Under challenge in the instant appeal is the judgment and order dated 20.12.2010, passed by Addl. Sessions Judge /Fast Track, Court Room No.13, Sultanpur in S.T.No.101 of 2008 arising out of case No. 92 of 2008 , under sections 363/366/506 I.P.C And 3 (1)(12) and 3 (2) 5 SC/ST Act,P.S. Motinagar, District Sultanpur where by the appellant was tried and convicted under sections 366, 376 and 506 I.P.C., however, he was acquitted of the charges under Sections 363 I.P.C, Sections 3 (1) (12) and 3(2) (5) of the SC/ST Act. For the offence under Section 366 I.P.C he was sentenced to under go rigorous imprisonment for four years and also with fine of Rs.1000/ with default stipulation of one month's additional imprisonment, for the offence under section 376 I.P.C., he was sentenced to under go rigorous imprisonment for a period of 7 years and also with fine of Rs.1500/ with default stipulation of two month's additional impriosonment for the offence under section 506 I.P.C, he was sentenced to under go rigorous imprisonment for a period of six months. All the sentences were directed to run concurrently.
In brief the case of the prosecution was that on 26.02.2008 at about 9.00 a.m., the victim who was student of B.A Ist year, had gone to attend her College (Smt.Kalawati Girls Degree College Shivmurti Nagar Shahpur Lapta). When she did not come back till evening, then complainant searched her. He continued his search for about two days After his efforts failed, he gave information of this incident to the police. Police instead of registering the case asked him to continue his search so he continued his search. On 1.03.2008 at about 3.00 p.m. a call was received on the P.C.O of the village of the complainant which was made from a mobile phone and the P.C.O owner was asked to call the family members of the victim.On this information of the P.C.O owner the complainant and his brother went to P.C.O and after some time again a call was received from the said mobile. The victim desperately told that she has been forcibly kidnapped by some unknown persons in an Indica Car, after administering something to her which made her unconscious, therefore, she was not aware as to -2- what happened thereafter.She found herself closed in a room. A mobile phone was lying there and she expressed that her life is in danger and asked for immediate help. Even after this information, F.I.R of this case was lodged on 5.03.2008 under Section 364 I.P.C at 9.15 a.m. as no information constituting any other offence was given by the victim on the mobile phone. During investigation, on 28.3.2008 the victim was recovered near Civil Court Crossing , District Sultanpur at about 4.55 p.m. and her statement was recorded. After completing the investigation chargesheet was filed against the accused appellant. The case of the defence was that the accused appellant has been falsely implicated in this case as the victim was major and she had gone out of her own free will with the appellant and they have solemnized marriage in Arya Samaj Mandir at Kanpur and also moved application before the higher authorities along with certificate of marriage stating there in that she is major and the accused appellant has been falsely implicated.
In order to prove its case the prosecution has examined P.W.-1 Ram Charan complainant,P.W.-2 Ram Karan, P.W.-3 Victim,P.W-4 H.C Vijay Kumar Singh,P.W-5 Dr. Jai Shree Gupta who conducted medical examination of the victim,P.W.-6 Pulkit Pandey, P.C.O owner, P.W.-7 S.I.Jamuna Prasad Sharma and P.W.-8constable Sunder Lal who has proved the recovery memo.
No evidence in defence on behalf of the appellant was produced.
In the medical examination of the victim, the doctor found axillary and pubic hair to be grown up and coarse breasts were well developed. No mark of injury on any part of the body was seen. Hymen was old torn and healed . No bleeding was found. Vaginal smear slides were prepared and sent for examination. She was also referred for her X-ray.No opinion regarding rape was given and she was found to be above 18 years and was reported to be habitual to sexual intercourse.
The trial court after appreciating the evidence on record has convicted the appellant,as above hence, this appeal.
Submission of the learned counsel for appellant is that the victim was major and her date of birth given in her school certificate was recorded as 22.2.1989.She had gone out of her own free will with the appellant and solemnized marriage with him and remained with him for a period of about one month and at no point of time she raised alarm or called for the help of any person for her rescue.This conduct of the victim shows that she was a consenting party. It has been further submitted that the evidence of the victim does not fall within -3- the purview of wholly reliable. It has further been submitted that trial court had wrongly drawn presumption under Section 114-A of the Indian Evidence Act and has wrongly convicted the appellant.
Learned A.G.A submitted that the judgment of the trial court is well reasoned and the trial court has rightly convicted the appellant.
The first point to be considered in this case is the age of the victim. In the FIR the age of the victim was not mentioned. It was only mentioned that she was a student of B.A Ist year but in her cross examination the victim has admitted that her date of birth is 22.2.1989 and it was mentioned in her college Identity card. In view of the aforesaid, date of birth of the victim ,the age of the victim on the date of incident, comes about 19 years. So she was major. P.W.-1 complainant is not a witness of any fact of enticing away the victim P.W.1 and P.W 2 have only received phone calls on 1.3.2008. these phone calls are alleged to have been received on 1.3.2008 but inspite of that no effort was made to lodge the F.I.R. on the same day. The F.I.R was lodged on 5.03,2008 under Section 364 I.P.C and not under Section 376 I.P.C. The complainant side was expected to lodge the F.I.R immediately after receiving the phone call but the F.I.R was lodged after four days and no satisfactory explanation for such delay has been furnished during trial. In this case there is unexplained delay in lodging the F.I.R. So it was the duty of the trial court to scrutinize the prosecution evidence with utmost care and caution.
Law is settled on the point that the evidence of the victim of an offence of rape is of great importance. If the evidence of the victim is found to be wholly reliable then conviction can be recorded on her sole testimony and no corroboration in material particulars shall be required. The Hon'ble apex court in the case of State of Rajasthan Vs. Babu Meena reported in (2013) 4 SCC 206 has observed in para 9 as under:
"We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court -4- has no option than to acquit the accused."
The Hon'ble apex court in a recent judgment in the case of Hem Raj, son of Moti Ram Vs. State of Haryana reported in JT 2014 (2) SC 399 has observed, "In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however,if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. [State of Maharashtra v Chandraprakash Kewalchand Jain [JT 1990 (1) SC 61 : 1990 (1) SCC 550]]. Such weight is given to the prosecutrix's evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it."
Now the point to be considered is whether the evidence of the victim falls within the purview of wholly reliable or not and whether the presumption under Section114-A of the Evidence Act could have been drawn against the accused appellant or not. Section 114 -A reads as under:
114-A "Presumotion as to absence of consent in certain prosecution for rape:-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercouse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presue that she did not consent."
A plain reading of Section114-A makes it clear that it applies to the cases of rape where the prosecution was for offences under clauses a,b,c,d,e,g of sub clause (2) of Section 376 I.P.C and if in those cases where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, only then the court shall presume that she did not consent .In this case the appellant was prosecuted for the offence under Section 376 (1) and not for 376 (2) I.P.C.and not for any of the offences mentioned in Section 114-A of the Indian Evidence Act.
Therefore, the necessary condition for the application of Section114-A of the Evidence Act that the prosecution for the offence of rape mentioned in the section was not in existence. Since the prosecution was not for any of the offences mentioned in the the aforesaid section, therefore, the presumption of absence of consent of the victim could not have been drawn. In absence of such presumption it was the burden of the prosecution to prove that sexual intercourse had taken place without the consent of the victim. Victim in her statement before the court has stated that she was forcibly dragged in an Indica Car, she raised alarm but something was administered on her due to which she became unconscious and when she regained her senses then she found herself closed in a room and one man was sitting in the said room. She inquired about the purpose for which she has been brought there then he disclosed his name as (Devendra appellant) and threatened her to act as per his wishes. In his absence, he used to leave one lady to keep watch on her. On the said date, he committed rape with her. She has stated that she was taken to Gujrat for 15-20 days and she came to know that it was Gujrat only when it was told by the appellant. She was brought from Gujrat to Sultanpur and told her that she has been kidnapped for solemnizing marriage with her. The appellant had taken her to the gate of Civil Court Sultanpur from where she was recovered by the police. During cross examination attention of this witness was drawn towards the contradictory statement which was given by her during investigation to the I.O. During investigation the victim has stated that she was taken to Kanpur but in the examination in chief she has not uttered any word regarding her visit to Kanpur but in the cross examination she has stated at one place that she came from Kanpur to Sultanpur. She has admitted during cross examination that she was taken to Kanpur and marriage in Arya Samaj Mandir was solemnized with her by the appellant. Therefore, she has deliberately not stated that she was taken to Kanpur in her examination in chief, simply to avoid the fact of marriage. She has also stated that she used to go to the college with her 2-3 friends and has also stated that she used to go to college on cycle but on the date of incident she had gone to the college alone and had not gone on cycle. No reason could be furnished by her as to why she had not gone to college along with her friends on that day. Further regarding cycle, she has stated that the cycle was lying punctured for the last two days. Her going alone to the college leaving cycle at her house shows that she, with a plan had done so. In the presence of her friends she could not have -6- executed her plan. In case she would have taken cycle with her then she had to leave her cycle at the place where from she went with the accused. There is no dispute to the fact situation that the victim was major and had gone with the appellant to Kanpur and Gujrat. Admittedly at no point of time, any effort was made by her to raise any alarm for her rescue. Further statement made by this witness during her cross examination gives rise to the inference that she is suppressing the truth. She has stated that by which mode of transport she travelled to Gujrat is not known to her. She has further stated that she was kept un-conscious for a period of one month and whenever she regained her senses, she was made unconscious again and she did not know what happened to her. She has admitted that when she came near Civil Court at Sultanpur she was wearing Sari which was provided to her by the appellant. It is unbelievable that a person who has travelled from Sultanpur to Gujrat is not aware about the mode of transport by which she has travelled. It is also not believable that any person can be transported in unconscious condition by any mode of transport and could cover such a long distance without being noticed. At the time of recovery she was near the crossing of Civil Court and trial court could have taken notice of the fact that generally Civil Court crossing, remains very crowded but even then no effort was made by the victim to call for any help. The trial court has committed mistake in drawing presumption about the absence of consent of victim under section114-A of the Indian Evidence Act and because of the said presumption has over looked other circumstances which show that the evidence of the victim does not fall within the category of wholly reliable and she was a consenting party. This mistake of the trial court renders its judgment and order unsustainable under law.
Accordingly the appeal deserves to be allowed and is hereby allowed. Appellant is hereby acquitted of the charges levelled against him. The appellant be set at liberty. He is on bail. His bail is cancelled and sureties discharged.
Office is directed to send back the lower court record and also to certify this judgment to the trial court.
R.P.
Date of order 17.7.2014