Ng) of the indian Penal Code.

33. Explanation-! to section a PO(@}ig) of the Indian Prnal

Code provides that the prosecution "has to adduce Avidence to andicate that more than one accused have acted ina conce rte If rape

ec See of their

by ene all shall be guilty irres

x

individy ual overt

ifis not necessary Re. pt osecution to

adduce evic lence of aX completed" act. -of-rape by each one of the

accused. In the pt resent casey the prosecutrix is consistent about

invelvement of all the appellants, each one of them has cornmitted

rape upen her.

34. in "Bhupinder Sharma wu State of H. P. =" the Hon'ble

Supreme Court has held as under:

"id ie cases of gang rape the proof of compl sted act of rape by euch accused on the wick if fot required. @ Stafulory istention i ~ ae

planation f jn relabor fo Seotion 2 2 re(2va} apoears to caylee wih a waw fa ¢ effectively deal wilh ihe growing Meviace of gang rape. in such circumstances, # is not mocessary that Ine prosecution shoud adduee clinch ng proof of a completed act of Pape by @ nach one Of the accused on the victim or on each one of the © there are more than one iy order io find ihe secused @ Fae and canvin' tham under Section B78 [PO *

WCHMS

38. Lastly 'it WAS contended that examination of the

appellants under section 312 CrP was sn eryphic that thetr

2? @ 2803) SPR SEL

S ¥ j 4 Crigixal Append (RB Ne UNS of 236 x 2 Wik . Cxainad Soneat (OE) Ss, SA HS.

Tespiasd Agpest GV Nog. TS af Bah

conviction for gang rape cannot sustain.

30. There are judgments that if an ineriminating circumstanc Was not pul to the accused when he was examined under section

3iQ CrPC then that circumstance should be excluded fram

consideration for recording conviction of the accused ~ that was the period of "Hate Singh'. and "Sharad Birdhichand Sarda", Then came anather view that failure to bring every inculpatory mircumatance to the notice of the accused for his explanation may mot invalidate the trial which gained foothold' and became an

integral part of the rule of practice before the appellate and revisional

Court, The ace La ed. 1S requir ect to ». Show. how he has been prejudiced

idence and that failure

the. prosecution evidendé! should be put to him to: : opportunity to hum to offer an, ex 'planation, but every fail ure to 'do 80

would. not iosa facto ve sult i in acquittal of the accused, in "Munist

aryana" the § don 'ble Supreme Cov

ry onthe part of f accused wl en. che is examined

under section" '313s BO to. furnish: gome ee} planation with respect to the incriminating chreumstances associated with him. The

appellants have failed to put forth a plausible explanation to the

incriminating materials put to them under section 313 CrPC and uo

suggestion was put to the prosecution witnesses regarding the plea _of their false implication in the case. The | important incriminating circumstances relied upon by the prosecution were put to the

appellants and as regards same of the materials which were

mot brought to their notice the accused have not shown

amy prejudice caused to them. The trial was conducted in their

presence, the charges were spelt out clearly and the witnesses

AER JUaS SC $68 auhtra €] BSS) as

20 Srkiant Appeal (RF Ne. fRLS oF BOUG Was.

Sytesinat Appent (QM. Ge. 88H PERT E Wah Cedrinad Angcent GHEY Na, FEF of 28S With

Siteohaat Sepest (MEENA, Tag af EHS

were fally cross-examined by their counsels. In the cirecumishances, a giea of vielation of the principles of fair trial is net available to them and we hold that ne prejudice was caused to the appellardts,

OY. in the aferesaid circumstances, we hold that the

prosenniion iras proved the charge under section Qf OH{2ig) of the

Indian Penal Code and the appellants were rightly convicted hy the trial Cosart for gars rape.

38, in the resuli, Criminal Appeal (DB) Ne. 1O1G of 2016, Criminal Appeal (OB) Ne. S46 of S016, Criminal Appeal (O88

Ne. 78 of QDIS ard Criminal Appeal (OB) No. 738 of ZOLO are

Munna who

s. The learned APPs state that Firoj Ansari ¢

Y

is the appellant in Criminal Appeal (DB} No. 1013 of 2016 is in jail,

wage

x?

we

yereas the other appellants, namely, Chandan Kumar, Javed Hussain @ Marua and Chhoteo Kamar are on bail,

a0. Accordingly, the bail-bonds furnished by Chandan Kumar, daved Hussain @ Manua arsl Chhotoa Kumar are

cancelled. The appellants shall serve the remaining sentence AS

Si. A copy of the pidement shall be sent to the Court

concerned for information and necessary acticn.

ae. Let the lower Court records be sent to the Court

| ; ; OA

Osh ree Cha ndrashekhar J } Sa =~

fRatny ker

Bhonera. J}

oe ~s,

~ . enn ee o | Ratniker Blhongra, J.)