Dev Darshan Sud, J. (Oral).
The appellant challenges his conviction under Sections 452 and 376 of the Indian Penal Code sentencing him to undergo rigorous imprisonment for a period of two years under Section 452 I.P.C. and fine of Rs.5,000/- and rigorous imprisonment for a period of seven years and fine of Rs.20,000/- for offence under Section 376 I.P.C .
2. The case of the prosecution is that the prosecutrix PW1, who is minor and student of 8th Class studying in Senior Secondary School, Ghumarwin, had been raped by the accused.
3. The case of the prosecution is that F.I.R. No. 133 of 2011 (Ext.PW9/B) was lodged in Police Station, Ghumarwin on the statement Ext.PW1/A of the prosecutrix under Section 154 Cr. P.C. The narration of the incident is thus:
4. The complainant was a student of 8th Class who had lost her father and mother was âPagalâ (mentally unstable). Her elder brother was died. She has two brothers Praveen Kumar and Mahinder Pal, who were working as carpenter and welder respectively. She states that 4/5 months prior to the recording of her statement Ext.PW1/A, she was alone in her house when the accused, who is a teacher in Soy school came to her house in the night time. He switched off the light, switched on the light of his mobile phone and closed the door of the room. He gagged her mouth with his hand, opened his pant and her salwar and committed rape upon her (described as âGalat Kaamâ). She stated that prior to this incident, he had given her a currency note of Rs.10/- on one occasion. After performing this act, he went home. She states that she had narrated the entire facts to PW5 Smt. Sheela Mehta (who is a teacher) on 25.8.2012 and Class In-charge PW2 Smt. Neelam Sharma and PW3 Smt. Champa Sharma. At this juncture, it will be relevant to consider Ext.PW1/A and Ext.PW2/A which are the reports sent by the Principal, Government Girls Senior Secondary School, Ghumarwin to the Station House Officer, Ghumarwin and the complaint made to the Headmistress by the teachers PW2 Smt. Neelam Sharma, PW3 Champa Sharma and PW5 Smt. Sheela Mehta.
5. Adverting to the complaint Ext.PW3/A which was made to the Head Mistress that after the prayer meeting in the school, some girls were sitting in the Verandah of the school were not feeling well. On instructions from the Head mistress, these three witnesses talked to the girl who was crying and in a traumatized state. She was taken to the school office and asked the reason why she was weeping. She disclosed that one person by the name of Bidhu used to tease her. According to the complainant, he was a teacher in school at Soy and was staying near her house. Her domestic conditions were not congenial. The accused visited her house on a number of occasions, took her to a room, closed the door, switched off the light and performed indecent acts with her. He had been doing this for quite some time. She also said that she was suffering from pain in the stomach and found it difficult to walk. She was afraid going home since her brother used to come late in the evening and her mother was mentally disturbed and she had already lost her father. The accused, according to her, had given her Rs.10/- on number of occasions. Complaint Ext.PW2/A was addressed to the Station House Officer, Ghumarwin for registration of a case and a request was made to get the prosecutrix medically examined.
6. The accused and the prosecutrix were medically examined. Ext.PW17/A is the medical examination conducted by PW17 Dr. Priyanka Sharma, who opined that it was possible to presume that some penetration must have taken place. She states that no fresh findings to ascertain the time of sexual intercourse could be observed. PW18 Dr. Tanmay Kaprate, Dental Surgeon, Bilaspur, opined and recorded in M.L.C. Ext. PW18/D that the victim could be in the age group of 13 to 16 years. The accused was also examined on 27.8.2011 and vide Ext.PW13/B, the opinion was that he was found capable of performing sexual intercourse. The statement of the prosecutrix has been relied upon by the learned trial Court concluding that the appellant was guilty of the offences, as charged.
7. Adverting to the statement of the prosecutrix who was administered oath after the court had ascertained that she was capable of knowing and understanding the meaning of oath, she reiterates what she has stated in statement Ext.PW1/A. She was declared hostile by the Public Prosecutor and then cross-examined. I am unable to find anything in the record to substantiate the reason as to why she was allowed to be cross-examined at length by the Public Prosecutor. Adverting to her cross-examination, she states that she and her family and that her uncle Budhi Singh reside in the same house. Two rooms were in possession of her uncle Budhi Singh and two with the family of the prosecutrix. On the day of the incident, her mother was cooking in the kitchen and her aunt was cooking food in her kitchen. All the members of the family of her uncle Budhi Singh were present in the house on the day of occurrence. She states that there are four rooms in the house out of which two are in possession of her family and two rooms with the family of her uncle Budhi Singh. She says that her brother usually returned home in the late hours. She then states that:
âAYAH THIK HAY KI MAINE SARI BAT APNI MATA AUR BHAIYOO KO HADSAY KAY DEEN BATA DEE THEE. ISHI TARHA MAINE APNAY UNCLE BUDHI RAM AUR ANTY BIMLA KO BHEE HADSAY BARAY USHI DEEN BATAA DIYA THA. YAHA THIK HAI KEE MUJHAY MAIRA CHAHA BUDHI RAM AUR BHAI POLICE KAY PASH AKALAY DEEN KO LAY GAYA. YAHA THIK HAI KEE MUJHAY POLICE NAY NIRDESH DIYA KI PAHALAY GHATNA BARAY APNAY ADHYAPKOO KO BATYA AUR PHEER THANAY PAR GAY. YAHA THEEK HAI KEE ISHKAY BAAD MAINAY APNAY ADHYAPKOO KO HADSHAY BARAY BATYA. YAHA THIK HAI KEE HAMRAY ADHYAPKO NAY POLICE KOO BULAYA AUR TAB HAMARAY BAYANOO KO LEEKHA. YAHA THIK HAI KEE MAINAY YAHI BATAY POLICE KOO BATAI. JOO MUJHAY POLICE NAY BATAI. MAI TIRTHU KO JANTI HOO JO POLICE WAYA HAI. YAHA GALAT HAI KI MATAA NAY MUJAY RS.100/- KA NOTE DIYA THA. YADHYAPI YAHA SACH HAI KI TIRTHU KEE MATA NAY MUJHAY KAHA THA KI POLICE OR ADHYAPAK KAY PASS DOSHI KA NAAM LOU. YAHA GALAT HAI KI DOSHI NAY MAIRAY SATH KOI BUREE HARKAT NA KEE. YAHA GALAT HAI KI MUJHAY ADALAT KAY BAHAR AAJ DOSHI KAY KHILAPH BAYAN DEENAY KO KAHA THA. YAHA GALAT HAI KI MAI GALAT BAYAN KER RAHEE HOO.â
âTranslation: It is correct that I narrated the entire incident on the same day to my mother and brothers. In the same manner I also informed my Uncle Budhi Ram and aunty Bimla. It is correct that my Uncle Budhi Ram and bothers took me to the police station on the next day. It is correct that the police asked me that I should first narrate the entire incident to my teacher and then come to the police station. It is correct that thereafter I informed my teachers and it is thereafter that the police came and recoded my statement. It is correct that I have narrated only those things which the police had told me to state. I know Tirath, who is a policeman. It is incorrect that his mother gave me Rs.100/-. It is correct that the mother of the Tirath had told me that I should mention the name of the accused in front of the teachers.
âThis part of the cross-examination is not a selective reproduction of the evidence but that portion which goes to the veracity of what the prosecutrix state in examination-in-chiefâ
8. PW2 Smt. Neelam Sharma states that she was a teacher in the school. She had submitted complaint Ext.PW2/A in the Police Station. She admits in cross-examination that she did not conduct any independent inquiry. PW3 Champa Sharma, T.G.T., was declared hostile. She states in her examination-in-chief that on 18th July, 2012 she was the member of the adolescent Committee. One girl Urmila Devi stated that she was suffering from stomach pain and found it difficult to walk. On inquiry from another member of the Committee she disclosed that the accused was her neighbor and she was physically harassed by him. In cross-examination by the learned counsel for the accused, she states that she did not record any statement of the victim. To similar effect is the statement of PW5 Smt. Sheela Mehta. PW7 Roshan Lal proves on record Ext.PW7/B which is the Panchayat certificate showing the date of birth of the victim as 27.6.1997. It is on the basis of this document that the prosecutrix was held to be a minor on the date of the occurrence.
9. Adverting to the factual situation on the spot, Ex.PW15/C shows the house of the prosecutrix as also that of her uncle which is, in fact, one building divided from the centre and consisting of two rooms in the ground floor and two in the upper floor. All these facts have been considered for the reason that it would be necessary to appreciate the evidence of the prosecution when it is read in this fact situation. Evidence of PW15 S.I. Sh. Shayam Lal does not advance the prosecution case. This witness, of course, states that he proves on record Ext.PW8/C which is the disclosure statement of the accused pursuant to which the underwear and trouser were recovered. The report of Forensic Science Laboratory does not establish anything on the examination of these clothes to suggest that there were any marks of semen or blood. There is no Forensic evidence to establish rape. It is in these circumstances that this Court is called upon to adjudicate as to whether the sole testimony of the prosecutrix is itself sufficient to sustain conviction. The law on the point is well settled in Aman Kumar and another Vs. State of Haryana, AIR 2004 SC 1497, Naresh Kumar Vs. State of H.P., 2006 Cri. L.J. 1985, State of Himachal Pradesh Vs. Asha Ram, 2006 Cri. L.J. 139 and State of H.P. Vs. Kamal Kishor, 2000 Cr. L.J. 2661.
10. He submits that the Supreme Court is categoric when it holds that the sole statement of the prosecutrix is per se sufficient to sustain conviction and that no corroboration as required for the reason that the prosecutrix is not to be treated as an accomplice. But at the same time, this law as subsequently explained in Dinesh Jaiswal Vs. State of M.P., 2010 Cri. L.J. 1917 and Abbas Ahmad Chuoudhary Vs. State of Assam, 2010 Cri. L.J. 2060 is that there can be no presumption that the prosecutrix is always telling the entire story truthfully. In Raju and others vs. State of Madhya Pradesh (2008)15 SCC 133, where the Supreme Court holds, after reiterating its decision in State of Punjab vs. Gurmit Singh (1996)2 SCC 384 and Ranjit Hazarika vs. State of Assam (1998)8 SCC 635, that while evaluating the evidence of the prosecutrix it must be borne in mind that no self-respecting woman would come forward in a court just to make a statement against her honour that she has been sexually assaulted which would be a serious cause of humiliation and social ostracism. The Court thereafter proceeds:
â10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a part with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh case to the amendments in 1983 to Section 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Section 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case and others, such as this one, need to be examined.â (at p. 141)
11. Learned counsel also submits that in Alamelu and another vs. State represented by Inspector of Police, (2011)2 SCC 385 the Supreme Court holds:-
â51. This Court in Rameshwar v. State of Rajasthan AIR 1952 SC 54 declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivan Bose, J. speaking for the Court observed as follows: (AIR p. 57, para 19)
â19â¦..The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judgeâ¦â¦The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.â
52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence.â (at p.398)
12. It is in the light of these settled principles that where there is some doubt regarding the occurrence, some corroboration should and ought to be established on the record. This is not to assume that the prosecutrix is lying but to judge the veracity of the incident. The mere fact that the first information report was delayed is also not a factor per se to disbelieve the prosecution case but again, this principle cannot be invoked as every fact situation is different and to be judged on its own merit. In Jai Prakash Singh Vs. State of Bihar and another, (2012) 4 SCC 379, the Supreme Court holds:
"11. Admittedly, the FIR had been lodged promptly within a period of two hours from the time of incident at midnight. Promptness in filing the FIR gives certain assurance of veracity of the version given by the informant/complainant.
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish Yadav and Ors. v. State of M.P., (1996) 8 SCC 186; and Takdir Samsuddin Sheikh v. State of Gujarat and Anr., AIR 2012 SC 37). (P.383-384)"
13. Adverting to the proved facts of the present case, I have already held that the cross examination of the prosecutrix has destroyed the very foundation of the case of the prosecution. The medical evidence is also of no assistance since it is based on probabilities and in any event if it is accepted then there is a possible penetration, it cannot be linked with the accused. There is no explanation on the record as to why when the brother, uncle and aunt of the prosecutrix took her to the police after this incident had been disclosed to them immediately after this occurrence no action was taken. PW 15 S.I. Shayam Lal or any other witness does not corroborate this fact. Even accepting the case as urged by the prosecution that the prosecutrix was first asked to go to the school and then go her parents home, there is no explanation as to why this information after lapsed of 3/ 4 months has been imparted to the police. It is in these circumstances that at least slight corroboration becomes necessary. The Court cannot lose sight of the fact that the accused is a teacher though not teaching in the school where prosecutrix is staying but in another school and that the very levelling of the charge of rape and molestation would destroy his entire career and his family.
14. Learned Additional Advocate General submits that people holding responsible public office/position should not be allowed to continue in such position as they pose a great danger to the society at large. True, there can be no dispute with this proposition but there has to be evidence of proved facts in accordance with the principles enshrined in Section 3 of the Evidence Act. The totality of the circumstance of this case on the record does not inspire confidence to establish the fact that the accused had, in fact, committed the offence.
15. In the facts and circumstances of the case, I hold that the accused was not guilty. The prosecution has not been able to prove its case beyond reasonable doubt. The appeal is accepted. It is directed that the warrants of release be prepared and the accused shall be released from the custody forthwith in case he is not wanted in any other case.