CRIMINAL APPEAL 90 of 2000 on 14 July 2000

ORAL JUDGMENT

Date : 05-03-2025

1. The criminal appeal is filed by theappellant/Sangam Lal Rai against the judgment ofthe First Additional Sessions Judge-cum-SpecialJudge, Saran at Chapra in Sessions Trial No. 74/2001arising out of Dighwara P.S. Case No. 90 of 2000dated 03.02.2004, wherein the appellant wasconvicted for the offences punishable under Sections342 and 376 of IPC and was sentenced to undergo rigorous imprisonment for a period of one year andseven years respectively.

2. The case of the prosecution as culled outfrom the fardbeyan is that the victim (x) theinformant preferred a written application to theSuperintendent of Police, Saran at Chapra on26.07.2000 alleging that on 14.07.2000 at about09:00 P.M., she along with her bhabhi-Sushila hadgone to attend nature call, near the railway crossingat Dighwara, while returning to the village theappellant Sangam Lal Rai forcibly abducted her andtook her to the gola/ (storage facility) of ArvindKumar and confined her for five days. During thisperiod, the appellant allegedly brought food from ahotel and raped her every night. Thereafter, theappellant took her, to his house where his wife waspresent, but she did not intervened with the actionsof the appellant. It was also alleged that when sheraised her voice, the appellant used to administersome medicine to her. Further, the farebeyandisclose that the victim’s brother Bhola and herbrother-in-law(bahnoi)Rajendracametothe appellant’s house in search of her, then theappellant gagged her mouth, assaulted her brotherand Bahnoi and chased them away. The informantremained confined in the gola of Arvind Kumar forfive days and was subsequently kept at the house ofthe appellant for another five days and during thesaid period she was repeatedly subjected to rape.

3. On 25.07.2000, Chaukidar and Dafadar ofthe Police Station visited the appellant’s house andupon hearing the victim cries for help, theybroke/open the lock of the house and rescued her.Thereafter, she was taken to the Police Station.However, the Station Officer refused to register hercase and instead asked her to submit a writtenapplication, prompting her return from the PoliceStation. The contents of the fardbeyan disclose thatthe victim was raped for 12 days by the appellantand was unlawfully confined at gola as well as at theappellant’s house and whenever she resisted, theappellant allegedly threatened her to kill.

4. Basing on the written application/fardbeyan of the victim, an First Information Report(FIR) was registered against the appellant videP.S. Case No. 90 of 2000 of Dighwara Police Stationon 17.08.2000. The Investigating Officersinvestigated the case and later a charge-sheet wassubmitted on 21.01.2001 (charge-sheet No. 03 of2001 under Sections 342 and 376 of IPC along withSections 3(2)(v) and 3(1)(XII) of SC/ST). Cognizancewas taken by the Judicial Magistrate First Class,Saran and later it was committed to the Court ofSessions. Further the case was made over to theSpecial Judge-cum-First Additional Sessions Judge,Saran for trial.

5. During the course of trial, charges wereframed on 12.04.2001 against the appellant for theoffence punishable under Sections 342 and 376 ofIPC along with Section 3(1)(XII) and Section 3(2)(v) ofSC/ST Act, read over and explained to the appellantin Hindi for which the appellant pleaded not guiltyand claimed to be tried.

6. During the course of trial, prosecutionwitnesses P.Ws. 1 to 10 were examined and the following Exhibits got marked. The details of whichare as follows:-

Sl.Prosecution WitnessProsecution WitnessNo. NameDetailsP.W. 1 Rajendra Paswan Brother-in-law of thevictimP.W. 2 Bhola Manjhi Brother of the victimP.W. 3 Brinda Kahar Co-villagerP.W. 4 Yogendra Father of the victimP.W. 5 ‘X’ victimP.W. 6 Md. Shafique Khan DafadarP.W. 7 Rahamuddin Co-villagerAnsari@ Rahamuddin MianP.W. 8 Jawahar Paswan Co-villagerP.W. 9 Garib Ram Investigating OfficerP.W.10 Shiveshwar Pd. Investigating OfficerShukla SL.NoList of Exhibits Details of Exhibits1.Exhibit 1Endorsement by SHO on written application2.Exhibit 2Formal FIR3. Exhibit 1/1Endorsement by SP on thewritten application4.Exhibit 3Written application5.Exhibit 4Signature of Yogendra Paswan

7. The accused was examined under Section 313 of the Cr.P.C. regarding the incriminatingmaterial found against him, from the evidence of the prosecution. The accused denied the evidence of theprosecution and lead his defence by examiningdefence witnesses (D.Ws. 1 to 3) the details of whichare as follows:- S.L.Defence WitnessDefence WitnessNo.NameDetailsD.W. 1Ajeet RaiCo-brotherD.W. 2Ishwari PrasadCo-villagerD.W. 3Surendra SahCo-villager

8. After considering the entire evidence onrecord, the trial Court convicted the appellant for theoffences punishable under Sections 342, Section 376of IPC and sentenced him to rigorous imprisonmentfor a period of one year and rigorous imprisonmentfor a period of seven years respectively. However,the trial Court acquitted the appellant for thecharges framed under the provisions of SC/ST Act,observing that there was lack of substantiveevidence to establish caste based atrocities, despitethe victim belonging to Scheduled Caste. Aggrievedby the said judgment dated 03.02.2004 in S.T. No. 74of 2001 on the file of First Additional Sessions Judge,Saran the appellant has preferred this appeal.

9. Heard the Learned Amicus Curiae, Ms.Anukriti Jaipuriyar and the Learned Additional PublicProsecutor Mrs. Anita Kumari Singh.

10. It is specific contention of the LearnedAmicus Curiae that the trial Court convicted theappellant based on sole testimony of P.W. 5, thoughthere are significant contradictions in her evidence.She also contended that the testimony of P.W. 5 isnot trustworthy, unreliable and insufficient to convictthe appellant as it lacked corroborative evidence.She also contended that P.W. 5 made substantialimprovements in her testimony compared to theinitial fardbeyan. Additionally, no complaint wasmade by either the victim’s husband or her fatherdespite her alleged disappearance for a period of tendays which raises doubts about the veracity of theprosecution’s case.

11. It is specifically contended by theLearned Amicus Curiae that there was enmitybetween the parties i.e. the appellant and the familymembers of the victim, as evident from thetestimony of the victim herself. She argued that the trial Court failed to appreciate the evidence, leadingto a miscarrage of justice and, therefore, prayed toacquit the appellant as the prosecution hasmiserably failed to prove the guilt of the appellantfor the offences punishable under Section 342 andSection 376 of IPC beyond reasonable doubt.

12. On the other hand, the LearnedAdditional Public Prosecutor Mrs. Anita Kumari Singhcontended that there was no error or irregularity inthe judgment of the trial Court, as the victim herselftestified that she was subjected to continuous rapefor ten days by the appellant. The trial Court invokedpresumption under Section 114(A) of the IndianEvidence Act which presumes the absence ofconsent in certain prosecution for rape, i.e. if theprosecutrix testifies that she was raped without herconsent, the Court must presume that she did notconsent and as such the judgment needs nointerference, therefore, prayed to confirm thejudgment of the trial Court.

13. The point for determination in this case is that:-

(I). Whether the prosecution is able to provethe guilt of the appellant for the offence punishableunder Section 342 and 376 of IPC beyond reasonabledoubt?

(II). Whether the trial Court has rightlyconvicted the appellant for the aforesaid offences?

14. In order to determine the aforesaidpoints, it is necessary to re-appreciate the evidenceof the witnesses and the documentary evidencewhich is on record.

15. It is pertinent to mention that the trialCourt relied on the testimony of P.W. 5 and solelybased on her evidence, the appellant was convicted,therefore, it is not necessary to give muchimportance to the evidence of the other witnessesand their evidence will be discussed as and whennecessary to the extent required. It is also importantto note that there is no medical evidence on recordto corroborate the oral testimony of P.W. 5 in anymanner, to establish that the victim was sexuallyassaulted by the appellant for a continuous period of12 days against her will and consent.

16. It is just necessary to re-appreciate thecontents of the written application of the victim i.e.Exhibit-3. As per the contents of the writtenapplication/fardbeyan, the victim initially stated thatshe was confined in the gola of Arvind Kumar for aperiod of five days and later was confined in thehouse of the appellant for another five days, wherethe appellant has forcibly committed rape againsther. The place of occurrence, as the per the victimwas the gola of Arvind Kumar and the house of theappellant. However, the written application furtherdisclose that she was rescued from the house of theappellant by the Chaukidar and Dafadar on25.07.2000. As per the fardbeyan, she was abductedon 14.07.2000 at about 09:00 P.M. from the railwaycrossing nearby Dighwara Railway Station whichindicates that she was rescued on the 11[th] day.However, the contents of the fardbeyan furtherdisclose that she was raped by the appellant fortwelve days, which contradicts the version of thevictim.

17. The contents of the fardbeyan alsodisclose that her brother Bhola/P.W. 2 and herbrother-in-law (Bahnoi)/Rajendra P.W. 1 went to thehouse of the appellant but the appellant assaultedand chased them away. However, no specific date ismentioned in the fardbeyan as to when P.Ws. 1 and 2visited the house of the appellant.

18. The evidence of P.W. 5 disclose that onthe date of the incident, she had gone to DighwaraRailway crossing for defecation while returninghome, the appellant forcibly took her to gola ofArvind Kumar Sah and confined her there for fivedays. Later, the appellant took her to his house,where she remained for four days. The testimony ofP.W. 5 again contradicts with the written application.In the written application she initially stated that shewas confined for ten days but as per the dates shementioned she was confined for eleven days. Furtherin the written application she claimed that she wasraped for twelve days whereas in her testimony, shestated, it was nine days.

19. For the first time in her testimony P.W. 5states that P.W. 3 and P.W. 1 came to the house ofthe appellant on fourth day and she heard theirvoices while confronting the appellant about herconfinement and the appellant had assaulted P.W. 3and P.W. 1.

20. This statement also contradicts with thatof the fardbeyan. As per the fardbeyan, P.W. 1 andP.W. 2 went to the house of the appellant, whereas,the testimony of P.W. 5 disclose that P.W. 3 and P.W. 1went to the house of the appellant. This discrepancyis very much significant. Her evidence furtherdisclose that on the next date i.e. 5[th] day of herconfinement at the house of appellant, the Chaukidarand Dafadar came to the house of the appellant andbroke/opened the lock of the house and took her tothe Police Station. However, this statementcontradicts with the evidence of P.W. 6.

21. The initial version of the victim as perthe written application (Exhibit-3) is that she wascontinuously raped for twelve days. However, shespecifically contended in her chief-examination that she was raped by the appellant for two nights. Shealso testified that she went to the office of theSuperintendent of Police and preferred a writtenapplication.

22. In cross-examination, P.W. 5 testified thatshe was married to one Rupa Paswan, but at thattime of incident she was residing at her father’shouse while her husband was at Delhi. Shespecifically admitted that medical examination wasnot conducted on her. Further, she admitted that P.W.1 is her brother-in-law, P.W. 2 is her biologicalbrother, and P.W. 3 is related to her as a neighbour.

23. She also admitted that the appellant hadlodged a case against P.W. 1 and consequently thepolice interrogated P.W. 1, her brother/P.W. 2 whichcaused distress to her family. Her evidence furtherdisclose that her family members discussed thematter at home and decided to lodge a complaint forwhich her father suggested that a rape case has tobe filed against the appellant. Her testimony furtherdisclose that there were many shops locatedbetween her house and the railway crossing, and to that of the gola of Arvind Kumar and the railway roadof Dighwara is a busy area.

24. It is also relevant to mention that as perthe fardbeyan, the sister-in-law/(Bhabhi) of P.W. 5 i.e.Sushila Devi accompanied P.W. 5, when she went fordefecation. But the chief-examination of P.W. 5 isvery much silent, as to the presence of Sushila. Theprosecution has not examined Sushila who is theeye-witness to the incident for the best reasonsknown to them.

25. In the cross-examination, P.W. 5

categorically stated that she went for defecationwithout carrying water and while returning, theappellant caught hold of her and carried her on hisshoulder and that the appellant gagged her mouthwith one hand and kept the other hand on her backwhile carrying her on his shoulder.

26. It is the contention of Learned AmicusCuriae that it is highly improbable for a man to gag awoman’s mouth with one hand while/simultaneouslycarrying her on his shoulder and supporting her backwith the other hand. Further the distance stated by P.W. 5 from the place of crossing to the place of go-down was approximately one mile. Further in cross-examination, P.W. 5 also stated that Sushila followedthem up to the gola of Arvind Sah and in thepresence of both Arvind and Sushila, the appellantcommitted rape on her and at that particular point oftime, both Sushila and Arvind remained silent.Though she was in the gola of Arvind Sah, herbrother, father, bahnoi did not come to rescue her.

27. P.W. 5 further stated that Arvind Sahgenerally used to open the door of the gola duringthe day, after which the appellant would lock it andcommit rape upon her during the night times. Shestated that she was raped for three nights, whichagain contradicts the contents of the fardbeyan aswell as her chief-examination. Her evidence furtherdisclose that she was shifted from the godown to thehouse of the appellant on a scooter, borrowed by theappellant from Arvind Sah and she sat on the rearseat of the scooter. She testified that she informedthe Sub-Inspector of Police that she was kept in thegodown for three days and while being transported from the godown to the house of the appellantthrough the market, she tried to escape from thescooter, she fell and sustained an injury to her legand that she also resisted and raised an alarm whilebeing moved from the gola to the house of theappellant. Despite her hue and cry no one from thePolice Station or the house of Arvind Sah or thesurrounding area people came to rescue her. Shefurther attempted to jump from the scooter, whenthe scooter passed in front of her house but, theappellant forced her to sit on it. Her evidence furtherdisclose that the appellant gagged her and made hersit on the scooter, shutting her mouth with one handand riding the scooter with the other hand.

28. The Learned Amicus Curiae contendedthat it is also highly improbable for a person to shutthe mouth of a pillion rider, while simultaneouslydriving the scooter, in light of physical impossibilityof such act, the evidence of P.W. 5 cannot be trusted.Further P.W. 5 in her cross-examination testified thatthe Chaukidar and Dafadar of the Police Stationcame to the house of the appellant and that the lock was opened by the appellant himself at the directionof the Chaukidar.

29. There are two important issues which areto be discussed in the appeal that are:-

(I). Whether the evidence of P.W. 5 istrustworthy so as to convict the appellant?

(II). Whether basing on her testimony asdiscussed Supra there exists many materialdiscrepancies and contradictions from the evidenceof P.W. 5, when compared with that of her chief-examination and the fardbeyan.

30. The fardbeyan does not disclose the factthat the appellant gagged the mouth of the P.W. 5either during her shifting from the railway crossing tothe gola of Arvind Sah or while shifting her from thegola to the house of the appellant. Admittedly, FIRcannot be an encyclopedia of all the facts, but atleast 161 statement of the victim should containthese aspects. For the first time, P.W. 5 testified,these facts before the Court, after a gap of one yearfrom the date of the incident. On the one hand, sheclaimed that she was accompanied by her sister-in- law/Sushila, however, the presence of Sushila wasnot mentioned in her chief-examination.

31. During cross-examination, P.W. 5 testifiedthat in the presence of Arvind Sah and Sushila theappellant committed rape on her. If at all, Sushilawitnessed the appellant forcibly taking the victimfrom the railway crossing to the gola of Arvind Sah orhad seen the alleged rape being committed in herpresence as to why the prosecution has failed toexamine her as witness?.

32. The evidence of the eye-witness iscrucial and an important aspect to be proved by theprosecution. The only eye-witness in this case isSushila. Furthermore, the father of the victim i.e. P.W.4 remained silent for a period of ten days, despiteher daughter being missing from the house. Theprosecution has miserably failed to explain as to howthe police got information about the presence of thevictim/P.W. 5, at the house of the appellant.

33. P.W. 6/Dafadar in his evidence clearlytestified that the wife of the appellant opened thelock, where the victim was confined. His testimony further disclose that as Sub-Inspector (SI) did notregister the case, the victim left the Police Stationand went to her father’s house where she narratedthe incident to her father, mother and brotheralleging that the appellant raped her for two nights.

34. The Chaukidar who accompanied P.W. 6-the Dafadar was also not examined before the Court.Furthermore, the evidence of P.W. 6 is silent at tohow the father of the victim came to know about thepresence of the victim, at the house of the appellant.The evidence of P.W. 6 disclose that on the directionsof the constable/ Laxminath he along with theChaukidar went to the house of the appellant, wherethe wife of the appellant opened the door, and theybrought the victim along with them to the policestation.

35. P.W. 9 is the Investigating Officer, whoinvestigated the case. His evidence disclose that heinspected the place of occurrence i.e. DighwaraRailway Crossing, from where the victim was lifted bythe appellant, i.e. the Railway Crossing, further theGola of Arvind Sah and the house of the appellant.

36. As per his evidence, the house of theappellant consist of only single room whichcontradicts the evidence of P.W. 6. The evidence ofP.W. 6 disclose that he went into the house of theappellant and found one room locked which wasopened by the wife of the appellant. If at all, thehouse of the appellant is a single room, the questionof Dafadar entering into the house of the appellantand opening room creates doubts as to the place ofalleged occurrence.

37. Further the evidence of P.W. 9 disclosethat he did not collect any incriminating evidencefrom all three place of occurrences. Thus apart fromthe oral testimony of P.W. 5, there exist no othercorroborative evidence on record to sustain theconviction of the appellant. None of the witnessesstated about the wrongful confinement of the victimeither at the house of the appellant or at the Gola ofArvind Sah. The evidence of P.Ws. 1 to 3 also cannotbe relied upon, as it does not corroborate with theevidence of P.W. 5 in any aspect, except stating thatthey visited the house of the appellant and where they were assaulted and were driven out from thehouse of the appellant, if at all, such incident tookplace what made P.W. 1 to 3 not to report, it to thePolice this is also not explained by the prosecution inany manner.

38. Medical evidence plays very crucial roleto prove the offence under Section 376 IPC. In thepresent case, the victim was not subjected tomedical examination, for the reasons best known tothe prosecution. While it is well settled that the soletestimony of the prosecutrix/victim is sufficient toconvict an accused, if it is trustworthy, inspiresconfidence of the Court by convincing about thetruthfulness of the prosecutrix. There exists nocircumstances to believe the veracity of P.W. 5, so asto convict the appellant the sole testimony of theprosecutrix. In the present case, also there are manymaterial discrepancies and contradictions in theevidence of the prosecutrix and, therefore, it cannotbe the sole basis for conviction.

39. In order to support the case of theappellant, the Learned Amicus Curiae relied on the citations of the Hon’ble Apex Court in the case ofChotkau Vs. State of Uttar Pradesh reported inAIR 2022 SC 4688, wherein their Lordships haveheld at Paras 65 and 66 which reads as follows:-

65. A delay in transmission of theFIR to the court, may not, per se,be fatal, without anything more.But in the case on hand, the delaywas not small. The FIR said tohavebeenregisteredon08.03.2012 was received by theCourt of the Chief JudicialMagistrate on 13.03.2012. It istrue that no question was put incross-examinationtotheInvestigation Officer about thisdelay.

66. But we have found that theevidence of P.Ws. 1 to 3 isuntrustworthy, particularly on thequestion of the origin and genesisof the First Information Report.Therefore the inordinate delay inthe FIR reaching the jurisdictionalcourt assumes significance. Weagree that the word "forthwith" inSection 157(1) of the Code is tobe understood in the context of the given facts and circumstancesof each case and a straitjacketformula cannot be applied in allcases.

But where ocular evidenceis found to be unreliable and thusunacceptable, a long delay has tobe taken note of by the Court. Themandate of Section 157(1) of theCode being clear, the prosecutionis expected to place on record thebasic foundational facts, such as,the Officer who took the firstinformationreporttothejurisdictional court, the authoritywhich directed such a course ofaction and the mode by which itwas complied. Explaining thedelay is a different aspect thanplacingthematerialincompliance of the Code.

40. In the present case, there was nosignificant delay of the FIR, reaching the Court. Thedate of incident, as per the victim in the writtenapplication was 14.07.2000, she testified that shewas confirmed for ten days i.e. five days at the golaof Arvind Sah and five days at the house of the appellant and later she was brought to the PoliceStation by P.W. 6 and the Chaukidar.

41. As per the contents of the fardbeyan, shereached the Police Station on 25.07.2000 and theSub-Inspector (SI) did not register the case and assuch, she made a written application to theSuperintendent of Police on 26.07.2000. However,the FIR was registered on 17.08.2000 i.e. after 21days of her written application. Neither P.W. 9 norP.W. 10, the Investigating Officers explained thedelay in registering the FIR. Admittedly, there was nocross-examination of the Investigating Officers on inthis aspect.

42. There may be a delay in lodging thecomplaint by the victim in the case of Section 376 ofIPC, but P.W. 5 categorically stated that the police didnot register the complaint, after which she went herhouse narrated the entire incident to her parents andsiblings and later on the next date they approachedthe Superintendent of Police, Saran and preferred awritten application. There is a delay of twenty days in registering the FIR as stated Supra, which iscrucial to the case of the prosecution

43. Their Lordships in the judgment of

Chotkau Vs. State of Uttar Pradesh (supra)have also heldat para Nos. 72, 73 and 74, whichreads as follows:-

72. Section 53(1) of the Codeenables a police officer not below therank of Sub-Inspector to request aregistered medical practitioner, tomake such an examination of theperson arrested, as is reasonablynecessary to ascertain the factswhich may afford such evidence,whenever a person is arrested on acharge of committing an offence ofsuch a nature that there arereasonable grounds for believing thatan examination of his person willafford evidence as to the commissionof an offence. Section 53(1) readsasfollows:

“53. Examination of accusedby medical practitioner at therequest of police officer. (1) When aperson is arrested on a charge ofcommitting an offence of such a nature and alleged to have beencommitted under such circumstancesthat there are reasonable groundsfor believing that an examination ofhis person will afford evidence as tothe commission of an offence, it shallbe lawful for a registered medicalpractitioner, acting at the request ofa police officer not below the rank ofsub-inspector, and for any personacting in good faith in his aid andunder his direction, to make such anexamination of the person arrestedas is reasonably necessary in orderto ascertain the facts which mayafford such evidence, and to usesuch force as is reasonablynecessary for that purpose."

73. By Act 25 of 2005, a newExplanation was substituted underSection 53, in the place of theoriginal Explanation. The Explanationso substituted under Section 53, byAct 25 of 2005 reads as follows "Explanation. In this section and insections 53A and 54

(a) "examination"shallinclude the examination of blood,blood stains, semen, swabs in case

of sexual offences, sputum andsweat, hair samples and finger nailclippings by the use of modern andscientific techniques including DNAprofiling and such other tests whichthe registered medical practitionerthinks necessary in a particular case; (b)"registered medical practitioner" means a medicalpractitioner who possess any medicalqualification as defined in clause (h)of section 2 of the Indian MedicalCouncil Act, 1956 (102 of 1956) andwhose name has been entered in aState Medical Register."

74. Simultaneously with thesubstitution of a new Explanationunder Section 53, Act 25 of 2005 alsoinserted new provision in Section53A. Section 53A reads as follows:

"53A. Examination of personaccused of rape by medicalpractitioner.

(1) When a person isarrested on a charge of committingan offence of rape or an attempt tocommit rape and there arereasonable grounds for believing thatan examination of his person will afford evidence as to the commissionof such offence, it shall be lawful fora register medical practitioneremployed in a hospital run by theGovernment or by a local authorityand in the absence of such apractitioner within the radius ofsixteen kilometers from the placewhere the offence has beencommitted by any other registeredmedical practitioner, acting at therequest of a police officer not belowthe rank of a sub-inspector, and forany person acting in good faith in hisaid and under his direction, to makesuch an examination of the arrestedperson and to use such force as isreasonably necessary for thatpurpose.(2)Theregisteredmedicalpractitionerconductingsuchexamination shall, without delay.examine such person and prepare areport of his examination giving thefollowing particulars, namely:"(i) The name and address of theaccused and of the person by whomhe was brought.

(ii) The age of the accused.

(iii) Marks of injury, if any, on theperson of the accused,

(iv) The description of material takenfrom the person of the accused forDNA profiling, and

(v) other material particulars inreasonable detail.

(3) The report shall state preciselythe reasons for each conclusionarrived at.

(4) Theexacttimeofcommencement and completion ofthe examination shall also be notedin the report.

(5) Theregisteredmedicalpractitioner shall, without delay,forwardthereportoftheinvestigating officer, who shallforward it to the Magistrate referredto in Section 173 as part of thedocuments referred to in Clause (a)of sub-section (5) of that section."

44. As per the above ruling of the Hon’bleApex Court, it is necessary for the prosecution torefer both the victim and the accused to a medicalpractitioner, as soon as they are brought to thepolice station or taken into custody. In the present case, neither the victim nor the appellant wassubjected to medical examination to substantiate theallegation against the appellant for the offencepunishable under Section 376 of IPC.

45. On perusal of the evidence of P.W. 9, it isevident that he recorded the statements of severalprosecution witnesses however they were notexamined before the Court to corroborate theevidence of P.W. 5 in any manner.

46. The Learned Amicus Curiae also relied onthe judgment of Rai Sandeep alias Deepu Vs.State of NCT of Delhi reported in 2012 8 SCC 21,wherein their Lordships have held that, beforerelying on the sole testimony of the prosecutrix, theCourt must satisfy that the prosecutrix is a ‘sterlingwitness.’ For the convenience of the Court Para No.22 of the judgment is reproduced as under:-

22. In our considered opinion, the"sterling witness" should be of a veryhigh quality and calibre whoseversion should, therefore, beunassailable. The court consideringthe version of such witness should bein a position to accept it for its face value without any hesitation. To testthe quality of such a witness, thestatus of the witness would beimmaterial and what would berelevant is the truthfulness of thestatement made by such a witness.What would be more relevant wouldbe the consistency of the statementright from the starting point till theend, namely, at the time when thewitness makes the initial statementand ultimately before the court. Itshould be natural and consistent withthe case of the prosecution qua theaccused. There should not be anyprevarication in the version of such awitness. The witness should be in aposition to withstand the cross-examination of any length andhowsoever strenuous it may be andunder no circumstance should giveroom for any doubt as to the factumof the occurrence, the personsinvolved, as well as the sequence ofit. Such a version should have co-relation with each and every one ofother supporting material such as therecoveries made, the weapons used,the manner of offence committed, the scientific evidence and the expertopinion. The said version shouldconsistently match with the versionof every other witness. It can even bestated that it should be akin to thetest applied in the case ofcircumstantial evidence where thereshould not be any missing link in thechain of circumstances to hold theaccused guilty of the offence allegedagainst him. Only if the version ofsuch a witness qualifies the abovetest as well as all other such similartests to be applied, can it be heldthat such a witness can be called as a"sterling witness" whose version canbe accepted by the court without anycorroboration and based on which theguilty can be punished. To be moreprecise, the version of the saidwitness on the core spectrum of thecrime should remain intact while allother attendant materials, namely,oral, documentary and materialobjects should match the said versionin material particulars in order toenable the court trying the offence torely on the core version to sieve theother supporting materials for holding the offender guilty of the chargealleged.

47. The above citations are squarelyapplicable to the facts and circumstances of thepresent case. When the evidence of the prosecutrixis not trustworthy, it is for the prosecution toexamine the other witnesses, so as to corroboratethe evidence of the prosecutrix. In the present case,Sushila Devi i.e. (Bhabi)-sister-in-law of the victimwho was alleged to have accompanied the victim atthe time of defecation and later, followed the victimand the appellant to the gola of Arvind Sah and inwhose presence the alleged rape was committed,was also not examined. Further, Arvind Sah in whosepremise the incident occurred and an allegedincident took place was also not examined. Further,the prosecution has failed to examine the Chaukidar-Bali Manjhi who alleged to have accompanied P.W.6/Dafadar to rescue the victim from the house of theappellant. The wife of the appellant was also notexamined to prove that she was confined in thehouse for a period of five days.

48. At this juncture, the Learned AmicusCuriae relied on the citations of the Hon’ble ApexCourt in Takhaji Hiraji Vs. Thakore KubersingChamansing and Others reported in (2001) 6SCC 145 wherein their Lordships have held at Para19 which reads as follows:-

19. So is the case with the criticismlevelled by the High Court on theprosecution case finding faulttherewith for non-examination ofindependent witnesses. It is true thatif a material witness, who wouldunfold the genesis of the incident oran essential part of the prosecutioncase, not convincingly brought tofore otherwise, or where there is agap or infirmity in the prosecutioncase which could have been suppliedor made good by examining awitness who though available is notexamined, the prosecution case canbe termed as suffering from adeficiency and withholding of such amaterial witness would oblige thecourt to draw an adverse inferenceagainst the prosecution by holdingthat if the witness would have been examined it would not havesupported the prosecution case. Ontheotherhandifalreadyoverwhelming evidence is availableand examination of other witnesseswould only be a repetition orduplication of the evidence alreadyadduced, non-examination of suchother witnesses may not be material.In such a case the court ought toscrutinise the worth of the evidenceadduced. The court of facts must askitself whether in the facts andcircumstances of the case, it wasnecessary to examine such otherwitness, and if so, whether suchwitness was available to beexamined and yet was beingwithheld from the court. If theanswer be positive then only aquestion of drawing an adverseinference may arise. If the witnessesalready examined are reliable andthe testimony coming from theirmouth is unimpeachable the courtcan safely act upon it, uninfluencedby the factum of non-examination ofother witnesses. In the present casewe find that there are at least 5

witnesses whose presence at theplace of the incident and whosehaving seen the incident cannot bedoubted at all. It is not evensuggested by the defence that theywere not present at the place of theincident and did not participatetherein. The injuries sustained bythese witnesses are not just minorand certainly not self-inflicted. Noneof the witnesses had a previousenmity with any of the accusedpersons and there is apparently noreason why they would tell a lie. Thegenesis of the incident is brought outby these witnesses. In fact, thepresence of the prosecution partyand the accused persons in thechowk of the village is not disputed.How the vanity of the Thakores washurt leading to a heated verbalexchange is also not in dispute. Thenfollowed the assault. If the place ofthe incident was the chowk then itwas a sudden and not premeditatedfight between the two parties. If theaccused persons had reached theirhouses and the members of theprosecution party had followed them

and opened the assault near thehouse of the accused persons then itcould probably be held to be a caseof self-defence of the accusedpersons in which case non-explanation of the injuries sustainedby the accused persons would haveassumed significance. The learnedSessions Judge has on appreciationof oral and circumstantial evidenceinferred that the place of the incidentwas the chowk and not a place nearthe houses of the accused persons.Nothing more could have beenrevealed by other village people orthe party of tightrope danceperformers. The evidence availableon record shows and that appears tobe very natural, that as soon as themelee ensued all the village peopleand tightrope dance performers tookto their heels. They could not haveseen the entire incident. The learnedSessions Judge has minutelyscrutinized the statements of all theeyewitnesses and found themconsistent and reliable. The HighCourt made no effort at scrutinizingand analyzing the ocular testimony so as to doubt, if at all, thecorrectness of the several findingsarrived at by the Sessions Court.With the assistance of the learnedcounsel for the parties we have gonethrough the evidence adduced andon our independent appreciation wefind the eyewitnesses consistent andreliable in their narration of theincident. In our opinion non-examination of other witnesses doesnot cast any infirmity in theprosecution case.

49. The Learned Amicus Curiae also reliedon the judgment of Shankar Chaudhary Vs. theState of Bihar reported in 2023 Live Law (Pat)126 wherein their Lordships have held that:- “CourtCan Draw Adverse Inference Against Prosecution ForNon-Examination Of Material Witness.”

50. As discussed(Supra), the material

witnesses were not examined to corroborate theevidence of P.W. 5. It is further contended by theLearned Amicus Curiae that a false case was lodgedagainst the appellant, as the appellant has lodged acomplaint against the brother and brother-in-law of the victim. The evidence of P.W. 5 categoricallydisclose that there had been a family discussion andit was decided to lodge a complaint against theappellant for the offence punishable under Section376 of IPC. If that is the case, there exist everypossibility for the victim to foist a false case againstthe appellant.

51. On the other hand, the evidence of D.Ws.1, 2 and 3 clearly disclose that the appellant hadfiled a case against Yogendra Paswan/P.W. 4 and inorder to counter it, the present case was lodgedagainst the appellant. The evidence of D.W. 2 alsodisclose that Paswan community had held a meeting,in which a decision was taken to file a false caseagainst the appellant, the evidence of D.W. 3 is alsoin the same line as that of D.W. 2.

52. On re-appreciating the entire oral anddocumentary evidence, It is evident that there is noconcrete material before the Court to prove that thevictim was confined for ten days either at the gola ofArvind Sah or at the house of the appellant or thatthe appellant has committed the offence of rape against the victim/P.W. 5 continuously for a period oftwelve days. Therefore, the judgment and convictionpassed by the trial Court is liable to be set aside.

53. In result, the appeal is allowed settingaside the judgment and order dated 03.02.2004passed by the Learned I[st] Additional Sessions Judge-cum-Special Judge, Saran at Chapra under SC/ST Act1996 in S.T. No. 74/2004 arising out of Dighwara P.S.Case No. 90 of 2000 and the appellant is acquittedfor the offence punishable under Sections 342 and376 of IPC.

54. The record reveals that the appellant wasenlarged on bail by this Court vide order dated23.11.2005. Hence, the bail bonds of the appellantshall stand cancelled.

(G. Anupama Chakravarthy, J)

Manish/-

AFR/NAFRNAFRCAV DATEN/AUploading Date09.05.2025Transmission Date09.05.2025