Shajal Rai Alias Adrian vs State Of Sikkim
2021 Latest Caselaw 10 Sikkim

    IN THE HIGH COURT OF SIKKIM : GANGTOK
                            (Criminal Appellate Jurisdiction)

                               Crl. A. No. 07 of 2020

            Shri Shajal Rai alias Adrian,
            Aged about 22 years,
            Son of Late Bharat Singh Rai,
            Resident of Zoom Busty,
            West Sikkim.
            At present: Rongyek Jail.
                                                         ...         Appellant

                                    Versus

            State of Sikkim.
                                                         ...        Respondent

                                        BEFORE

   HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
         HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, J.

For appellant          :      Mr. N. Rai, Legal Aid Counsel.
                              Ms. Sudha Sewa, Advocate.

For respondent     :          Mr. Yadev Sharma, Addl. Public Prosecutor.


Date of hearing    :          03.03.2021

Date of judgment :            24.03.2021


                                   JUDGMENT

PER J.K. MAHESHWARI, CJ

Assailing the validity of the Judgment and Order dated 17.02.2020

and the Sentence awarded on 18.02.2020 in Sessions Trial (F.T.) Case

No. 04 of 2019 by the Judge, Fast Track Court, East & North Sikkim at

Gangtok and challenging the findings recorded against the accused/

appellant of his conviction and sentence of 10 years rigorous

imprisonment and the amount of fine of Rs.50,000/- (Rupees Fifty

Thousand), in default three months simple imprisonment for an offence Crl. A. No. 07 of 2020

under Section 376 (1) of the Indian Penal Code, 1860 (for short, IPC),

this appeal has been preferred by the accused.

2. The case of prosecution, in brief, is that the accused Shajal Rai @

Adrian, aged 22 years, is a resident of Zoom Busty, West Sikkim, at

present resident of 6th Mile, Tadong, East Sikkim. He is a driver by

profession and was in occupation to drive a tourist vehicle bearing

registration number SK01 Z-0702 belonging to Damber Bahadur Chettri

of Deorali, East Sikkim. On 17.04.2019 at around 20.30 hrs., the victim's

sister while checking the mobile phone of the victim, received a call from

the accused, who asked the victim's sister to come and meet him at

Putali Garden, East Sikkim. The victim snatched her phone from her

sister and switched on the speaker of phone and responded to accused

"why should I come". The accused asked the victim whether "she loved

him or not". The victim did not respond to that. The victim's sister asked

the accused to give Rs.500/- with a promise to return it the next day

after going to Gangtok. The accused agreed to give the money as

demanded but asked the victim or her sister to come alone, whosoever

may be. The story further revealed that the victim got acquainted with

the accused over a month back after being introduced by her sister, as

her friend's boyfriend. The victim also saw the accused visiting the

church situated next to her house. During one occasion the accused met

the victim's sister and asked her mobile phone. The victim's sister did not

have her own mobile phone, however, gave the number of her sister,

which was saved by accused. The accused used to call the victim's sister

on the victim's phone. On the date of the incident, after talking with the

accused, the victim proceeded towards the main road, i.e. Putali Garden,

32 Mile, East Sikkim and met the accused. The accused forcibly caught

the victim and placed her inside his vehicle bearing no. SK01 Z-0702 and

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locked it from inside by the central locking system. Despite strenuous

effort from the victim she could not open the door of the vehicle. The

accused had also snatched the phone of the victim and kept it. After

driving for a while the accused stopped the vehicle at Radong, New Road,

East Sikkim and started the music player on a maximum volume. The

accused pushed back the seat where the victim was sitting, forcibly

removed the clothes, put a knife on the neck of the victim and

threatened to cut her neck if she screamed or resisted. At that time

victim continued to curse and scold him but she was overpowered by the

accused who then committed rape on her. Thereafter, the accused

threatened the victim with dire consequences if she complained of the

incident. After a while, the accused dozed off giving an opportunity to the

victim to escape from the vehicle by somehow pressing the button of the

driver's seat and taking her mobile phone. When the victim had just

walked a few yards, the accused again came, took the victim inside the

vehicle and dropped her at Putali Garden, 32 Mile, East Sikkim. By the

time the victim reached her house it was already 21.30 to 22.00 hrs.

Thereafter, the victim called her boyfriend, PW-4 over his phone on

17.04.2019 around 23.00 hrs. and narrated the incident. On the next

day morning, i.e. 18.04.2019, the accused again called the victim and

assured to take care of her. He also told her that now they would be

treated as a couple. On reaching the house of the victim, the boyfriend

suggested to call the accused person to the same place wherefrom she

was kidnapped and was raped. On the next day when the accused

reached the same place the victim's boyfriend, one Rahul, the victim and

victim's sister caught the accused. The father lodged the FIR on

18.04.2019, the next day, in Ranipool Police Station at 22.30 hrs. The

SHO, Ranipool Police Station recorded the statement under Section 161

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of the Code of Criminal Procedure, 1973 (for short, CrPC) and also sent

her for medical examination. After medical examination, seizures of

some articles were made by the Doctor who handed over the same to the

police team for RFSL examination. The vehicle was also seized by the

police. On finding that the place of incident did not fall within the

jurisdiction of Ranipool Police Station, the case was transmitted to the

Police Station, Singtam on 19.04.2019. The Sub-Inspector prepared the

spot map and sent the seized clothes, slides and vehicle for RFSL

examination and received the report Exhibit-17. After completion of

investigation Challan was filed for alleged commission of offence under

Section 376/365 of the IPC.

3. Finding that the case was triable by the Court of Session it was

committed to the competent Court then assigned for trial to the Fast

Track Court, East & North Sikkim at Gangtok. The Sessions Court framed

charges under Section 376(1), 365 and 506 of the IPC. The accused has

abjured the guilt and submitted a defence of his false implication

demanding trial. The prosecution has examined 14 witnesses while the

accused has not examined any witness in support of his defence.

4. Learned Trial Court found that the charges under Sections 365 as

well 506 of the IPC have not been proved from the evidence brought by

prosecution. However, relying upon the testimony of the prosecutrix the

learned Trial Court held that charge under Section 376(1) of the IPC is

proved. Accordingly, the learned Trial Court convicted the accused/

appellant for the said charge and directed the accused to undergo the

sentence as described hereinabove.

5. Learned counsel appearing on behalf of the appellant would urge

with vehemence that it is a case of false implication of the appellant. The

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prosecutrix is major. As per the contents of the FIR nothing is alleged

regarding sexual assault. The story so prepared by the prosecution is

concocted. The FIR registered by Ranipool Police Station on 18.04.2019

had been sent to the concerned Magistrate on 20.04.2019 without any

explanation for the delay and non-compliance of Section 157 of the CrPC.

The allegations as alleged in the prosecution story does not inspire trust,

looking at the testimonies of the victim and witnesses or even by his

statement recorded before police. The testimony of the prosecutrix is not

of sterling character which can be relied upon to convict the appellant.

The allegation of commission of rape is not corroborated by medical

evidence or from the scientific evidence, to bring the charge at home.

6. The prosecution has left so many lacunas in the case. DNA test was

not conducted; the vehicle though seized and sent for RFSL examination

the report did not substantiate the allegation of rape. Although the

prosecution alleges that rape was committed after the accused centrally

locked the doors but no technical report of the vehicle was obtained. The

spot map does not specify the place of incident and no explanation has

been offered by I.O. The FIR is delayed by one day although the incident

was reported on the same day to the boyfriend, the friend and the

victim's sister was present all throughout with her. The father of the

prosecutrix was unaware of the incidence though he resided with the

victim in the same house. He was called only when the police instructed

to call the guardian. He did not know the contents of the FIR, but said he

came to know from his son-in-law. He admitted that he did not know the

accused who committed rape on his daughter. As per the case of the

prosecution, the accused has put a knife on the neck of the prosecutrix,

threatened her and overpowered her to commit rape. However, the

alleged knife was not recovered by the prosecution. Although the alleged

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story started from the telephonic conversation and exchange of

messages between the accused, the prosecutrix, the boyfriend and Rahul

Sharma, PW-5 the CDRs have not been collected and produced by the

police. In view of the forgoing, it is argued that either it may be a case of

consent or otherwise of false implication and for these reasons prompt

information had not been given to the police station. In view of the

forgoing facts, relying upon the judgments of Sudhansu Sekhar Sahoo

vs. State of Orissa reported in (2002) 10 SCC 743, Yerumalla

Latchaiah vs. State of Andhra Pradesh reported in (2006) 9 SCC

713, Ramesh Baburao Devaskar and others vs. State of

Maharashtra reported in (2007) 13 SCC 501, Dinesh Jaiswal vs.

State of M.P. reported in AIR 2010 SC 1540, State of Rajasthan vs.

Babu Meena reported in 2013 Crl LJ 1634 and Mohd. Ali alias

Guddu vs. State of Uttar Pradesh reported in (2015) 7 SCC 272, it

is submitted that the conviction under Section 376(1) of the IPC as

directed by the Trial Court is unsustainable and the consequential

sentence as directed may also be set aside.

7. On the other hand, learned Additional Public Prosecutor made

strenuous attempt to support the findings as recorded by the learned

Trial Court, inter alia, arguing that the conviction in a case of an offence

of commission of rape can be proved by the sole testimony of the

prosecutrix. Therefore, finding of guilt as recorded and the sentence as

directed by the Trial Court do not warrant interference. The arguments

advanced that allegation of rape is belied by medical evidence is of no

substance looking at the testimony of the prosecutrix, which is reliable

and inspire confidence. Thus the appeal may be dismissed and the

conviction and sentence of the appellant may be upheld. In support of

his contention reliance is placed on the judgments of B.C. Deva alias

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Dyava vs. State of Karnataka reported in (2007) 12 SCC 122 and

Sudhansu Sekhar Sahoo vs. State of Orissa reported in (2002) 10

SCC 743.

8. After having heard learned counsel appearing on behalf of both the

parties, we have perused the findings recorded by the Trial Court. It

reveals that the learned Trial Court relied upon the sole testimony of the

prosecutrix, accepting the allegation that the accused brought her to the

isolated place in his vehicle removed her clothes and committed rape.

The accused has been identified by the prosecutrix in the Court as he

was known to her through her sister's friend. The learned Trial Court

further, referring the judgments of the Supreme Court held that the sole

testimony of the prosecutrix could be relied upon. It was further held

that the testimony of PW-2 (father of the prosecutrix), PW-4 (husband of

the prosecutrix), PW-5 (friend of the prosecutrix), PW-6 (sister of the

prosecutrix), PW-8 (prosecutrix sister's friend) and various documents

were also reliable. Some parts of the testimonies and the cross-

examinations have been reproduced in the judgment. It was held that

the prosecutrix was staying with the father and younger sister and had

acquaintance with the accused. However, the victim believed the accused

when he asked for some help and reached Putali Garden to meet him. It

was held that the delay in lodging FIR may be due to mental trauma,

feeling of guilt, shame because of outraging her modesty in a situation in

which she was going to be married soon with PW-4. It was further held

that the defence was unable to give any cogent reason why the victim

had named the accused as perpetrator of commission of the offence. The

learned Trial Court had acquitted the accused from the charge under

Sections 365/506 of the IPC, but convicted him for the charge under

Section 376(1) of the IPC.

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9. In the matter of proving the guilt of an accused in Court it is not

out of place to state that the basic principle of criminal law is that the

prosecution has to prove his own case and they cannot take advantage

of the lacunas of the defence. Except in a case of admission of guilt in

Court by an accused his defence may be seen after the discharge of

burden by prosecution when onus shifts. The Court has to record a

finding that the charge so framed has been proved by prosecution

beyond reasonable doubt. Thereafter onus shifts upon the accused and

the Court could see the defence put up by the accused while convicting

or acquitting the accused. At the appellate stage, the High Court may

examine the justiciability of the findings recorded by the Trial Court

taking note of the above principles of law and can reverse those findings

if it was perverse or illegal on appraisal or reappraisal of evidence. The

defence so put by the accused may be looked into only when the

prosecution proves the case beyond reasonable doubt. On the said basic

parameters, the legality and propriety of the impugned judgment is

required to be examined.

10. Prior to appreciating the facts and evidence brought on record, the

judgments relied by learned counsel representing the parties may be

discussed. As per appellant counsel in the case of Dinesh Jaiswal vs.

State of Madhya Pradesh (supra), the Apex Court observed that the

sole statement of the prosecutrix was not reliable. Her testimony had no

corroboration and considering the improbabilities in her story, conviction

was set aside by allowing the appeal. In the case of State of Rajasthan

vs. Babu Meena (supra), the Apex Court has held that if the statement

of the prosecutrix is not at all reliable or wholly unreliable and no other

evidence has been led to support the allegation of rape, it would not be

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safe to convict the appellant on her sole testimony. The Apex Court

observed that the testimony of the prosecutrix may be of three

categories, first wholly reliable, second wholly unreliable and third

neither wholly reliable nor wholly unreliable. While explaining the same it

was observed that if the testimony is wholly reliable, the sole testimony

can be relied upon otherwise its corroboration from other prosecution

witnesses must be sought. In the case of Mohd. Ali alias Guddu vs.

State of Uttar Pradesh (supra), it was held that there can be no iota of

doubt that a conviction can be based on sole testimony of prosecutrix

even without corroboration if it is of unimpeachable character and

beyond reproach. It was observed that the testimony of prosecutrix is

placed on a higher pedestal than an injured witness. But if the testimony

is not reliable and doubted then there is requirement for search of

corroboration.

11. Learned Additional Public Prosecutor in opposition has cited the

judgment of B.C. Deva alias Dyava vs. State of Karnataka (supra), in

which the Apex Court has upheld the conviction based upon the sole

testimony of the prosecutrix and her subsequent conduct and held that

the said testimony was enough to base the conviction of the accused for

an offence under Section 376 of the IPC. In the case of Sudhansu

Sekhar Sahoo vs. State of Orissa (supra), the Apex Court observed

that the sole testimony of the prosecutrix if safe, reliable and worthy of

acceptance is sufficient to convict the accused.

12. In view of the aforesaid judgments relied upon by the learned

counsel for the appellant as well as respondent it is crystallized that sole

testimony of the prosecutrix if wholly reliable, safe and worthy to accept

the conviction can be relied upon for an offence under Section 376 of the

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IPC, but, if the testimony throws doubt on prosecution case due to the

unnatural conduct of family and then evidence being impeachable, it

cannot be relied upon without corroboration by other evidence, more so

when it creates doubt about the improbability of the story of the

prosecution.

13. The Apex Court in the case of Yerumulla Latchaiah vs. State of

Andhra Pradesh (supra) while dealing with a case of a prosecutrix aged

8 years had not found any sign of rape on the body of the victim. In the

said case medical evidence was found to be relevant and it was held that

if statement of the prosecutrix is belied by the medical evidence

conviction is not safe. In the case of Ramesh Baburao Devaskar and

others vs. State of Maharashtra (supra), the importance of the delay

in lodging FIR and the delay in sending the copy to the Magistrate was

examined and it was held that the requirement of Section 157 of the

CrPC has not been complied. In view of the said two judgments it is clear

that the requirement of non-compliance of Section 157 CrPC with a

delayed FIR is material and may affect the conviction of the accused in a

given case. Simultaneously if the allegation of rape based upon the

testimony of the prosecutrix is found not reliable without support from

medical evidence then it can be a ground to set aside the conviction. In

the light of the law laid down by Hon'ble the Apex Court and relied by the

parties the facts of the present case is required to be seen.

14. In the present case, the incident took place in between 20.30 to

21.30 hrs on 17.04.2019. The FIR has been lodged by PW-2, father of

the prosecutrix at Ranipool Police Station on 18.04.2019 at 22.30 hrs,

inter alia, stating that when she was at home, the accused called his

daughter on mobile phone to Putali Garden, 32 Mile and forcibly

10 | P a g e Crl. A. No. 07 of 2020

abducted her in an Innova vehicle bearing no. SK 01 Z-0702. The

accused after centrally locking the vehicle drove towards Radong, new

road and started playing loud music. The accused touched her body and

committed bad act which came to his knowledge and so he was

submitting the report to punish the accused and give protection to his

daughter as per law. As per the statement of PW-2 in Court it is clear

that his son-in-law came to his house and asked him to go Ranipool

Police Station. When he asked him, he informed that the prosecutrix

(daughter) had been raped by the accused at Radong road. Although he

has admitted his signature on the FIR, Exhibit P-1, in cross-examination

he stated that the prosecutrix (daughter) did not narrate anything about

the incident to him. The FIR submitted by him i.e. Exhibit P-1 was not

scribed by him. He do not know the contents of the FIR. It is further

admitted by him that his son-in-law, PW-4, did not tell him the name of

the accused person while narrating about the incident. He admitted that

his son-in-law, PW-4, used to stay at his house as he was engaged with

his daughter during the relevant time and the prosecutrix is married to

PW-4. Thus, it is clear that the FIR was not scribed by the father and he

does not know the name of the accused and the contents of the FIR. The

prosecutrix although staying with him did not narrate anything about the

incident to him. PW-4 in his Court deposition said that the police

personnel instructed him to call the guardian, therefore, he and Rahul,

PW-5, informed the father, PW-2, for lodging the FIR. In the deposition

of PW-5-Rahul Sharma, it is only stated that the guardian of the victim

lodged the FIR in Ranipool Police Station, which was forwarded to

Singtam Police Station. Therefore, the lodger of the FIR was not aware

who was the accused, what incident took place and also he has not

proved the narration of the FIR in the manner as stated therein.

11 | P a g e Crl. A. No. 07 of 2020

15. With regard to the story of the commission of rape, it is said by the

prosecution that on 17.04.2019 around 20.30 hrs. the sister of the

victim, PW-6 while checking the mobile of victim, received a call from the

accused who asked the victim's sister to come and meet him at Putali

Garden. It is their case that the victim snatched her phone and

responded to the accused by asking "why should I come". It is also their

case that she had switched on the speaker of the mobile on which

accused asked whether "she loved him or not", but the prosecutrix did

not respond. At the same time the sister of the prosecutrix, PW-6, teased

the accused and asked for R.500/- with a promise to return the same. To

that the accused agreed but asked either of them to come personally and

receive the amount. The acquaintance of the prosecutrix and accused

were a month prior to the incident. At that time the victim's sister had

introduced the accused to the prosecutrix as her friend's boyfriend. At

that time, the mobile phone number of the prosecutrix was given to the

accused because the victim's sister did not keep a mobile phone. In such

circumstances, the accused called on the mobile of the prosecutrix on the

date of incident and the victim and victim's sister both talked with him.

16. In that regard the statement of PW-6, sister of the prosecutrix,

under Section 164 of the CrPC is also relevant to know how prosecution

set out the case. It indicates the accused had met her earlier. She was

shown the accused by her sister as the boyfriend of her friend. She

further states that she was in talking term with the accused, as the

victim's sister did not have a mobile phone. Therefore, the mobile

number of the victim had been given to the accused. PW-8, the friend of

victim's sister deposed regarding the meeting. She said that the accused

used to be her boyfriend. She did not say anything about giving mobile

12 | P a g e Crl. A. No. 07 of 2020

number of the victim to the accused for her use. The prosecutrix in this

regard has stated that the accused met in the Nimtar Church. As per the

statement recorded in the Court PW-6 said that PW-8 saved the mobile

number of the accused in the mobile of the victim and asked to contact

the victim in case of any emergency, though it is nobody's case (either of

PW-1, PW-6 and PW-8) before police. Therefore, the story of asking of

the mobile number through victim's sister's friend as the accused being

boyfriend of the victim's sister's friend is differently set out. As per their

statements under Section 161 CrPC and in Court it can be gathered that

the sister of victim was in touch with accused and later the victim had

also come in contact and both were in talking terms with the accused. It

appears that the story that the accused was boyfriend of victim's sister's

friend is a cooked up story. Therefore, how the mobile number of the

accused had come to the victim as stated by the prosecution has not

been proved beyond reasonable doubt.

17. The story of checking the mobile phone of victim by victim's sister

and her conversation with accused or with victim as set out by the police

has also not been proved in the Court. The sister of the victim, PW-6,

states that she received a call from the accused asking her to meet him

at Butterfly Garden for some work which was declined by her. As the

accused was calling her again and again the victim picked up the mobile,

received the call and went out of the house while talking to accused. The

prosecutrix, PW-1 stated that she received a call from the accused to

come to Butterfly Garden as her needed help. Accordingly she reached

the place and saw the accused in an intoxicating state. As such the story

of prosecution about the call by the accused on mobile phone to the

victim; the mobile being checked by the victim's sister, PW-6, and the

accused asking her whether "she loved him or not" and of "asking of

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Rs.500/- by victim's sister"; teasing him and the victim going to get the

said amount are not proved with the testimonies of PW-1 (victim) and

PW-6 (victim's sister). Therefore, the prosecution case has not been

proved convincingly by the statement of the prosecution witnesses.

18. Now the statement of the victim that after reaching Putali Garden,

the accused told her to sit in the vehicle and she sat on the front seat on

her own, thereafter all the four doors were centrally locked by the

accused who then overpowered her and raped her, may be examined.

The prosecutrix, PW-1 in her testimony tried to make out a case that the

accused who was in an intoxicating state at that time asking her to sit on

the front seat of the vehicle but she refused and asked him the reason

for calling. On the insistence of accused she, however herself sat on the

front seat after boarding the vehicle. The accused locked the door and

started playing loud music, drove the vehicle towards Ranipool by the

newly constructed road and on reaching there, parked the vehicle at an

isolated place and asked the victim for a kiss. On refusal by the victim

and on her threatening to inform his girlfriend (PW-8), the accused

pushed back the seat, took the mobile phone of the victim, and

committed rape after removing her clothes. Thereafter, the accused slept

on the driver's seat and the prosecutrix traumatized, managed to wear

her clothes, came out from the vehicle after opening the door and taking

her mobile tried to flee. After some time again the accused reached there

told her that he would drop her at the same place from where she was

picked. The accused threatened her that in case she narrated the story to

anyone it would be fatal to her. Thus the statement recorded in the Court

in fact, is an improvement of prosecution story. She had not stated about

the accused putting a knife on her neck while committing rape.

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19. The statement of PW-6, sister of the prosecutrix who was with her

states different story in this regard. As stated by her, she was called by

the accused but the victim had received the call of the accused and while

talking to him she visited Putali Garden. PW-6 tried to call from her

father's mobile repeatedly but she did not pick up the calls. Finally at

about 09.15 pm the accused answer the call from the victim's mobile

phone. What was the accused person's reply has not been stated in her

testimony. Thereafter PW-6 herself reached the Butterfly Garden to see

and meet the victim. She saw one white colour Innova car coming with

the victim sitting inside. After opening the door she came out but was

not in normal self and appeared tensed. PW-6 has not asked anything

from her sister. The aforesaid narration is neither the case of prosecution

nor as per the statement of the prosecutrix/victim. The prosecution story

as reflected in the chargesheet about what happened to the victim, the

circumstances before and after the incident is substantially different to

what the prosecution witnesses stated in the Court. The sister of the

prosecutrix, PW-6, who was with prosecutrix since the time the accused

called her has narrated a different story as described above. Therefore,

looking at the prosecution case, the sole testimony of the prosecutrix is

not of sterling character even in the manner the allegation of rape is

alleged. In addition to the aforesaid, the place of incident in the Court

statement was said to be towards Ranipool road not Radong new road.

As per Sketch Map Exhibit P-25, the place of incident has not been

specified. The perusal of the sketch map makes it clear that from Putali

Garden one side road goes towards Ranipool and the other towards

Singtam but the place of incident i.e. new Radong road is not specified in

it. Thus place of incident is also not clear in the sketch map.

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20. As per the above discussion the sole testimony of the prosecutrix is

not safe to rely upon and its corroboration from the medical evidence

may have relevance to prove the allegation of rape. As per the materials

available, the medical examination of the prosecutrix, Exhibit P-15, was

conducted by Dr. Madhu Shweta Sharma, PW-13. As per her testimony it

is clear that the victim was examined within 48 hours from the time of

incident. At the time of examination no injury was seen by her on the

private parts of victim. She further opined that in case rape is committed

within 48 hours, some injuries should be found on the victim's private

parts. During her internal examination, old tear of hymen was found

which may be of about a month old. There was no sign of struggle on the

body of the victim. She deposed that she cannot say whether the patient

may have been involved in any sexual intercourse within 48 hours prior

to the time of examination. PW-13 made the seizure of two vaginal

swabs, one oral swab, one salivary sample, two nail clippings, pubic hair

sample, hair sample and three vials of blood sample. All were sent for

RFSL examination. However, no incriminating material was found during

the examination. Therefore, allegation of commission of rape has not

found support from medical evidence.

21. Mr. Prem Kumar Sharma, PW-11, who was the junior scientific

officer, came from RFSL Saramsa. He has proved the report, Exhibit-16,

and as per the said report there is no corroboration regarding

commission of rape. It is also relevant that the vehicle was also sent for

examination because the prosecution set out a case that the sperm were

ejaculated outside after rape, however, it may be in the vehicle, but even

in the report of vehicle nothing incriminating was found. As per his

statement the vaginal swab slide of the victim from the posterior region

is marked in the lab as BIO 471 (B). The vaginal swab slide from the

16 | P a g e Crl. A. No. 07 of 2020

anterior region is marked in the lab as BIO 471 (C). Buccal swab slide of

the victim is marked in the lab as BIO 471 (D). Urine sample of the

victim is marked in the lab as BIO 471 (E). Oral swab of the victim is

marked in the lab as BIO 471 (F). In the test, neither blood nor semen

was detected in those exhibits in the report. Nail clippings of right hand

of the victim was marked in the lab as BIO 471 (G), nail clippings of left

hand of the victim was marked in the lab as BIO 471 (H) and pubic hair

of the victim marked in the lab as BIO 471 (I) on which no foreign

material was detected as per the report. On the undergarments of the

victim marked as BIO 471 (Q) no blood or semen were detected. The

Innova vehicle which was marked as BIO 471 (R), neither blood nor

semen or any other foreign material i.e. hair was detected on it. As per

the report, BIO 471 (A) and (K), which is a blood sample of accused,

blood group was found matching. Human blood was detected in Exhibit

BIO 471 (P), which is the underwear of the accused of the same group

which alone cannot be incriminating evidence in the case. Considering

the aforesaid, it is apparent that neither the blood group of the accused

nor the semen was found in the serological test nor as stated by the

prosecution no ejaculated semen was found in the vehicle.

22. In addition to the aforesaid, there are several lacunas in the

prosecution case. As per prosecution, accused called the victim, PW-1, as

well as her sister, PW-6, by making a call on her mobile. Call details of

the mobiles have not been collected by calling for the CDRs of the mobile

of the accused and victim. After commission of rape, victim has sent the

message to her friend i.e. Rahul, PW-5. CDR and message details of

Rahul have not been produced. PW-4, husband of the victim is said to

have called the victim on the same date at night as per prosecution case,

however, the CDR thereto has also not been produced. The conduct of

17 | P a g e Crl. A. No. 07 of 2020

prosecutrix is unnatural. On coming back after the incident, she met with

sister when the father was also at home. But she has not said anything

about the incident to both of them. It is alleged that at the time of

commission of the rape, threat was given putting knife on the neck of the

prosecutrix inside the vehicle but the knife has not been seized or

produced by the prosecution. The prosecution story is that when

prosecutrix entered the vehicle, by a central locking system all the doors

were locked. No technical report of the vehicle was produced to prove

that the vehicle had a central locking system. DNA test has also not been

conducted in the case more particularly when RFSL test did not disclose

the commission of offence as per prosecution story. Furthermore, even

the FIR was not sent within 24 hours in compliance with the provisions of

Section 157 of the CrPC. On the person of the accused, injuries were

found, as revealed from his medical report, Exhibit-15, to which no

explanation is on record. All these facts also create doubts on

prosecution case and the manner in which investigation has been

conducted. All these lacunas are collectively fatal to the case of the

prosecution in proving the guilt of the accused bringing the charge home

under Section 376(1) of the IPC. Learned Trial Court has not considered

all these aspects although acquitting the accused under Sections 365 and

506 of the IPC.

23. In view of the discussion made hereinabove, this Court is of the

opinion that the testimony of the prosecutrix is not of sterling character,

therefore it is not safe to rely upon the testimony of the victim to prove

the charge against the accused under Section 376(1) of the IPC. In

addition, the case of the prosecution as set out has not been proved by

the statements of the prosecution witnesses in Court. The prosecution

witnesses disclosed a different story than of prosecution case in the

18 | P a g e Crl. A. No. 07 of 2020

Court. As discussed, sole testimony of the prosecutrix is not of a sterling

character and is belied by medical and scientific evidence. As per the

material brought on record either it appears to be a case of consent or of

false implication. In view of the said discussion it is observed that

learned Trial Court has failed to appreciate the evidence in right

perspective and held the charge under Section 376(1) of the IPC proved

without any cogent evidence, contrary to the basic principles. Therefore,

it is held that the findings and judgment of the Trial Court to prove the

allegation of commission of rape is perverse and illegal and hence liable

to be set aside. Accordingly, the judgment of the Trial Court is hereby set

aside.

24. In view of the forgoing, the finding and the judgment holding the

accused guilty to the charge under Section 376(1) of the IPC and the

sentence as awarded by the learned Trial Court are hereby set aside.

Accordingly, this appeal succeeds and is hereby allowed. The accused is

acquitted from the charge under Section 376(1) of the IPC giving benefit

of doubt. Consequent to it if the accused is in custody, he be forthwith

released from the jail, if not required in any other case.

25. The Registry of this Court shall send the copy of the order and

record to the Trial Court forthwith.

              (Justice B.R. Pradhan)       (Justice J.K. Maheshwari)
                       Judge                      Chief Justice

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