Hon'ble Mrs. Saroj Yadav,J.
(ORAL) (Per Saroj Yadav, J. for the Bench)
1. This appeal along with application under Section 378(3) of the Code of Criminal Procedure 1973 (in short "Cr.P.C.") read with Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "SC/ST Act") has been filed by the State-appellant against the judgment and order passed by Additional Sessions Judge/Special Judge, SC/ST Act, Lakhimpur Kheri in Special Sessions Trial No. 106 of 2017, Crime No. 264 of 2017, under Section 376-D of The Indian Penal Code, 1860 (in short "IPC") and Section 3(2)(V) SC/ST Act, Police Station Fardhan, District Lakhimpur Kheri, whereby the accused-respondents have been acquitted.
2. Heard Ms. Nand Prabha Shukla, learned Additional Government Advocate appearing on behalf of the State-appellant.
3. Shorn off unnecessary details, the facts necessary for disposal of this appeal are:-
A First Information Report (in short "F.I.R.") was lodged by the victim/complainant against the accused-respondents on 13.09.2017 stating that on 09.09.2017 at about 7.00 PM, while she had gone to ease herself in the field of sugarcane near her village, the accused persons namely Chhote Verma and Hemnath, who were ambushing in the field of sugarcane, caught her and gagged her mouth and committed rape on her one by one. When the victim did not return home, her husband reached at the spot, then accused persons Chhote Verma and Hemnath ran away from the spot. Thereafter, the victim narrated the entire incident to her husband.
4. The case was investigated and charge sheet submitted against the accused persons/respondents. The Magistrate concerned after taking cognizance of the offence committed the case to Sessions Court for trial. The Sessions Court framed charges against the accused persons. They denied the charges and claimed to be tried. The prosecution in order to prove charges levelled against the accused respondents examined the victim as P.W. 1, Sushil Kumar (husband of the victim) as P.W. 2, Dr. Yamini Badal as P.W. 3, Constable Sarita as P.W. 4 and Ravindra Verma, Investigating Officer/Circle Officer, Sadar as P.W. 5. Necessary documents were also proved by the prosecution i.e. Exhibits 1 to 5.
5. Learned A.G.A. assailed the impugned judgment submitting that learned Trial Court discarded the evidence of the victim and her husband without any proper and legal reason. The prosecution has proved charges levelled against the accused persons by the evidence of P.W. 1-victim. The victim is a married lady and she belongs to the scheduled caste. The trial Court has committed a grave error in not relying on the statement of the victim. The medical evidence has also corroborated the version of prosecution. Hence the impugned judgment and order is illegal, not sustainable in the eyes of law and liable to be set aside.
6. Considered the submissions advanced by learned A.G.A., perused the impugned judgment and order and the record of the Trial Court.
7. It is settled law that conviction can be made in case of rape on the basis of sole testimony of the victim but the testimony should be such as to raise confidence of the Court and the Court finds that genuine and reliable. If the evidence of victim sufferes from contradictions and not of high quality, then it shall not be just and legal to convict the accused relying upon her evidence. In such situation, the Court should look for corroboration. Hon'ble Apex Court in the case of Krishna Kumar Malik Versus State of Haryana (2011) 7 SCC page-130 has held as under:-
"No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality."
The Hon'ble Apex Court in the case of Rai Sandeep Alias Deepu Versus State (NCT of Delhi) (2012) 8 Supreme Court Cases 21 has laid down as under:-
"In our considered opinion, the ''sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ''sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
This view has again rehashed by the Hon'ble Apex Court in the case of Santosh Prasad Alias Santosh Kumar Versus State of Bihar (2020) 3 Supreme Court Cases 443.
8. The incident allegedly took place on 09.09.2017 and the F.I.R. was lodged on 13.09.2017. P.W. 1- victim/complainant in her statement has stated that while she had gone to ease herself in the field of sugarcane of Awadhesh Mishra, the accused respondents Chhote Verma and Hemnath Pasi, who were ambushing in the field of Sugarcane, caught her and after gagging her mouth, dragged in the field of sugarcane and committed rape on her, at the same time, her husband reached at the spot and on seeing him the accused respondent run away. The witness Sushil Kumar, the husband of the victim/complainant, has been examined as P.W. 2. He has stated that the victim is his wife and on the fateful day, while her wife had gone to ease herself in the field and when she did not come back, he tried to search her carrying a torch and reached at the field of sugarcane and witnessed that the accused respondents were committing rape on her. On flashing torch light, the accused respondents ran away leaving her wife.
9. Learned Trial Court did not find the statement of the victim of the standard to place reliance for convicting the accused respondents. Perusal of the record shows that there are major contradictions in the statement of P.W. 1 (victim). In her cross-examination, the victim has stated that the accused dragged her in "Khanti" (trench) near the sugarcane field and committed rape there but there is no mention of "Khanti" (trench) in the F.I.R. or statement of the victim recorded under Section 164 Cr.P.C. or in the site plan prepared by the Investigating Officer. The accused respondent Chhote Verma has been named in the F.I.R. and the victim in her examination-in-chief has stated that he committed rape upon her but in her cross-examination, she has stated that she did not know how the name of Chhote Verma was written in the FIR and further stated that it might be possible that the name of Chhote Verma mentioned by Kulwant Singh- ex-Pradhan of the village. Her signature was taken on the written report. She has also stated that she never met Chhote Verma @ Sanjay on the way, which goes "Guthna Bujurg" to "Khutna Khurd".
10. The medical evidence also does not corroborate the prosecution version or the statement of the victim. P.W. 3- Dr Yamini Badal, who examined the victim/complainant (P.W. 1), has stated that neither any external nor internal injury was found on the private parts or the person of the victim and as per the report of Forensic Science Laboratory, Lucknow, no spermatozoa were found in the vaginal smear of the victim. In her cross-examination, she has further stated that at the time of examination, no sign of rape was found.
11. P.W. 2-Sushil Kumar (husband of the victim), who has been produced as eye-witness of the crime, has also given contradictory statement. In his examination in chief, he has stated that he saw Chhote Verma was committing rape on her wife but in his cross-examination, he has stated that he did not see Hemnath committing rape.
12. The accused respondents Chhote Verma and Hemnath have stated in their statements recorded under Section 313 Cr.P.C. that they have been falsely implicated in the case and they further stated that they have no concern with the alleged incident and they are innocent.
13. The aforesaid analysis makes it clear that prosecution failed to prove charges levelled against the accused persons beyond reasonable doubt.
14. Learned A.G.A. could not evince that the findings given by the Court below while acquitting the accused-respondents were factually or legally incorrect.
15. Hon'ble Apex Court in the case of Achhar Singh Vs. State of Himachal Pradesh reported in 2021 SCC Online HP 870 in this regard has laid down as under:-
"It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal11. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 42. State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582 20-21 and Raveen Kumar v. State of Himachal Pradesh, 2020 SCC Online SC 869, 11.) that the Cr.P.C does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused".
16. We do not find any factual or legal error in the appreciation of evidence by the trial Court while acquitting the accused-respondents because there are material contradictions in the evidence of the victim. Medical evidence does not support the prosecution version. The statement of the victim is not of 'sterling' quality. There is no corroboratory evidence on record. Even P.W. 2, the husband of the victim, has given contradictory statements. Moreover, the view taken by the trial Court is a possible view. The trial Court has given valid, convincing and satisfactory reasons while passing the order of acquittal for not relying on the evidence of victim. For the aforesaid reasons, there appears no ground to disturb the acquittal recorded by the trial Court.
17. We, therefore, do not consider it to be a fit case for grant of leave to appeal to the appellant. The application seeking leave to appeal is, accordingly, rejected and the appeal is also dismissed.
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