1. This Criminal Appeal under section 374(2) Code of Criminal Procedure (hereinafter referred to as 'CrPC') has been preferred by the sole appellant Sandeep alias Kothari Upadhyay against the judgement and order dated 30.10.2013 passed by Sri Surendra Prasad Yadav, Additional Sessions Judge, Court No.5, Gonda, in Sessions Trial No.180 of 2013 having Case Crime No.389 of 2012, under Sections 363, 366, 376, 506 of Indian Penal Code (in short 'IPC'), Police Station Kotwali Dehat, District Gonda, whereby the present appellant has been convicted under Sections 363, 366, 376, 506 (2) IPC and sentenced with rigorous imprisonment of three years and fine of Rs.3000/- with default stipulation under section 363 IPC, five years and fine of Rs.5000/- with default stipulation under section 366 IPC, ten years and fine of Rs.10,000/- with default stipulation under section 376 IPC and two years under section 506(2) IPC.
2. The briefly stated the facts necessary for deciding the present appeal are that prosecutrix, the daughter of Smt. Manju Yadav (informant), alleged to be 17 years of age was enticed away by appellant Sandeep alias Kothari alongwith co-accused Alok Shukla alias Vedi on 06.08.2012 at about 3.00 p.m. to Railway Station, Gonda with promise extended by Sandeep alias Kothari Upadhyay to marry with her. When the prosecutrix did not return home, the parents of the prosecutrix started her search and reached Railway Station, Gonda where they saw the appellant and co-accused Alok Shukla standing with her daughter. As soon as, the appellant and co-accused Alok Shukla saw the family members of the prosecutrix, they managed their escape from there leaving the prosecutrix alone. Thereafter, the parents of the prosecutrix took her back to home. On return, the prosecutrix told her mother that the accused persons were intending to take her to Delhi. Both the accused persons threatened the parents of prosecutrix that if they reported the matter to the police, they shall be killed. On account of fear, the First Information Report (for Short 'FIR') could not be lodged on the same day and thereafter when the relatives of informant Smt. Manju Yadav came on 09.08.2012, she went to the Police Station Kotwali Dehat, District Gonda with her relatives and gave a written report (Ex. Ka-1) in the police station after getting it scribed with an unknown person.
3. On the basis of said written report, a case was registered after entering the same in the General Diary of police station at Sl.No.40 at 19.10 hours (Ex. Ka-10). FIR (Ex. Ka-9) was also prepared by Constable Har Govind (PW 8). The investigation of the case was entrusted to SI Ram Gyan Singh (PW 6) who called the prosecutrix and her mother at police station on 10.08.2012 and tried to record the statement of the prosecutrix but she declined to give any statement on that day.
4. Thereafter, she was sent for medical examination along with her mother to District Women Hospital, Gonda, where Dr. Shivali Tripathi (PW 5) examined the prosecutrix on 10.08.2012 at 11.00 a.m. On external examination, she found that prosecutrix has average body built, height 149 cm, weight 40 kg, teeth 14/14, breasts in developing stage and auxiliary hairs were present. A linear abrasion was also seen on the cheek 6 cm from the right angle of mouth, may be caused by some sharp object. On internal examination, no mark of external injury was found on private parts of the prosecutrix, hymen found torn and healed, no bleeding found from the private parts and two fingers could enter into vagina easily. The medical examination report (Ex. Ka-4) was prepared by Dr.Shivali Tripathi.
5. Doctor prepared two slides of vaginal smear and sent to Pathological Department of District Hospital, Gonda for determination of the presence of dead or live spermatozoa. The doctor also referred the prosecutrix to Senior Radiologist, District Hospital, Gonda for X-ray of right elbow and right wrist for determination of her age.
6. Supplementary medical examination report (Ex. Ka-5) was also prepared by Dr. Shivali Tripathi on the basis of pathological and X-ray reports, wherein on the basis of physical examination, internal examination of prosecutrix and pathological examination reports, she opined that no definite opinion could be given about commission of rape. So far as the age of the prosecutrix is concerned, Dr.Shivali Tripathi on the basis of X-ray report, wherein both the epiphysis were reported to be fused, found that the prosecutrix seems to be above 18 years of age. However, the doctor advised to consult the concerned radiologist for definite opinion about the age.
7. After recording the statement of prosecutrix on 13.08.2012 by the investigating officer, she was handed over to her parents by executing a memo (Ex. Ka-2). The appellant Sandeep alias Kothari Upadhyay was arrested on 14.08.2012 at about 5.30 a.m.
8. The prosecutrix was also produced before the learned Magistrate for recording her statement under Section 164 CrPC on 14.08.2012. Her statement (Ex. Ka-3) was recorded by the learned Magistrate on 14.08.20125. She stated before learned Magistrate that she is intermediate passed and took admission in B.A. Part-I. On 06.08.2012 at about 3.00 p.m. she was coming back to her home along with her brother Amit from the house of her Mausi (mother's sister). Accused Sandeep and Alok met her in the way. Sandeep and Alok after beating her brother managed him to escape from the spot and thereafter gagged her mouth with cloth and covered her face with Angauchha put her on motorcycle forcibly and taken away to some unknown destination. The prosecutrix travelled on motorcycle about one hour. She was sitting in the middle and the motorcycle was driven by Alok. Nobody was present on the place of occurrence. They kept her in a closed room and then both of them committed rape upon her. Thereafter, they took her to Railway Station , Gonda and left her alone at about 9.30 p.m. She was kept about an hour in that room and thereafter an hour was taken to reach the Railway Station from that room. She categorically stated that she does not want to say anything more.
9. After recording the statement of prosecutrix under Section 164 CrPC, on 16.08.2012, the case was converted under Section 376 IPC.
10. The Investigating Officer collected the medical examination reports, X-ray report, pathology reports and supplementary reports relating to prosecutrix. He also recorded the statement of witnesses under section 161 CrPC and prepared the site plan (Ex. Ka-6). He submitted the charge-sheet (Ex. Ka-7) against the appellant and co-accused Alok Shukla alias Vedi under Sections 363, 366, 376, 506 IPC. Thereafter charges were framed against accused persons including appellant under Sections 363, 366, 376D, 506 IPC. The appellant and co-accused Alok Shukla denied the charges framed against them and claimed trial.
11. To substantiate the charges levelled against the appellant and co-accused Alok Shukla, the prosecution examined on oath Smt. Manju Yadav (PW1), the mother of the prosecutrix; Mangal Prasad (PW2), the father of the prosecutrix; the prosecutrix (PW3), Amit Kumar Yadav (PW4), the brother of the prosecutrix; Dr.Shivali Tripathi (PW 5), who conducted the medical examination of the prosecutrix and gave her report and supplementary medical examination report, SI Ram Gyan Singh (PW6), the Investigating Officer of this case, Dr. R.C. Verma, Senior Radiologist (PW 7), who took the X-ray and submitted report and Constable Har Govind (PW8), who registered the case in the General Diary and prepared the FIR on the basis of written report.
12. The incriminating circumstances appearing in prosecution evidence against the accused person were put to them, which they denied. The defence taken by the appellant at the stage of 313 Cr.P.C ,was that earlier to this incident, the prosecutrix had also left the house alone. He has been falsely implicated in this case as the family members of the prosecutrix wanted to ruin the career of the appellant due to enmity. He neither enticed away the prosecutrix nor committed rape upon her. No defence evidence has been adduced by the accused persons.
13. After appreciating the evidence and hearing the parties, the Trial Court convicted and sentenced the appellant as mentioned herein above, but acquitted the co-accused Alok Shukla on the ground that though his name was found place in the FIR and statement under section 164 Cr.P.C., but none of the witnesses of fact including prosecutrix involved him in the crime.
14. I have heard Sri D.R. Mishra, learned counsel for the appellant, Sri Arjun Singh, learned counsel appearing on behalf of informant and learned A.G.A. for the State. I also perused the record of this appeal and the lower court record.
Submissions Of Counsel for Appellant
15. It has been submitted by learned counsel for the appellant that in view of contradictory statements of the prosecution witnesses in order to improve the case of prosecution according to their own design, none of the witness seems to be reliable and their testimony ought to have been rejected. It was further submitted that in this case, the FIR had been lodged with inordinate delay without any reliable explanation. Moreover, the scribe of the written report has also not been examined in the court, which creates a reasonable doubt about the authenticity of prosecution case. It is born out from the facts of the case that after consultation a false story had been cooked up to implicate the appellant for the reasons best known to prosecution witnesses belonging to one and the same family. It was further submitted that in this case, the age of the prosecutrix is more than 18 years as stated by the doctor. This age ascertained on the basis of opinion of medical experts has not been confronted by the prosecution by examining parents of the prosecutrix in this regard and about the exact date of birth or getting it recorded in school record, though the parents were examined by the prosecution on other issues. It was further submitted that only Xerox copy of school certificate had been brought on record, which had not been proved. It was further submitted that no original copy of school certificate had been brought on record or placed for inspection before the court below. Therefore, in absence thereof, the finding recorded by the Trial Court about the age of prosecutrix less than 18 years cannot be accepted. Learned counsel for the appellant lastly submitted that in view of above, the appeal deserves to be allowed and the appellant is liable to be acquitted.
16. It has been further submitted by learned counsel for the appellant that the prosecution story is neither reliable nor probable. The prosecution witnesses altogether changed the prosecution story as set up in the FIR. The prosecutrix stated before the learned Magistrate in statement under section 164 CrPC all together changed version of the incident. The witnesses of prosecution further changed the prosecution version and not only contradicted the version of FIR but also narrated the same story as stated by prosecutrix in statement under section 164 Cr.P.C before Magistrate. In the Court they gave a clean chit to Alok Shukla and stated that he was not accompanying the appellant at the time of committing the offences. The person who was accompanying with appellant was an unknown person. The medical report is also not supporting the prosecution story. The age of prosecutrix was found by the experts more than 18 years at the time of incident. The FIR is delayed and no acceptable reason has been given by the prosecution for its delay. The prosecution failed to establish its case beyond reasonable doubt. Hence the appeal is liable to be allowed. Learned counsel for the appellant in support of his contentions relied upon following judgements.
1. Jagannivasan Vs. State of Kerala; 1995 Supp (3) SCC 2045.
2. Narayan alias Naran Vs. State of Rajasthan; (2007) 6 SCC 4653.
3. Radhu Vs. State of Madhya Pradesh; (2007) 12 SCC 57.
4. Lalliram and another Vs. State of Madhya Pradesh; (2008) 10 SCC 69.
5. Raju and others Vs. State of Madhya Pradesh; (2008) 15 SCC 133.
6. Alamelu and another Vs. State represented by Inspector of Police; (2011) 2 SCC 385.
Submissions of Counsel For State and Informant
17. The learned AGA and special counsel for informant submitted that in cases relating to rape delay in lodging FIR is not very material, moreover a reasonable explanation has been given by the prosecution. So far as the age of prosecutrix is concerned, she was less than 18 years of age on the date of commission of the crime as per school certificates. Her date of birth mentioned therein as 1.12.1994. There is a cogent evidence on record that prosecutrix was forcibly taken away by the appellant and committed rape upon her. It is not reconcilable as to why an unmarried girl will put on stake her character and chastity for falsely implicating the appellant. Hence no interference is warranted in the Judgement of the Trial Court and appeal deserves to be dismissed. They relied upon the Judgement of Apex Court in State of U.P. vs. Chhotey Lal, (2011) 2 SCC 550.
18. Before averting to the submissions of the parties, it would be proper to have a look of the prosecution version at the stage of lodging FIR, during investigation conducted by police, at the stage of recording the statement of prosecutrix under section 164 CrPC and finally during trial.
19. According to the prosecution story as narrated in FIR, the accused persons were alleged to have enticed away the prosecutrix under promise to marry with the appellant on 06.08.2012. In the FIR the mother of prosecutrix has not made any allegation of rape against the accused persons though the FIR had been lodged after an interval of three days from the date of incident and also after recovery of the prosecutrix from the Railway Station, Gonda. It was a specific case in FIR that the prosecutrix on the same night disclosed entire incident happened with her to her mother and on the basis of such information given by the prosecutrix, she lodged the FIR on 09.08.2012. It was a specific case of the prosecution that accused persons enticed away the prosecutrix under promise to marry and taken her to Railway Station, Gonda from where the prosecutrix was found along with accused persons including appellant who left the place after reaching the family members of the prosecutrix and the prosecutrix was taken back to the home by her parents, however the time of coming back to the house has not been disclosed in the FIR.
20. Almost similar version has been reiterated by the parents and prosecutrix in statement under section 161 Cr.P.C.(as is born out from cross examination while confronting them with their statements made under section 161 Cr.P.C.). From the statements given during investigation it appears that parents of prosecutrix were searching prosecutrix and they also went to Bus stand, Gonda in her search. Later on, they were informed by some body present on Gonda Railway Station regarding presence of prosecutrix with appellant at railway station. Thereafter, they reached at railway station and found his daughter there with appellant. From railway station they took back her daughter as appellant escaped from there.
21. This version of prosecution story was totally over turned by prosecutrix before the Magistrate and stated that she and her brother were coming back from her Maushi's house and in the way the appellant and Alok Shukla met them. They beaten her brother Amit and turned him back from the spot. Thereafter the appellant and Alok Shukla gagged her mouth by cloth and covering her face by Angauchha, taken away the prosecutrix forcibly on the motorcycle. The motorcycle was being driven by Alok Shukla. The appellant was sitting as a pillion rider and in between them, the prosecutrix was sitting. She was taken to an unknown place where she was kept in a closed room and forcibly raped by both, the appellant as well as Alok Shukla and thereafter, they left her at Gonda Railway Station.
22. The story was further improved by the prosecutrix stating on oath before trial court that Sandeep was coming on motorcycle and prosecutrix was coming back with Amit on bicycle. Sandeep hit her bicycle and on account of that they fell down and thereafter she was forcibly taken away by Sandeep with the help of another person accompanying Sandeep. Neither she nor Amit knew him (the other person). She had been taken to a closed room where she was administered some intoxicant in water by the appellant Sandeep. She became semi conscious and then only appellant committed rape. Thereafter she was taken to Railway Station by the accused persons and leaving her at the Railway Station, they managed their escape. The prosecutrix categorically stated in her statement on oath that Alok Shukla was not known to her and was not involved in the incident. The story was further developed by her that Amit after taking bicycle reached home and informed about kidnapping of her sister to the parents after calling them from their agricultural field where they were working. Thereafter they came to Railway Station, where they found her.
23. During the course of investigation, the prosecutrix (PW3) gave statement to the Investigating Officer that Sandeep was driving the motorcycle. He is of my village, so she was having talking term with her. The prosecutrix stated in her statement under section 161 Cr.P.C. that Sandeep has enticed her and taken to Railway Station, Gonda. He asked her to accompany with him to Delhi where he wants to marry her. She also stated in her statement under section 161 CrPC that several persons of her village are working at Railway Station and used to sell the books also. Somebody informed to my father. After sometime, her parents came to Railway Station where she was standing on the platform along with Sandeep and Alok. They after seeing her parents disappeared after leaving her standing there. The prosecutrix in her statement under Section 161, Cr.P.C. did not disclose about committing rape with her by accused persons.
24. However, PW3 categorically stated before the trial court that she narrated the entire story on the same night to her mother including commission of rape upon her. She also categorically stated to her mother that whatever she narrated should be mentioned in report. She also emphasized that commission of rape should also be mentioned in the report. She categorically stated before the trial court of administering intoxicant by the appellant Sandeep and thereafter she became semi-conscious and if, the Magistrate had not mentioned it in her statement , she cannot tell any reason of it. She also stated that neither she told the name of Alok to Magistrate, who was driving the motorcycle nor to the Investigating Officer. She also did not state about commission of rape by Alok either to the Magistrate or to the Investigating Officer and only stated that Sandeep committed rape with her. If the Magistrate has recorded her statement contrary to it, she cannot give any reason for that. She also could not give any reason for not mentioning the fact of administering intoxicant to her by appellant in the first information report lodged by her mother. She categorically admitted during trial that there was no stain of semen on her cloths nor any cloth was torn. She did not have any injury on her body. The Investigating Officer was not asked for the cloths, which she was bearing at the time of commission of rape. She also stated on oath that from 06.08.2012, when she was found at Railway Station, she remained with her parents till her statement was recorded before the Magistrate. She denied in her cross-examination that she has any sexual intercourse prior to this incident. She stated that the date of birth mentioned as 01.12.1994, in the Xerox copy available on record, is correct.
25. Smt. Manju Yadav,(PW1), mother of the prosecutrix deposed in the court that her daughter aged about 17 years, was returning from her Mausi's house and when she reached near Jharkhandi Tiraha, Sandeep took her daughter on motorcycle. At that time, she was at agricultural field. Sandeep took her daughter to Railway platform as told by her son then she and her husband reached Railway Station where they saw that her daughter was with Sandeep. Her daughter told her entire story. In cross-examination, she categorically stated that whatever she had written in the written report is correct. She specifically denied that she mentioned the name of Alok Shukla in the report. She also denied that she ever mentioned in the FIR that Alok and Saneep after enticement, took her daughter to Railway Station, Gonda. She also stated that when her son informed about the incident, she and her husband went to Railway Station as mentioned in the first information report. She admitted that there was crowd at Railway Station. Alok Shukla was not present at the Railway Station. She also admitted that police remained present at the Railway Station but she was having no knowledge that there is a police outpost at Railway Station. However she admitted that police outpost Salpur is hardly three kilometres from her village. Railway Station is hardly two and a half Kilometers from her village. Police Station Kotwali City and Kotwali Dehat are in the town of Gonda. She also stated that her daughter was under intoxication when she was found at Railway Station but she did not mention it in the first information report. She also stated that her statement was recorded by the Investigating Officer after 3-4 days from lodging of the report. She also stated that she was informed by her son at agricultural field and If this fact is not mentioned in the statement under Section 161, Cr.P.C. by the Investigating Officer, she cannot give any reason for that.
26. She also admitted in her statement on oath before the trial court that Mela Ram, Hukum Das and Chaitram are real brothers. Prior to this incident, Mela Ram registered a case against Om Prakash and Bhagoati Prasad under Sections 323, 324, 504 IPC which is still continuing. She also admitted that Sandeep is the son of Bhagoati Prasad. Mela Ram is her uncle and father-in-law of the village. She and Mela Ram are of the same caste. She also admitted that she earlier married near Dhanepur village but later on, she married with her free-will to Mangal Prasad-PW 2. She disowned that Sandeep was falsely implicated on account of enmity.
27. Mangal Prasad (PW 2), father of the prosecutrix, supported the version of the first information report and also stated that on the next date of incident Sandeep and his family members surrounded his house in the early morning at 4.00 a.m. and threatened them. Thereafter, he called his relatives on the next morning and thereafter his wife went to lodge the first information report. He also admitted that when her daughter was found at Railway Station, she was neither taken to GRP police station nor to Kotwali Police station, Gonda. He also categorically stated that her daughter did not tell him about the incident but she stated about the incident to her mother. He also stated that her daughter had not gone to school on the date of incident but had gone to her Mausi's house along with her brother at about 11.00 a.m., situate near Karbala Road in Gonda City. There was no special work. Only she went to met her Mausi where she stayed for about 1-2 hours and then came back and when she was returning, the incident took place. He also stated that about one and a half to two hours usually consumed by cycle to reach Gonda City from his house.
28. Amit Yadav (PW4), virtually repeated the story as narrated by the prosecutrix. However, he stated on oath that Sandeep has forcibly taken away her sister on the motorcycle with the help of one another. Thereafter he came back with bicycle to his house and informed to his parents at agricultural field where they were working that the prosecutrix was forcibly taken away by Sandeep. He stated that Jharkhani Tiraha is hardly 2-3 furlong from his village. He further stated that Railway Station is hardly four kilometres from his village. He told his parents at about 5 p.m. and thereafter his parents proceeded to Railway Station by bicycle. He admitted that he had not gone to Railway Station along with his parents and also did not know at what time his parents came back because he was sleeping.
29. PW 5, Ram Gyan Singh, Investigating Officer proved the contradictions in the statement of the witnesses with their statement under section 161 CrPC during cross-examination. He categorically stated that the prosecutrix did not disclose to him in her statement under section 161 CrPC that anybody committed rape upon her. He also categorically stated that the prosecutrix did not inform about the place of alleged commission of rape or administration of intoxicant to her or taking away her forcibly by accused. He also proved contradictions and omissions in the statements of other prosecution witness.
30. PW 6, Dr. Shivali Tripathi medically examined the prosecutrix and supported her report, details of which are given herein above. PW 7, R.C. Verma, Senior Radiologist also supported his report.
31. After hearing learned counsel for the appellant, learned counsel for the complainant and learned A.G.A. Following questions are required to be considered for deciding this appeal:
I. What was the age of the victim at the time of incident?
II. Whether the prosecutrix was forcibly taken away by the appellant ?
III. Whether the appellant has committed rape upon the prosecutrix ?
32. The Rule of appreciation of evidence of prosecutrix in cases relating to rape has been considered in several cases by Hon'ble Supreme Court.
33. Their Lordships of Hon'ble Supreme Court in State of U.P. Vs. Chhotey Lal, (2011) 2 SCC 550 as follows;
"26. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of women's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge."
34. The Hon'ble Supreme Court in aforesaid case of Chhotey Lal (supra) relied upon the judgement of its own Court in Bharwada Bhogibhai Hirjibhai Vs. State of Gujrat, (1983) 3 SCC 217, as is evident from para 27 and 28 at page 563-564 which runs as under;
"27. This Court has repeatedly laid down the guidelines as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the court. The observations made in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat deserve special mention as, in our view, these must be kept in mind invariably while dealing with a rape case. This Court observed as follows: (SCC p. 224, para 9) "9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot, therefore, be identical."
28. This Court went on to observe at SCC pp. 225-26: (Bharwada case, SCC para 10) "10. 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 feel extremely embarrassed in relating the incident to others being overpowered 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 int 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 the counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
35. In Alamelu v. State, (2011) 2 SCC 385, the Apex Court in para 51,52 and 53 at page 398 dealt with the law of corroboration of evidence of prosecutrix and ruled as follows:
"51. 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, Vivian Bose, J. speaking for the Court observed as follows: (AIR p. 57, para 19) "19. ... 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 Judge.... ...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."
52. The aforesaid proposition of law has been reiterated by this Court in numerous judgements 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.
53. In our opinion, the evidence of PW 2 does not satisfy the aforesaid test. The High Court erroneously concluded that the girl had not willingly gone with Sekar. The conclusion could only be recorded by ignoring the entire evidence with regard to the conduct of the girl from the time of the alleged abduction till the time of the alleged recovery. We have noticed earlier that she did not make any complaint on so many occasions when she had the opportunity to do so. We may, however, notice that even after the alleged marriage, the girl continued to be a willing partner in the entire episode. Even if the prosecution version is accepted in its totality, it would be established that the girl was staying with Sekar (A-1) from 31-7-1993 till 10-8-1993."
36. In Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57, in para 6 at page 60 the Hon'ble Supreme Court also considered the rule of appreciation of evidence of prosecutrix in rape cases :
"6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a "rape", if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
37. In Raju v. State of Madhya Pradesh, (2008) 15 SCC 133, the Supreme Court after taking into consideration the several authorities of it own consider the amendment in statute relating to sexual offences and the effect of false implication in para 10,11and 12 at page 141 observed as follows:
"10. The aforesaid judgements 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 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 State of Punjab v.Gurmit Singh case ((1996) 2 SCC 384) to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and 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 Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abatement 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 visualised 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."
38. In Lalliram v. State of Madhya Pradesh, (2008) 10 SCC 69, their Lordships of Hon,ble Supreme Court observed with regard to absence of injuries on the person and private parts of the prosecutrix in paras 11 at page 71:
"11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra v. State of Orissa (1977)3 SCC 41, where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar v. State of Haryana (2004) 4 SCC 379)"
39. In Jagannivasan Vs. State Of Kerala, 1995 Supp (3) SCC 204 while considering the question of consent of prosecutrix it has been held that her conduct not only at the time of incident is relevant but her previous and past incidental conduct is also relevant. In Narayan Alias Naran vs. State of Rajasthan, (2007) 6 SCC 465 their Lordships of Hon'ble Supreme Court further observed that when the evidence of prosecutrix is full of contradictions and is so artificial that it cannot be accepted, held, though evidence of prosecutrix can alone sustain conviction of the accused without corroboration from any other evidence, on fact conviction cannot be allowed to sustain.
40. In Vijay v. State of M.P. (2010) 8 SCC 191 decided recently Hon'ble Supreme Court referred to the following decisions of Hon'ble Supreme Court in State of Maharastra Vs. Chandraprakash Kewalchand Jain (1990) 1 SCC 550 and State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384 and also few other decisions and observed at page198 in para 14 as follows;
"14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
41. I will now take up the issue of Appellant's conviction under Section 376,366,363 IPC. Whilst upholding the conviction of Appellant under the aforesaid Sections the Trial Court has held that the girl would not have voluntarily gone with Appellant. It has also been held that she was not a major at the relevant time. This Court is of firm opinion that both the conclusions recorded by the trial court are contrary to the evidence on record.
What was the age of the victim at the time of incident?
42. This Court will first take up the issue with regard to the age of the girl. The trial court has based its conclusion on the Xerox copy of High school certificate which has not been proved by any witness.
43. Undoubtedly, the High School certificate indicates that the girl's date of birth is 01.12.1994. Therefore, even according to the aforesaid certificate, she would be above 17 years and 8 months of age (17 years 8 month and 5 days) on the date of the alleged incident i.e. 06.08.2012. The High school certificate has been issued by a Board of High School and Intermediate , Uttar Pradesh. If original certificate would have been filed, it may be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.
44. It may be noticed that even with reference to Section 35 of the Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by their Lordships of Supreme Court in Ravinder Singh Gorkhi v. State of U.P. (2006)5 SCC 584, which held at page 595 in para 38 as follows:
"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
45. It may be further noticed here that PW1 and PW2, the parents of prosecutrix, were examined in the court on 27.08.2013 and 02.09.2013. In their evidence, they made no reference to the date of birth mentioned in the High School certificate . He did not mention the exact age of girl or her date of birth.
46. The manner in which the facts recorded in a document may be proved, has been considered by their Lordships of Supreme Court in Birad Mal Singhvi v. Anand Purohit 1988 Supp 604, and observed in para 14 at page 618-619 as follows;
"14. ... The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. ... Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."
47. The same proposition of law is reiterated by the Hon'ble Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003) 8 SCC 745, where the Apex Court observed at page 751 in para 16 as follows:
"16. ... The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the ''evidence of those persons who can vouchsafe for the truth of the facts in issue'."
48. This Court is of the view that the aforesaid burden of proof has not been discharged by the prosecution. The parents of the prosecutrix said nothing about the High School certificate in their evidence. The person recorded the age of prosecutrix in school has not been examined at all. Therefore, the entry in the High School certificate cannot be relied upon to definitely fix the age of the girl.
49. In fixing the age of the girl as below 18 years, the trial court relied solely on the Xerox copy of High School certificate. However, the trial court failed to consider the expert evidence given by PW5 Dr. Shivali Tripathi, who had medically examined the victim. In her examination, she had clearly stated that the medical examination would only point out the age above 18 years. The concerning Radiologist (PW7) also opined that prosecutrix is above 18 years and the age of the girl could also be of 19 or 20 years. This margin of error in age has been judicially recognised by the Apex Court in Jaya Mala v. Govt. of J&K (1982) 2 SCC 538. In the aforesaid judgement, it is observed at page 541 in para 9 as follows:
"9. ... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
50. This Court is of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the High School certificate. There was no reliable evidence to accept the correctness of the date of birth as recorded in the High School certificate. The expert evidence does not rule out the possibility of the girl being a major. In view of the above, the prosecution has failed to prove that the girl was a minor, at the relevant date.
51. In such circumstances, this Court is bound to hold that the trial court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was a minor at the time of the alleged abduction. There is no satisfactory evidence to indicate that she was a minor.
Whether the prosecutrix was forcibly taken away by the appellant ?
52. The first version of prosecutrix is available in the form of FIR, which according to PW1 has been narrated to her by prosecutrix soon after the incident. It is only on 14.08.2012 i.e. after 8 days of the incident, the prosecutrix changed the version before the Magistrate under Section 164 Cr.P.C.. PW 1 categorically stated that whatever told by her daughter has been written in the first information report. The stand taken in the FIR is totally in conflict with the stand taken by prosecutrix in her statement under Section 164 Cr.P.C.
53. The prosecutrix is a literate girl being student of BA Part-I. During the course of investigation she categorically stated that Sandeep is earlier known to her being the resident of the same village and she was having talking terms with Sandeep. The appellant Sandeep after stopping her enticed away to Railway Station on the pretext that he wanted to marry her and asked to accompany her to Delhi for that purpose. It is definite case of prosecution at every stage that the appellant Sandeep, remained present at the railway station along with the prosecutrix. There was crowd and police personnel used to remain present at railway station, is admitted to prosecution, as is evident from the statement of prosecution witnesses given during trial. The prosecution case in FIR is that appellant with Alok has enticed away the prosecutrix and taken away to Railway station. PW2 stated that he went in search of her daughter to railway station. The question as to who told him that appellant took the prosecutrix to railway station, the answer of it is available in statement of prosecutrix given to Investigating Officer. The prosecutrix stated therein that out of the persons of his village working at the railway station, someone informed her father thereafter her parents came to railway station. However she denied it during trial in her statement on oath. The stand, which was taken for the first time after 8 days in the statement recorded under Section 164, Cr.P.C., is not mentioned in the first information report lodged by the PW 1, the mother of the prosecutrix. Even if it is taken to be true that prosecutrix was forcibly abducted/kidnapped with intend to commit rape by appellant then why he will bring the prosecutrix at railway station soon after committing rape on the same evening, a place full of crowd where the persons of their village and police personnel usually remained present, does not reason to appeal. If she was forcibly abducted or kidnapped and raped, why she did not raise cries for her protection at railway station. The statement given by the prosecutrix for the first time in trial court that she was administered intoxicant before her kidnapping and commission of rape and she was also under effect of the same even at the railway station, so, could not raise alarm for her protection is not at all believable in the aforesaid facts and circumstances. This Court in the aforesaid facts and circumstances of the view that story of taking away prosecutrix forcibly is not at all believable and based on perverse findings recorded by the trial court.
Whether the appellant has committed rape upon the prosecutrix ?
54. In this case, the prosecutrix did not disclose about the commission of rape to her mother as is evident from the contents of the first information report and the statement given by her before the Investigating Officer. In the statement under Section 164 Cr.P.C., she alleged that Alok Shukla and the appellant both committed rape upon her in a closed room where she was taken and kept for about an hour. Thereafter when she was examined in the court, she exonerated Alok Shukla and had no hesitation to say that the Magistrate has recorded incorrect statement so far as Alok Shukla is concerned. She for the first time after 8 days told the story of rape. Her medical examination was conducted on 10.08.2012, but she did not state a single word about commission of rape to the doctor. From the statement of Investigating Officer, it also reveals that just after recording the first information report when she was called to police station for recording her statement on 10.08.2012, she has not given any statement to the Investigating Officer. She gave a statement to the Investigating Officer wherein too, she did not disclose the commission of rape by the appellant, therefore, when appellant was arrested in the morning of 14.08.2012 was not booked under section 376 IPC. She charged the appellant and Alok for the offence of rape on 14.08.2012 when she was later on examined under section 164 CrPC by the Magistrate. It is not in dispute that the prosecutrix throughout remained with her parents and relatives from 06.08.2012 to 14.08.2012. It is not the stand of PW 1, mother of the prosecutrix, that she has not disclosed the commission of rape for the reason that she was under fear of the accused or she does not want to bring it on record considering the future of her daughter rather she took a stand that she mentioned the commission of rape upon her daughter in the first information report and if the same is not written, she cannot give any explanation about it. In these circumstances, the person who scribed the report on the dictation of PW 1, was required to be examined before the court to substantiate the stand taken by PW 1, but it is strangely enough that his name was not written in the first information report. He was not known either to PW 1 or to the Investigating Officer. In the absence of the evidence of scriber, the statement of PW 1 cannot be believed that she mentioned the commission of rape in the written report upon her daughter by the appellant. It is also worth noticed that the prosecutrix herself stated that neither her cloths were torn nor any stain of blood or semen was present on her cloths. She also admitted that she is the student of B.A. Part-1. During medical examination, no live or dead spermatozoa was found in the vaginal smear . Hymen was found to be old torn and two fingers may be inserted easily in the vagina of the prosecutrix. Neither any injury was found on the person nor on the private part of the prosecutrix. It is also worth noticed that if it is a case of gang rape as per the statement under Section 164 Cr.P.C. and if she was recovered after an hour, it is not possible that her cloths should not have any stain either of blood or semen if she was forcibly raped by two persons or even by one person as stated in court. The first information report is based on the information conveyed by the prosecutrix to her mother on the same night when the incident alleged to have been taken place. It is not in dispute that the prosecutrix alleged to have been enticed away in the forenoon on 06.08.2012 and was found at Railway Station along with appellant on the same evening. She charged non-appellant Alok and appellant for committing gang rape with her in statement under section 164 CrPC and consequently trial court tried them under section 376-D of IPC. But when the prosecutrix examined in court she completely exonerated Alok from all the charges and in his place introduced an unknown person in the story. It is not only prosecutrix who gave clean chit to Alok but also the parents and brother of prosecutrix who were examined as PW 1, PW 2 and PW 3 also tuned themselves with prosecutrix, why all the witnesses of fact, being the member of the same family do it, remained unexplained in the evidence of prosecution. Normally when an unmarried girl of aged about 17 or 18 years of age is forcibly abducted or kidnapped and raped by two persons against her will for the first time, it would not be possible that her cloths may not have a single stain of blood or semen or any injury on her person or on private parts. In medical examination no sign of commission of gang rape or rape with prosecutrix were found by the doctor, rather it has been observed that her hymen was torn and healed and two finger easily admits in her vaginal. It is worth noticed that prosecutrix was medically examined before recording her statement under section 164 CrPC.
55. The prosecutrix is the only witness of alleged commission of rape committed upon her. Now the question comes for consideration before this Court , what value should be attached to the statement of the prosecutrix in this case in the light of the facts and circumstances of the case?
56. In Lallu Manjhi Vs. State of Jharkhand (2003) 2 SCC 401 the Hon'ble Supreme court has classified the oral testimony of witnesses into three categories:
(a). Wholly reliable
(b). Wholly unreliable, and
(c). neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and to see whether the statement of such witness is corroborated , either by the other witness or by other documentary or expert evidence.
57. When fact, circumstances and conduct of prosecutrix as a whole is taken into consideration, the statement of the prosecutrix cannot be held to be reliable witness. The benefit of section 114 A of Evidence Act cannot be extended to the prosecution. The sole testimony of prosecutrix in such scenario cannot be the basis of conviction of appellant under section 376 IPC. The version of FIR also does not support the story of rape narrated by the prosecutrix. The statement under section 164 CrPC was also materially improved during trial. Medical evidence is also not supporting the story of rape. The only injury of abrasion on face of prosecutrix cannot the the result of struggle because the prosecutrix her self stated on oath that she did not receive any injury on her person during course of incident.
58. The Courts should also take into consideration that when normally it is said that a woman will not falsely implicate a person for the offence of rape putting her chastity and character on stake than it should also be a matter of deep consideration and great concern that if a woman do not hesitate in falsely implicating a person in a serious offence like rape, as happened in the present case (so far as accused non-appellant Alok is concerned) why evidence of such a lady may be accepted as a gospel truth without any corroboration for the other accused( the appellant). The society is running in 21st century where women are not hesitating to live in relation with a male of his choice without observing the holy rituals of marriage. This voice of free consensual sex is sounding in India also which is evident from the recent judgement of Apex Court in Suresh Kumar Koushal & Anr Vs. Naz Foundation & others, (2014) 1 SCC 1 What amount of agony a person face after charge of rape cannot be imagine nor expressed in words. He virtually lost everything in the society. He suffered a great stroke in his reputation and status in the society and amongst his family members and friends. The girl in this case is not a rustic woman but is a student of graduation class must have been studding in degree college. In view of medical examination of the prosecutrix, it could not be said with all certainty that she never have sexual intercourse prior to this incident. She is admittedly above 16 years of age on the date of alleged incident which is valid age for giving consent by a woman for sexual intercourse. Therefore, in view of above, the findings recorded by the learned trial court are not sustainable being against the record. The appreciation made by the trial court is not based on well founded norms propounded by the Apex Court. In these circumstances, the evidence of prosecutrix cannot be relied upon as there is nothing on record to corroborate the story of the prosecutrix regarding commission of rape by the appellant. Hence, it is not possible to convict the appellant on the sole testimony of the prosecutrix for the alleged commission of rape. In view of the nature of evidence adduced by the prosecution, it would be difficult to believe that whatever the prosecutrix stated is absolutely true. In view of the discussion made by this Court regarding appreciation of evidence in rape cases, it is true that the the prosecutrix is not an accomplice and normally her statement should be treated as a statement of injured witness but this rule of appreciation of evidence of prosecutrix cannot be applied in this case for the reasons given herein above.
Conclusion
59. Resultantly, this Court is of the firm view that finding recorded by the trial Court with regard to conviction under section 376 IPC is perverse and cannot be allowed to sustain.
60. So far as the charges under section 363 and 366 IPC are concerned, considering the age of prosecutrix (belongs to the one and the same family), facts and circumstances of case and also keeping in view the conduct of prosecutrix emerged out from the evidence of prosecution the possibility of forcibly taking her by appellant is completely ruled out. It is difficult to believe the story of prosecution which changes at every stages as per design of prosecution witnesses. This leaves no room to doubt in the mind of the Court that story of forcibly taking away the prosecutrix by the appellant does not inspire confidence and could not be believed as true. The finding recorded by the trial court in this regard is also perverse.
61. The appellant was also convicted under section 506 IPC. No specific time, place or date for commission of such offence is given in the FIR. PW2 stated on oath that he called his relatives and they came on the next morning . Thereafter his wife went to lodge the FIR. He also stated for the first time in court that the appellant and his associates surrounded his house in early morning at about 4 AM, but no such facts have been narrated in FIR. Moreover, when this court finds that evidence of witnesses of prosecution is not reliable on material issues then there shall be no reason to believe them for this minor offence, specially when their evidence on this score is also not consistent.
62. In view of the aforesaid discussions made, this Court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt regarding the offence against which the appellant has been charged. It appears that the entire prosecution story has been concocted for the reason best known to the prosecution. In the opinion of this Court, the conclusions arrived at by the trial court are wholly perverse. The appellant is entitled to the benefit of doubt.
63. Resultantly, the appeal is allowed. The appellant is acquitted of the charges levelled against him. The appellant is in jail. He be released forthwith if he is not wanted in any other case.
64. Copy of this judgement be sent to trial Court along with record of lower court for compliance.
65. Senior Registrar of this Court shall also ensure the compliance of this order so that the appellant may be released forthwith without any further delay.
Dated:13.02.2014 akverma