Evidence Law - Question of Identification by Voice - Identification from the voice of the accused may be possible if there is evidence to show that the witness was sufficiently acquainted with the accused in order to recognize him or her by voice.
Rape - Identification of Accused by Voice - Not recognize the persons committing the rape by face - not clearly seen the face of anyone at the time of occurrence - victim did not have any acquaintance with any of the accused persons - she could not see and recognize the faces of any of the accused persons at the time of occurrence - it would appear improbable for her to recognize the accused merely by hearing their voice - prosecutrix herself has admitted that there was no acquaintance between the victim and accused - it would be difficult to accept the version of the victim that she recognized the accused from their voice.
Penal Code, 1860 - S.376(2)(g) - testimony of the victim - full of inconsistencies - does not find support from any other evidence - inconsistent and self-destructive at different places - Doctor’s evidence do not specify whether there were any signs of forcible sexual intercourse - false allegations to extract revenge - High Court has proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence - it is not possible for this Court to agree with the concurrent conclusions reached by the courts below.
Rape - Identification of Accused by Voice - Not recognize the persons committing the rape by face - not clearly seen the face of anyone at the time of occurrence - victim did not have any acquaintance with any of the accused persons - she could not see and recognize the faces of any of the accused persons at the time of occurrence - it would appear improbable for her to recognize the accused merely by hearing their voice - prosecutrix herself has admitted that there was no acquaintance between the victim and accused - it would be difficult to accept the version of the victim that she recognized the accused from their voice.
Penal Code, 1860 - S.376(2)(g) - testimony of the victim - full of inconsistencies - does not find support from any other evidence - inconsistent and self-destructive at different places - Doctor’s evidence do not specify whether there were any signs of forcible sexual intercourse - false allegations to extract revenge - High Court has proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence - it is not possible for this Court to agree with the concurrent conclusions reached by the courts below.
AIR 2018 SC 4020 : 2018 (2) ALD (Cri) 674 : JT 2018 (8) SC 302 : 2018 (4) RCR (Criminal) 137 : 2018 (10) Scale 270
CRIMINAL APPELLATE JURISDICTION
[N.V. RAMANA] AND [MOHAN M. SHANTANAGOUDAR] JJ.
AUGUST 29, 2018
CRIMINAL APPEAL NO.1095 OF 2018
(Arising from SLP (Crl.) No. 8578/2017)
DOLA @ DOLAGOBINDA PRADHAN & ANR. ..APPELLANTS
VERSUS
THE STATE OF ODISHA ..RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. The judgment dated
10.05.2017 passed in CRA No. 267 of 1992 by the High Court of Orissa at Cuttack
confirming the judgment of conviction and order of sentence dated 20.07.1992 passed
by the Assistant Sessions Judge, Bonai, in ST No. 65/2 of 1991-1992, is called
in question in this appeal. By the impugned judgment, the High Court has
confirmed the judgment and order of conviction passed against the appellants for
the offence under Section 376(2)(g) of the Indian Penal Code(for short ‘the IPC’)
and order of sentence of Rigorous Imprisonment for ten years.
3. The case of the prosecution
in brief is that when the victim-prosecutrix was enroute home from her road
side “eating house” (hotel) near Khuntagaon weekly market at about 8:00 p.m. on
24.03.1990, the appellants suddenly emerged from behind a ‘Mahulatree’ and
gagged her mouth by a napkin and physically carried her to a roadside date-palm
clump. Akshya Pradhan (Appellant No.2) threatened the victim with dire consequences
by showing a knife at her, and being frightened, the victim could not raise any
alarm. The appellants made her lie on the field and both of them committed rape
on her. The victim thereafter rushed to her house and narrated the entire episode
to her husband. She also showed her torn inner garments worn at the time of
occurrence and the injury sustained by her on her cheeks. The next day, at
about 11.00 a.m. the victim and her husband went to the police station and lodged
the First Information Report (Ext. 1). The Investigating Officer (PW-7) took up
the investigation and filed thecharge-sheet against both the accused for the
above-mentioned offence. After framing the charges, the Sessions Court held the
trial. As mentioned supra, the Trial Court convicted both the accused for the
offence punishable under Section 376(2)(g) of the IPC and the same came to be
confirmed by the High Court.
4. Ld. Counsel for the
appellants, taking us through the material on record, submitted that an
implicit reliance cannot be placed on the uncorroborated testimony of the
victim, who had a strong motive to implicate the appellants falsely in a serious
crime. The victim’s husband has not supported the case of the prosecution. The
story as put forth by the victim bristles with inherent improbabilities and
exaggerations. The case of the prosecution is not supported by the medical evidence
and the entire case of the prosecution is a cooked-up story against the
appellants in order to take revenge against them because of a business rivalry.
Ld. Counsel for the State argued in support of the judgments of the Trial Court
as well as the High Court.
5. It is well settled law
that if the version of the prosecutrix is believed, basic truth in her evidence
is ascertainable and if it is found to be credible and consistent, the same
would form the basis of conviction. Corroboration is not a sine qua non for a conviction in a rape
case. The evidence of a victim of sexual assault stands at par with the
evidence of an injured witness and is entitled to great weight, absence of
corroboration notwithstanding. If the evidence of the victim does not suffer from
any basic infirmity and the “probabilities factor” does not render it unworthy
of credence, as a general rule, there is no reason to insist on corroboration,
except from medical evidence, where, having regard to the circumstances of the
case, medical evidence can be expected to be forthcoming. When a grown up and
married woman gives evidence on oath in Court that she was raped, it is not the
proper judicial approach to disbelieve her outright.
6. In this regard it would be
useful to quote certain observations of this Court in the case of Bharwada BhoginbhaiHirjibhai
vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is observed that:
“10. By
and large these factors are not relevant to India, and the Indian conditions.
Without the fear of making too wide a statement, or of overstating the case, it
can be said that rarely will a girl or a woman in India make false allegations
of sexual assault on account of any such factor as has been just enlisted. The statement
is generally true in the context of the urban as also rural Society. It is also
by and large true in the context of the sophisticated, not so sophisticated,
and unsophisticated society. Only very rarely can one conceivably come across
an exception or two and that too possibly from amongst the urban elites.
Because:
(1) A girl or a woman in the tradition bound non- permissive
Society of India would be extremely reluctant even to admit that any incident
which is likely to reflect on her chastity had ever occurred.
(2) She would be conscious of the danger of being ostracised by
the Society or being looked down by the Society including by her own family
members, relatives, friends and neighbours.
(3) She would have to brave the whole world.
(4) She would face the risk of losing the love and respect of
her own husband and near relatives, and of her matrimonial home and happiness
being shattered.
(5) If she is unmarried, she would apprehend that it would be
difficult to secure an alliance with a suitable match from a respectable or an
acceptable family.
(6) It would almost inevitably and almost invariably result in
mental torture and suffering to herself.
(7) The fear of being taunted by others will always haunt her.
(8) She would feelextremely embarrassed in relating the incident
to others being over powered by a feeling of shame on account of the upbringing
in a tradition bound society where by and large sex is taboo.
(9) The natural inclination would be to avoid giving publicity
to the incident lest the family name and family honour is brought into controversy.
(10) The parents of an unmarried girl as also the husband and
members of the husband's family of a married woman would also more often than
not, want to avoid publicity on account of the fear of social stigma on the
family name and family honour.
(11) The fear of the victim herself being considered to be promiscuous
or in some way responsible for the incident regardless of her innocence.
(12) The reluctance to face interrogation by the investigating
agency, to face the court, to face the cross examination by Counsel for the culprit,
and the risk of being disbelieved, acts as a deterrent.
11. In
view of these factors the victims and their relatives are not too keen to bring
the culprit to books. And when in the face of these factors the crime is
brought to light there is a built-in assurance that the charge is genuine rather
than fabricated. On principle the evidence of a victim of sexual assault stands
on par with evidence of an injured witness. Just as a witness who has sustained an
injury (which is not shown or believed to be self inflicted) is the best
witness in the sense that he is least likely to exculpate the real offender,
the evidence of a victim of a sex-offence is entitled to great weight, absence
of corroboration notwithstanding. And while corroboration in the form of eye witness account of an
independent witness may often be forthcoming in physical assault cases, suchevidence
cannot be expected in sex offences, having regard to the very nature of the
offence.
It would therefore be adding insult to injury to insist on
corroboration drawing inspiration from the rules devised by the courts in the
Western World (Obeisance to which has perhaps become a habit presumably on
account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim
does not suffer from any basic infirmity, and the “probabilities factors” does
not render it unworthy of credence, as a general rule, there is no reason to
insist on corroboration except from the medical evidence, where, having regard
to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification:
Corroboration may be insisted upon when a woman having attained majority is found
in a compromising position and there is a likelihood of her having levelled
such an accusation on account of the instinct of self-preservation. Or when the
'probabilities factor' is found to be out of tune”.
(emphasis supplied)
7. In Sadashiv Ramrao Hadbe
v. State of Maharashtra, [(2006) 10 SCC 92], this Court reiterated that the sole testimony
of the prosecutrix could be relied upon if it inspires the confidence of the
Court:
“9. It
is true that in a rape case the accused could be convicted on the sole
testimony of the prosecutrix, if it is capable of inspiring confidence in the
mind of the court. If the version given bythe prosecutrix is unsupported by any
medical evidence or the whole surrounding circumstances are highly improbable
and belie the case set up by the prosecutrix, the court shall not act on the solitary
evidence of the prosecutrix. The courts shall be extremely careful in accepting
the sole testimony of the prosecutrix when the entire case is improbable and
unlikely to happen.”
8. However, as is also
evident from the observations above, such reliance may be placed only if the
testimony of the prosecutrix appears to be worthy of credence. In this regard,
it is also relevant to note the following observations of this Court in the
case of Raju
v. State of Madhya Pradesh, [(2008)
15 SCC 133], which read thus:
“10. 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 par 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 cancause 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.”
Having due regard in our mind to the above-mentioned settled
position in law, we have assessed the entire material on record meticulously.
9. The victim/prosecutrix
(PW-1) has deposed that on the night of the incident, at about 7:00 p.m., the
accused persons forcibly lifted her while she was going alone to her house from
her hotel, her husband having left already. Though she wanted to shout, she
could not do so since the accused showed a knife and threatened her with dire
consequences. After this, both the accused persons committed rape on her.
According to her, her saya (petticoat) (MO No. II) was stained with semen. The
police had seized her saree, saya, and blouse, and she was examinedby the doctor
at the instance of the police. Although in the examination-in-chief she has
deposed about the exact names of each of the accused, and the details of the
incident, her admissions in the cross-examination raise several doubts as to the
veracity of her version as found in the examination-in-chief.
In her cross-examination, she admitted that both the accused persons
have a hotel near her hotel; she is the first wife of her husband; her sister
is the second wife of her husband and is also residing with her husband; the
spot of the incident is in between her hotel and Nuadihi Chowk; the road
bifurcates at Nuadihi Chowk and buses usually turn at that chowk; there are
shops on that chowk; her hotel is towards the west of that road; the hotel of
one Purna Bira is near her hotel; the house of Purna Bira is close to the hotel
where he resides with his family members; Nuadihi U.P. School is near that
chowk; there are 4 to 5 residential houses near that U.P. School; and teachers
also live on the school campus. The scene of offence is a corner place in
between the U.P. School and residential houses situated near the school. She
further deposed that there are village roads near the scene of offence which
connect to themain road. There are cultivable lands between the village road and
the spot. The spot is encircled by cultivable lands. There are small stones
near the spot. The spot is not plain, but it is uneven. She further admitted in
the cross-examination that she did not meet anybody while going to her house
after the alleged incident, and that none of the neighbours came to her house
when she disclosed the matter to her husband. Her husband, her brother-in-law,
one servant boy and she herself work in the hotel. One Mr. Dasarathi Sahu is a
partner for this hotel business. Vehicles ply throughout the day and night in front
of her hotel. In her hotel, food is usually served till 10.00 p.m. Curiously,
she admitted that she could not say if the occurrence took place on 24.03.1990.
On the day of the occurrence, there was a weekly market in the village and in
that market, business is usually carried on from morning till 10.00 p.m.
10. From the aforementioned
admissions of the victim, it is clear that the scene of offence is a busy area
wherein a number of buses ply, many shops and residential houses exist, and aschool
is also situated. The scene of offence is near a circle wherein buses pass
through frequently. The business in that area generally ends only at 10.00
p.m., which means that the area in question is a very busy area till 10.00 p.m.
According to the prosecution, both the accused persons lifted the victim forcibly
from the road, sometime between 7:00 and 8:00 p.m. and took her from that busy
area and committed the offence of rape on her. Such a story put forth by the
prosecution which prima facie appears to be improbable needs to be proved by
the prosecution beyond reasonable doubt. Though both the Courts concurrently
concluded against the accused persons, we, in order to satisfy our conscience,
have gone through the evidence on record.
11. In her cross-examination,
it was also admitted by the victim that there is a Village Forest Protection
Committee at village Sadhubahal, and that people sometimes used to sell firewood
by removing the same from the forest and the adjoining forests. She denied
knowing that the Appellant No.1, Dolagobinda Pradhan, was the President of the
Village ForestProtection Committee, and that the Committee had asked her husband
to not remove firewood from the forest. However, she admitted that there was a
hot exchange of words between her husband and the accused Dolagobinda, and that
her husband was assaulted by the people of village Sadhubahal, wherein Dolagobinda
also gave him blows. The occurrence of the said assault had taken place in the
morning on the date of occurrence of rape. Again, on the very day in the
evening, the people of Sadhubahal created a disturbance at the hotel of the victim/prosecutrix,
demanding shifting of her hotel from that place. According to the victim, the
rape took place sometime after that disturbance. Additionally, the prosecutrix
deposed that she, along with her husband, reported to the police about the
assault on her husband. Dolagobinda and the others involved did not go to the
police station when called. She also stated that she, as well as her husband,
was called to the police station two days after the occurrence. In view of such
admissions of the victim, the submission made on behalf of the accused that
they have been falsely implicated in order to take revenge against them appears
to be well founded. It is the caseof the defence that the prosecutrix and her
husband used to indulge in cutting of firewood from the forest and selling the same
in the market, due to which the villagers, as well as the President of the
Forest Protection Committee (Appellant No.1), were aggrieved, and a tussle had
taken place in that regard.
12. Curiously, the victim has
not sustained any injury except some bruises on her cheeks. Her clothes were
not even soiled with mud. In her cross-examination, she admitted that there was
a tussle at the time of the alleged incident, and that she tried to save
herself. She also stated that both the accused persons physically lifted her
from the spot, and her bangles had been broken, by which she had sustained
bleeding injuries on her hands. Furthermore, she said that she also sustained marks
of violence on her hands. She did not sustain any injury on her knee, breasts
and buttocks. She stated that she has no acquaintance with the accused persons
and she did not have any kind of dealings with them. She further admitted that
she had worn eight bangles on each of her hands and all her bangles on the
right hand were broken and only one bangle ofthe left hand remained unbroken,
and that all the bangles were broken at the spot of offence.
13. Although the prosecutrix
admitted that she sustained bleeding injuries on her hand because of the
shattering of eight bangles worn by her on her right hand and seven bangles on her
left hand, and had marks of violence present on her body, the medical records
do not support the said version. The report of the medical examination is at
Ext. 4. It is clearly mentioned in the said report that there is a bruise mark
measuring half a centimeter, which can be caused by a hard and sharp object, on
the right cheek. No other mark of injury was seen anywhere on the body. There
is no injury on the breasts, there is no internal injury on any part of the
body and no injury was found on the vulva, pelvis and vagina. There are no
signs of injury on the thighs as well. Except for one bruise on cheek which measures
half a centimeter, no other injury was found on the victim and the same is
clear from the medical report (Ext. 4).
14. Thus, medical evidence does
not support the case of the prosecution. The Doctor (PW-4), who examined the
victim,however, has deposed that there were four bruises, each measuring half a
centimeter on the left cheek and four bruises each measuring half a centimeter
on the right cheek. The Doctor opined that the injuries are simple in nature
and might have been caused by a hard and sharp object. The Doctor did not find
any other injury on the body of the victim. There was no injury on the back
side of the body of the victim. Although the Doctor has deposed in the
examination-in-chief that the injuries could have been caused by human bite, he
has admitted in his cross-examination that he has not mentioned the shape of
the injuries in his report. He further admitted that a bruise can be caused by
a blunt object like stone, wood, fist blow etc. and can also be caused by a fall.
While a bruise is always accompanied by swelling, an abrasion caused by a human
bite is elliptical or circular in form, and is represented by separated marks
corresponding to the teeth of the upper and lower jaw. If we were to believe
that the abrasion was caused by a bite, the same should have been elliptical or
circular in form.
The said material is not forthcoming from the records.Moreover,
the medical report (Ext. 4) is contrary to the version of the Doctor with
regard to the number of injuries as well. The medical report merely states that
the victim has sustained a bruise mark measuring half a centimeter in size, which
means that only one bruise was found on the right cheek of the victim. However,
during his deposition the Doctor has exaggerated to say that the victim has
sustained four bruises on each of her cheeks. In any event, merely on the basis
of a bruise or bruises on the cheeks, which can be caused even by a fall or by
an assault with a hard substance, it cannot be said that the victim has
suffered sexual assault.
15. The sample of semen and
saliva including the petticoat (saya) of the victim were sent to the Forensic
Science Laboratory (for short ‘the FSL’) for examination. The FSL’s report
disclosed that semen was not detected on the saya (petticoat). All other
exhibits collected and sent to the FSL, i.e. the samples of saliva and semen
collected for testing purposes from the two accused and the prosecutrix’s
husband, were unsuitable for serological examination. Since the saya(petticoat)
did not contain any seminal stain, it would be hard for the Court to believe
that sexual assault had taken place on the victim, more particularly when the
other material does not support the case of the prosecution, and when it is not
the case of the prosecution that the victim has changed her dress or that she
had washed her clothes, etc. Per contra, the evidence on record discloses that the victim stayed in her
house all night and thereafter, leisurely at 11.00 a.m. the next day, she went
to the police station and lodged the FIR, after which she was taken for medical
examination. If the offence of rape had really taken place, and her saya was in
fact stained with semen, the same would have been depicted in the FSL report.
16. It was also admitted by the
prosecutrix in her cross-examination that she had not clearly seen the face of anyone
at the time of occurrence and she could not recognize the persons committing
the rape by face, but she could recognize them hearing their voice. If we were
to believe that the victim did not have any acquaintance with any of the accused
persons, and that she could not see and recognize thefaces of any of the
accused persons at the time of occurrence, it would appear improbable for her
to recognize the accused merely by hearing their voice. There cannot be any
dispute that when the persons are known to each other, a person can certainly
identify the other person by voice. However, the question of identification by
voice has to be dealt with by the Court carefully. In Kirpal Singh vs.
State of U.P.,
[AIR 1965 SC 712], this Court, while dealing with the question of voice identification,
observed as follows:
“4…It is true that the evidence about the identification of
a person by the timbre of his voice depending upon subtle variations in the overtones
when the person recognizing is not familiar with the person recognized may be somewhat
risky in a criminal trial. But the appellant was intimately known to Rakkha Singh
and for more than a fortnight before the date of the offence he had met the
appellant on several occasions in connection with the dispute about the
sugarcane crop. Rakkha Singh had heard the appellant and his brother calling
Karam Singh to come out of the hut and had also heard the appellant, as a
prelude to the shooting referring to the dispute about sugarcane.” (emphasis
supplied)In light of the above observations, the Court found that the voice
identification of the accused by a witness, whose credibility had otherwise
been accepted by the courts below, was not improbable. This principle was also
applied by this Court in Mohan Singh vs. State of Punjab, [AIR 2011 SC 3534].
In this case, voice identification was accepted, inter alia, on the ground that there
was no evidence adduced to challenge the evidence of the witness that he had
acquaintance with the accused and that he knew the voice of the accused. The
Court also adverted to the decision of this Court in Inspector of Police vs.
Palanisamy, [(2008)
14 SCC 495], wherein it was held that though identification from voice is
possible, no evidence had been adduced to show that the witnesses were closely acquainted
with the accused to enable voice identification and that too from very short
replies.
Thus, from the above cases we may cull out the principle that
identification from the voice of the accused may be possible if there is
evidence to show that the witness was sufficiently acquainted with the accused
in order to recognize him or her by voice.In the matter on hand, the
prosecutrix herself has admitted that there was no acquaintance between the
victim and accused. In such a scenario, it would be difficult for us to accept
the version of the victim that she recognized the accused from their voice. We
reiterate the observations in Kirpal Singh (supra) that the identification of a person by the timbre of his
voice is risky in a criminal trial, when the identifying person is not familiar
enough with the accused to be able to differentiate between subtle variations
in the overtones. In the view of the lack of acquaintance between the
prosecutrix and the accused, it will not be safe for us to accept her version
regarding the identity of the accused, given the absence of a Test Identification
Parade.
17. The crown to these
suspicious circumstances is that PW-3, the prosecutrix’s husband, was declared
hostile. In his examination-in-chief, he deposed that the victim reached their house
between 7-8 p.m., crying. He refused to speak about what she told him, out of
shame. In his cross-examination by the prosecution, he denied being told by his
wife that the accused forcibly lifted and raped her. He only admitted beingtold
that the accused dragged her on the way. Thus, he maintained that his wife had
not narrated the rape incident to him, even upon a specific query by the public
prosecutor in this regard.
He also admitted to the occurrence of the tussle over the allegations
of theft of forest produce levelled against him by the accused and around forty
other persons, all of whom assaulted him on the morning of the alleged incident
of rape and asked him to shift his hotel away from its current location, which
was near the hotel operated by the accused. He specified that he was not
deposing falsely out of fear.
During his cross-examination on behalf of the accused, he also
admitted that a dispute occurred at his hotel on the day before the date of the
incident, in the absence of his wife. He reiterated that on the day of the incident,
around 50 persons had created a disturbance at his hotel in the morning, though
he could not specify who hit him. He even went on to say that his wife had sent
someone to the police station after this assault, whereupon the police came to
his hotel, and evencalled everyone to the police station, though the accused
did not oblige.
With regard to the rape incident, he deposed that he accompanied
his wife to the police station on Sunday morning, i.e. the day following the
day of the alleged incident, reaching around 10:00 a.m. and returning around
05:00 p.m. It may be noted that the prosecutrix herself deposed in her cross-examination
that they returned around 1.30 to 2:00 p.m.
He claimed that having remained outside the police station while
his wife was examined, he had no knowledge of what transpired inside. Finally,
he admitted to not telling anyone in the village about the rape incident or the
visit to the police station.
18. According to the
prosecution, the incident has taken place at about 7:00 p.m. to 8:00 p.m. on
24.3.1990. As per the admissions of both the prosecutrix and her husband, PW-3,
in the morning as well as in the evening of the date of incident, a number of
people had gathered and created disturbance in the hotel of the victim and
PW-3, and assaulted him. It seems thatthe running of the hotel by the victim
and her husband was not palatable to the accused and forty other persons in the
village.
Added to this, PW-3 was stated to have been involved in the theft
of forest produce and in that regard the villagers had a grievance against him.
19. As mentioned supra, the
spot where the alleged rape had been committed and the spot from where the
victim was forcibly physically lifted by the accused were not deserted places, inasmuch
as in the normal course of a day, numerous passersby and vehicles ply there. It
is unlikely that no one had noticed the victim being lifted and subjected to
forcible sexual intercourse. Though the victim narrated the entire incident to her
husband (PW3), he has denied before the Court that the victim informed him
about the commission of forcible sexual assault on her. Firstly, the husband
(PW-3) refutes that the victim told him that she was lifted from the spot and
subjected to forcible sexual intercourse. Secondly, PW-3 has deposed that the
victim told him that the appellants had dragged the victim on the way. And
finally, he has also denied stating to theInvestigating Officer that the victim
told him that while she was returning home from the hotel, the appellants have
committed rape on her. The deposition of PW-3 as mentioned supra, practically
does not support the version of the victim. There is no reason as to why PW-3,
being the husband of the victim, would contradict her version. Moreover, the
victim has deposed that she did not see the face of anyone clearly, at the time
of occurrence and that she did not recognize the faces of the persons
committing rape on her. As we have observed supra, in the instant case, the
contention of voice recognition cannot be accepted. That apart, though PW-3 was
informed by the victim about the incident immediately afterwards, which is the natural
conduct of a victim, strangely he was never examined by the police, as per his
own admission, though he was standing outside the Police Station all throughout
the recording of his wife’s statement. The victim alone was taken inside the Police
Station for reasons best known to the prosecution. In that context, the contentions
of the defence that there is a likelihood of creating a false case against the
accused assume importance.
20. The evidence of the
victim/prosecutrix and her husband (PW-3) are unreliable and untrustworthy
inasmuch as they are not credible witnesses. Their evidence bristles with contradictions
and is full of improbabilities. We cannot resist placing on record that the
prosecution has tried to rope in the appellants merely on assumptions, surmises
and conjectures.
The story of the prosecution is built on the materials placed on
record, which seems to be neither the truth, nor wholly the truth. The findings
of the courts below, though concurrent, do not merit acceptance or approval in
our hands with regard to the glaring infirmities and illegalities vitiating
them, and the patent errors apparent on the face of record resulting in serious
and grave miscarriage of justice to the appellants.
21. In the matter on hand, on
going through the entire material on record, we are of the clear opinion that
the prosecutrix apparently had motive to seek revenge against the accused
persons. The testimony of the victim in the peculiar facts and circumstances of
this case needs to be discarded, since her testimony is a result of seeking
revenge against theaccused and as her evidence is not free from blemish. The prosecutrix’s
evidence with regard to identification of the accused was unworthy of credence
as she has deposed that she could not identify the faces of any of the accused
persons, coupled with the factum that no spermatozoa was found evidencing
recent sexual intercourse, as also there was no injury on her body, except of
course, a bruise on her cheek measuring half a centimeter. No doubt, solely
relying on the version of the victim, a conviction can be recorded, but such version
should be reliable. If really the victim had deposed about the incident to her
husband immediately after the incident, there is no reason for PW-3 being the
husband of the victim, to not depose about the same before the Court. The testimony
of PW-3 contradicts the story laid down by the informant. At the cost of
repetition, it can be observed that firstly, PW-3 denies specifically that the
informant told him that she was lifted from the spot and subjected to forcible
sexual intercourse. Secondly, it is specified by PW-3 that the informant merely
told him that the accused were dragging her.
Finally, he also denies having stated to the Investigation
Officerthat the victim told him that while she was returning from hotel, the
accused committed rape on her. The Courts have accepted the voluntary statement
of the victim while discarding various other probabilities. The alleged scene
of offence could hardly be described as a deserted place or a secluded place
for the commission of such a ghastly crime. The spot where the alleged rape was
committed is practically near the market, and near the main road wherein
vehicles frequently ply and more particularly when the day of the incident was
a market day which used to be busy up to 10.00 p.m. All the attending glaring
inconsistencies and improbabilities as also the other evidence on record which
demolishes the version of the victim are conveniently ignored by the Trial
Court and the High Court.
The Police have failed to recover the napkin which was used for gagging
the mouth of the victim. So also the knife allegedly used by the accused Akshya
Pradhan for threatening the victim was not recovered. The knife would have
contained the fingerprints of the accused if it was really used by the accused.
A careful reading of the evidence of the prosecutrix and her husband
(PW-3) therefore leads us to the conclusion that thecase as made out by the
prosecution appears to be concocted. It cannot be said that the offence of rape
has been proved beyond reasonable doubt.
22. In our considered opinion,
the Trial Court as well as the High Court have convicted the appellants without
considering the aforementioned factors in their proper perspective. The testimony
of the victim is full of inconsistencies and does not find support from any
other evidence whatsoever. Moreover, the evidence of the informant/victim is
inconsistent and self-destructive at different places. It is noticeable that
the medical record and the Doctor’s evidence do not specify whether there were
any signs of forcible sexual intercourse. It seems that the First Information
Report was lodged with false allegations to extract revenge from the
appellants, who had uncovered the theft of forest produce by the informant and
her husband. The High Court has, in our considered opinion, brushed aside the
various inconsistencies pointed out by us only on the ground that the victim
could not have deposed falsely before the Court. The High Court has proceeded
on thebasis of assumptions, conjectures and surmises, inasmuch as such
assumptions are not corroborated by any reliable evidence. The medical evidence
does not support the case of the prosecution relating to the offence of rape.
Having regard to the totality of the material on record and on facts and circumstances
of this case, it is not possible for this Court to agree with the concurrent
conclusions reached by the courts below. At best, it may be said that the
accused have committed the offence of hurt, for which they have already
undergone a sufficient duration of imprisonment, inasmuch as they have been
stated to have undergone two years of imprisonment. Accordingly, the appeal is
allowed. The judgments of the Trial Court as well as the High Court are set aside.
The appellants are acquitted of the charges levelled against them. They should be
released forthwith, if they are not required in any other case.