PRASAD @ SANTOSH KUMAR versus THE STATE OF BIHAR on 14 February 2020

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 7.2.2018 passed by the High Court of Judicature atPatna in Criminal Appeal No. 209 of 2015, by which the High Court hasdismissed the said appeal preferred by the original accused and hasconfirmed the judgment and order of conviction passed by the learnedSessions Court convicting the accused for the offences punishable underSections 376(1) and 450 of the IPC, the original accused has preferredthe present appeal.

2. That the appellant herein – original accused was tried by thelearned Sessions Court for the offences punishable under Sections 376(1)and 450 of the IPC. A written complaint was filed by the prosecutrix –PW5 on 16.09.2011 before the local police station against the accusedalleging, inter alia, that in the preceding night at about 11:00 p.m. sheawaken after hearing some sound and whereupon in the light of themobile phone she found the accused – brother of her husband whereuponshe made query. Instead of giving any reply, he committed the rape uponher. According to the prosecution and as per the prosecutrix, thereafterthe accused ran away and after getting an opportunity she raised alarmand the neighbours came there including one Suman Devi, her cousinGotini as well as Shanti Devi, her cousin mother-in-law. She disclosedthe event/incident to them. According to the prosecutrix, she informedher mother-in-law and father-in-law who were at Gaya. At the time ofincident, her husband was away from the village. Thereafter on theirarrival she came to the police station along with them and submittedwritten report. FIR was registered against the accused being P.S. CaseNo. 325/2011. Investigation was carried out by the officer in-charge ofMakhdumpur Police Station. He recorded the statement of the concernedwitnesses. The clothes/apparels of the prosecutrix were seized and weresent to FSL. He also collected the medical report from Dr.Renu Singh,PW7, who examined the victim. Thereafter on conclusion of theinvestigation, the Investigating Officer filed the chargesheet against theaccused for the offences punishable under Sections 376(1) and 450 ofthe IPC. As the case was triable by the Court of Sessions, the learnedMagistrate committed the case to the Sessions Court which wastransferred to the Court of learned Additional Sessions Judge, Ist,Jehanabad, which was numbered as Sessions Trial No. 456 of 2011/90/

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A2012. The accused pleaded not guilty and therefore he came to be triedby the learned Sessions Court for the aforesaid offences.

2.1 To prove the charge, the prosecution examined in all eightwitnesses including the prosecutrix (PW5) and Dr. Renu Singh – MedicalOfficer (PW7). Out of the eight witnesses, PW2, PW3 and PW4 did notBsupport the case of the prosecution and therefore were declared hostile.The prosecution also brought on record the FIR, Injury Report and FSLReport. After closure of the evidence of the prosecution, further statementof the accused under Section 313, Cr.P.C. was recorded. The case ofthe accused was of total denial. Thereafter, on appreciation of evidenceon record, the learned trial Court held the accused guilty for the offencesCunder Sections 376(1) and 450 of the IPC. The learned trial Courtsentenced the accused to undergo 10 years R.I. for the offence underSection 376 of the IPC and 7 years R.I. for the offence under Section450 of the IPC.

2.2 Feeling aggrieved and dissatisfied with the judgment and orderDof conviction and sentence passed by the learned trial Court, the accusedpreferred an appeal before the High Court. By the impugned judgmentand order, the High Court has dismissed the said appeal. Hence, theaccused has preferred the present appeal.

3. Shri Santosh Kumar, learned Advocate appearing on behalf ofEthe original accused has vehemently submitted that in the facts andcircumstances of the case both the courts below have materially erredin convicting the accused for the offences under Sections 376 and 450of the IPC.

3.1 It is further submitted by Shri Santosh Kumar, learned AdvocateFappearing on behalf of the original accused that the courts below havenot properly appreciated the fact that as such the medical report doesnot support the case of the prosecutrix/prosecution. It is submitted thatthe evidence of the prosecutrix is not supported by the medical evidencesince no stains of semen or blood were found on the clothes of theGprosecutrix. It is submitted therefore that it creates serious doubt aboutthe credibility of the prosecutrix.

3.2 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that there was a delay inlodging/reporting the case to the police.

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3.3 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that both the courts belowhave not properly appreciated the fact that there was a family enmitybetween the accused and the family of the prosecutrix with respect tothe land dispute. It is submitted that no independent witnesses have beenexamined by the prosecution. It is submitted that as there was a disputebetween the accused and the family members of the prosecutrix, non-examination of the material independent witnesses, the case of theprosecution suffers from serious doubts.

3.4 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that as per the doctor andthe medical report/injury report, no injury was found on the person of thevictim and private parts especially. It is submitted that therefore in theabsence of any injury the story put forth by the prosecutrix/prosecutionis not believable.

3.5 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that except the deposition/evidence of the prosecutrix which has not been corroborated by themedical evidence, there is no other independent and cogent evidence toconnect the accused with the guilt.

3.6 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that even the doctor hascategorically said that there is no physical or pathological evidence ofrape.

3.7 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that even in the FSL report/serological report of the blood and semen allegedly found on the petticoatof the prosecutrix was inconclusive. It is submitted that therefore theserological report of blood and semen, allegedly found on the petticoatof the prosecutrix, does not help the prosecution.

3.8 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that even there are materialcontradictions in the deposition of the prosecutrix. It is submitted thatthe prosecutrix has deposed during trial that she had given an oralstatement before the police whereas the FIR has been lodgedon thewritten report and the scribe has neither been examined nor producedbefore the Investigating Officer.

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A3.9 It is further submitted by Shri Santosh Kumar, learned Advocateappearing on behalf of the original accused that even there is a materialcontradiction with respect to lodging of the FIR/the written report. It issubmitted that as per the prosecutrix she had gone to the police stationat 10 O’clock and the police had enquired at 10 O’clock. However, theFIR is registered at 4:00 p.m. It is submitted that therefore it appearsBthat earliest version has been suppressed and therefore the FIR is hit bySection 162 Cr.P.C.

3.10 It is further submitted by Shri Santosh Kumar, learnedAdvocate appearing on behalf of the original accused that even the storyput forth by the prosecutrix in her evidence that she had seen the accusedCjumping the fallen boundary wall and when she shouted the accusedpushed towel in her mouth and she identified him in mobile light is notbelievable at all. It is submitted that even according to the prosecutrixshe was sleeping in her room having door closed. Thus, she will not beable to see any person doing any act outside room. It is submitted thatDneither the number of the mobile nor even the mobile is produced beforethe investigating officer.

3.11 It is further submitted that therefore when the conviction isbased on the sole testimony of the prosecutrix and the medical evidencedoes not support the case of the prosecution/prosecutrix and the depositionEof the prosecutrix is full of material contradictions and that there wasalready a dispute between the accused and the family members of theprosecutrix and no independent witnesses have been examined, it is notsafe to convict the accused solely on such testimony of the prosecutrix.In support of the above submission, learned counsel has heavily reliedupon the decisions of this Court in the cases of Raju and others v. StateFof Madhya Pradesh (2008) 15 SCC 133 as well as Rai Sandeepalias Deepu v. State (NCT of Delhi) (2012) 8 SCC 21.

3.12 Making the above submissions and further relying upon thedecisions of this Court in the cases of Mukesh v. State of Chhattisgarh(2014) 10 SCC 327 as well as Ravindra v. State of Madhya PradeshG(2015) 4 SCC 491, it is prayed to allow the present appeal and quashand set aside the impugned judgment and order passed by the HighCourt as well as the learned Sessions Court and acquit the accused forthe offences for which he was tried and convicted by the learned SessionsCourt, confirmed by the High Court.

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4. The present appeal is vehemently opposed by Shri KeshavMohan, learned Advocate appearing on behalf of the State of Bihar.

4.1 It is vehemently submitted by the learned Advocate appearingon behalf of the respondent – State that in the present case the prosecutrixhas fully supported the case of the prosecution. It is submitted that asobserved by this Court in the cases of Ranjit Hazarika v. State ofAssam (1998) 8 SCC 635 as well as State of Punjab v. GurmeetSingh & others (1996) 2 SCC 384, the courts must, while evaluatingevidence, remain alive to the fact that in a case of rape, no self-respectingwoman will come forward in a court just to make a humiliating statementagainst her honour such as is involved in the commission of rape on her.

4.2 Relying upon the decision of this Court in the case of Raju &others (supra), it is submitted that as observed and held by this Courtthat ordinarily the evidence of a prosecutrix should not be suspected andshould be believed and if the evidence is reliable, no corroboration isnecessary.

4.3 It is further submitted by the learned Advocate appearing onbehalf of the respondent – State that even otherwise in the present casethe petticoat of the prosecutrix was sent to FSL and the petticoat washaving the blood as well as semen stains. It is submitted that thereforethe FSL report discloses that the victim/prosecutrix was subjected torape and it also discloses the involvement of the accused.

4.4 Relying upon the decision of this Court in the case of RajendraPralhadraoWasnik v. State of Maharashtra, it is vehemently submittedby the learned counsel appearing on behalf of the State that as held bythis Court that merely because the FSL report is inconclusive, it is notnecessary that the irresistible conclusion is only one that the accused isnot guilty.

4.5 It is further submitted by the learned Advocate appearing onbehalf of the respondent – State that mere absence of spermatozoacannot discredit the testimony of the prosecutrix, as she was examinedby the lady doctor almost after 36 hours from the date of occurrence.

4.6 It is further submitted by the learned Advocate appearing onbehalf of the respondent – State that even the lady doctor, PW7 has alsoopined that possibility of rape cannot be ruled out. It is submitted that asheld by this Court in the case of B.C. Deva v. State of Karnataka A

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A(2007) 12 SCC 122 that in spite of the fact that no injuries were foundon the person of the prosecutrix, yet the prosecutrix can be relied upon.

4.7 It is further submitted by the learned Advocate appearing onbehalf of the respondent – State that prosecutrix is an adult lady of fullunderstanding. It is submitted that therefore merely because during theBmedical examination doctor did not find any external or internal injury onthe body of the prosecutrix, her statement cannot be discarded. It issubmitted therefore that in the facts and circumstances of the case, noerror has been committed by both the courts below in convicting theaccused for the offences under Sections 376 and 450 of the IPC.

C4.8 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to dismiss the present appeal.5. We have heard the learned counsel for the respective partiesat length.

5.1 We have considered in detail the impugned judgments andDorders passed by the High Court as well as that of the learned trial Courtconvicting the accused. We have also considered in detail the evidenceon record, both oral as well as documentary.

5.2 From the impugned judgments and orders passed by both thecourts below, it appears that the appellant has been convicted solelyErelying upon the deposition of the prosecutrix (PW5). Neither anyindependent witness nor even the medical evidence supports the case ofthe prosecution. From the deposition of PW1, it has come on record thatthere was a land dispute going on between both the parties. Even in thecross-examination even the PW5 – prosecutrix had admitted that sheFhad an enmity with Santosh (accused). The prosecutrix was called formedical examination by Dr.Renu Singh – Medical Officer and PW7 –Dr.Renu Singh submitted injury report. In the injury report, no sperm aswell as RBC and WBC were found. Dr. Renu Singh, PW7 – MedicalOfficer in her deposition has specifically opined and stated that she didnot find any violence marks on the body of the victim.She has alsoGcategorically stated that there is no physical or pathological evidence ofrape. It is true that thereafter she has stated that possibility of rapecannot be ruled out (so stated in the examination-in-chief). However, inthe cross-examination, she has stated that there was no physical orpathological evidence of rape.

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5.3 As per the FSL report, the blood group on the petticoat andthe semen on the petticoat are stated to be inconclusive. Therefore, theonly evidence available on record would be the deposition of theprosecutrix. It cannot be disputed that there can be a conviction solelybased on the evidence of the prosecutrix. However, the evidence mustbe reliable and trustworthy. Therefore, now let us examine the evidenceof the prosecutrix and consider whether in the facts and circumstancesof the case is it safe to convict the accused solely based on the depositionof the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on recordthat there was an enmity between both the parties.

5.4 Before considering the evidence of the prosecutrix, thedecisions of this Court in the cases of Raju (supra) and Rai Sandeep@ Deepu, relied upon by he learned Advocate appearing on behalf ofthe appellant-accused, are required to be referred to and considered.

5.4.1 In the case of Raju (supra), it is observed and held by thisCourt in paragraphs 11 and 12 as under:

“11. It cannot be lost sight of that rape causes the greatest distressand humiliation to the victim but at the same time a false allegationof rape can cause equal distress, humiliation and damage to theaccused as well. The accused must also be protected against thepossibility of false implication, particularly where a large numberof accused are involved. It must, further, be borne in mind that thebroad principle is that an injured witness was present at the timewhen the incident happened and that ordinarily such a witnesswould not tell a lie as to the actual assailants, but there is nopresumption or any basis for assuming that the statement of sucha witness is always correct or without any embellishment orexaggeration.

12. Reference has been made in Gurmit Singh case [(1996) 2SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 toSections 375 and 376 of the Penal Code making the penal provisionsrelating to rape more stringent, and also to Section 114-A of theEvidence Act with respect to a presumption to be raised withregard to allegations of consensual sex in a case of alleged rape.It is however significant that Sections 113-A and 113-B too wereinserted in the Evidence Act by the same amendment by which A

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certain presumptions in cases of abetment of suicide and dowrydeath have been raised against the accused. These two sections,thus, raise a clear presumption in favour of the prosecution but nosimilar presumption with respect to rape is visualised as thepresumption under Section 114-A is extremely restricted in itsapplicability. This clearly shows that insofar as allegations of rapeare concerned, the evidence of a prosecutrix must be examinedas that of an injured witness whose presence at the spot is probablebut it can never be presumed that her statement should, withoutexception, be taken as the gospel truth. Additionally, her statementcan, at best, be adjudged on the principle that ordinarily no injuredwitness would tell a lie or implicate a person falsely. We believethat it is under these principles that this case, and others such asthis one, need to be examined.”

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5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Courthad an occasion to consider who can be said to be a “sterling witness”.DIn paragraph 22, it is observed and held as under:

“22 In our considered opinion, the “sterling witness” should be ofa very high quality and calibre whose version should, therefore,be unassailable. The court considering the version of such witnessshould be in a position to accept it for its face value without anyhesitation. To test the quality of such a witness, the status of thewitness would be immaterial and what would be relevant is thetruthfulness of the statement made by such a witness. What wouldbe more relevant would be the consistency of the statement rightfrom the starting point till the end, namely, at the time when thewitness makes the initial statement and ultimately before the court.It should be natural and consistent with the case of the prosecutionqua the accused. There should not be any prevarication in theversion of such a witness. The witness should be in a position towithstand the cross-examination of any length and howsoeverstrenuous it may be and under no circumstance should give roomfor any doubt as to the factum of the occurrence, the personsinvolved, as well as the sequence of it. Such a version shouldhave co-relation with each and every one of other supportingmaterial such as the recoveries made, the weapons used, themanner of offence committed, the scientific evidence and theexpert opinion. The said version should consistently match with E

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the version of every other witness. It can even be stated that itshould be akin to the test applied in the case of circumstantialevidence where there should not be any missing link in the chainof circumstances to hold the accused guilty of the offence allegedagainst him. Only if the version of such a witness qualifies theabove test as well as all other such similar tests to be applied, canit be held that such a witness can be called as a “sterling witness”whose version can be accepted by the court without anycorroboration and based on which the guilty can be punished. Tobe more precise, the version of the said witness on the corespectrum of the crime should remain intact while all other attendantmaterials, namely, oral, documentary and material objects shouldmatch the said version in material particulars in order to enablethe court trying the offence to rely on the core version to sievethe other supporting materials for holding the offender guilty ofthe charge alleged.”

5.4.3 In the case of Krishna Kumar Malik v. State of Haryana(2011) 7 SCC 130, it is observed and held by this Court that no doubt, itis true that to hold an accused guilty for commission of an offence ofrape, the solitary evidence of the prosecutrix is sufficient provided thesame inspires confidence and appears to be absolutely trustworthy,unblemished and should be of sterling quality.

5.5 With the aforesaid decisions in mind, it is required to beconsidered, whether is it safe to convict the accused solely on the solitaryevidence of the prosecutrix? Whether the evidence of the prosecutrixinspires confidence and appears to be absolutely trustworthy, unblemishedand is of sterling quality?

6. Having gone through and considered the deposition of theprosecutrix, we find that there are material contradictions. Not only thereare material contradictions, but even the manner in which the allegedincident has taken place as per the version of the prosecutrix is notbelievable. In the examination-in-chief, the prosecutrix has stated thatafter jumping the fallen compound wall accused came inside and thereafterthe accused committed rape. She has stated that she identified theaccused from the light of the mobile. However, no mobile is recovered.Even nothing is on record that there was a broken compound wall. Shehas further stated that in the morning at 10 O’clock she went to thepolice station and gave oral complaint. However, according to the AB

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Ainvestigating officer a written complaint was given. It is also required tobe noted that even the FIR is registered at 4:00 p.m. In her deposition,the prosecutrix has referred to the name of Shanti Devi, PW1 and others.However, Shanti Devi has not supported the case of the prosecution.Therefore, when we tested the version of PW5 -prosecutrix, it isunfortunate that the said witness has failed to pass any of the tests ofB“sterling witness”. There is a variation in her version about giving thecomplaint. There is a delay in the FIR. The medical report does notsupport the case of the prosecution. FSL report also does not supportthe case of the prosecution. As admitted, there was an enmity/disputebetween both the parties with respect to land. The manner in which theCoccurrence is stated to have occurred is not believable. Therefore, inthe facts and circumstances of the case, we find that the solitary versionof the prosecutrix – PW5 cannot be taken as a gospel truth at face valueand in the absence of any other supporting evidence, there is no scope tosustain the conviction and sentence imposed on the appellant and accusedis to be given the benefit of doubt.D

6. In view of the above and for the reasons stated above, theappeal is allowed. The impugned judgment and order of conviction andsentence passed by the learned trial Court and confirmed by the HighCourt are hereby quashed and set aside. The appellant is acquitted fromall the charges levelled against him and he be set at liberty forthwith, if Enot required in any other case.

Devika Gujral

Appeal allowed.

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