Section 363, 366 and 376 I.P.C - delay in lodging FIR -appreciated from a different perspective -The prosecutrix was missing from home for two months -either the mother or the brother would have lodged a missing report at the police station -No explanation has been offered for such delay -The recovery of the prosecutrix by the brother and her friends also creates a cloud of suspicion- Arif has not been examined - she had travelled from place to place and she was ravished number of times - there are no injuries on the private parts- The only explanation - she was threatened by the accused persons. It is not in her testimony that she was confined to one place-True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same.- In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach - Apex court set aside the orders of lower courts - 2015 S.C.msklawreports
The obtaining factual matrix has to be appreciated on the touchstone
of the aforesaid parameters. Be it clearly stated here delay in lodging
FIR in cases under Section 376 IPC would depend upon facts of each case and
this Court has given immense allowance to such delay, regard being had to
the trauma suffered by the prosecutrix and various other factors, but a
significant one, in the present case, it has to be appreciated from a
different perspective. The prosecutrix was missing from home. In such a
situation, it was a normal expectation that either the mother or the
brother would have lodged a missing report at the police station. The same
was not done. This action of PW-2 really throws a great challenge to
common sense. No explanation has been offered for such delay. The learned
trial Judge has adverted to this facet on an unacceptable backdrop by
referring to the principle that prosecutrix suffered from trauma and the
constraint of the social stigma. The prosecutrix at that time was nowhere
on the scene. It is the mother who was required to inform the police about
missing of her grown up daughter. In the absence of any explanation, it
gives rise to a sense of doubt. That apart, the factum that the appellant
informed the mother of the victim that he hadleft the prosecutirx at the
door of her house also does not command acceptance. The recovery of the
prosecutrix by the brother and her friends also creates a cloud of
suspicion. We are not inclined to believe the prosecution version as has
been projected that one Arif had informed the brother of the prosecutirx
that his sister was at his place but for reasons best known to the
prosecution, Arif has not been examined. That apart, the persons who were
accompanying the brother have also not been examined by the prosecution.
Thus, the manner of recovery of the prosecutrix from the house of Arif
remains a mystery.
Be it noted, there can be no iota of doubt that on the basis of the
sole testimony of the prosecutrix, if it is unimpeachable and beyond
reproach, a conviction can be based. In the case at hand, the learned
trial Judge as well as the High Court have persuaded themselves away with
this principle without appreciating the acceptability and reliability of
the testimony of the witness. In fact, it would not be inappropriate to
say that whatever the analysis in the impugned judgment, it would only
indicate an impropriety of approach. The prosecutrix has deposed that she
was taken from one place to the other and remained at various houses for
almost two months. The only explanation given by her is that she was
threatened by the accused persons. It is not in her testimony that she was
confined to one place. In fact, it has been borne out from the material on
record that she had travelled from place to place and she was ravished
number of times. Under these circumstances, the medical evidence gains
significance, for the examining doctor has categorically deposed that there
are no injuries on the private parts. The delay in FIR, the non-
examination of the witnesses, the testimony of the prosecutrix, the
associated circumstances and the medical evidence, leave a mark of doubt to
treat the testimony of the prosecutrix as so natural and truthful to
inspire confidence. It can be stated with certitude that the evidence of
the prosecutrix is not of such quality which can be placed reliance upon.
True it is, the grammar of law permits the testimony of a prosecutrix can
be accepted without any corroboration without material particulars, for she
has to be placed on a higher pedestal than an injured witness, but, a
pregnant one, when a Court, on studied scrutiny of the evidence finds it
difficult to accept the version of the prosecutrix, because it is not
unreproachable, there is requirement for search of such direct or
circumstantial evidence which would lend assurance to her testimony. As
the present case would show, her testimony does not inspire confidence, and
the circumstantial evidence remotely do not lend any support to the same.
In the absence of both, we are compelled to hold that the learned trial
Judge has erroneously convicted the accused-appellants for the alleged
offences and the High Court has fallen into error, without re-appreciating
the material on record, by giving the stamp of approval to the same.
Resultantly, the appeals are allowed, judgment of conviction and
order of sentence are set aside and as the appellants are on bail, they be
discharged of their bail bonds. - 2015 S.C.msklawreports
The obtaining factual matrix has to be appreciated on the touchstone
of the aforesaid parameters. Be it clearly stated here delay in lodging
FIR in cases under Section 376 IPC would depend upon facts of each case and
this Court has given immense allowance to such delay, regard being had to
the trauma suffered by the prosecutrix and various other factors, but a
significant one, in the present case, it has to be appreciated from a
different perspective. The prosecutrix was missing from home. In such a
situation, it was a normal expectation that either the mother or the
brother would have lodged a missing report at the police station. The same
was not done. This action of PW-2 really throws a great challenge to
common sense. No explanation has been offered for such delay. The learned
trial Judge has adverted to this facet on an unacceptable backdrop by
referring to the principle that prosecutrix suffered from trauma and the
constraint of the social stigma. The prosecutrix at that time was nowhere
on the scene. It is the mother who was required to inform the police about
missing of her grown up daughter. In the absence of any explanation, it
gives rise to a sense of doubt. That apart, the factum that the appellant
informed the mother of the victim that he had
door of her house also does not command acceptance. The recovery of the
prosecutrix by the brother and her friends also creates a cloud of
suspicion. We are not inclined to believe the prosecution version as has
been projected that one Arif had informed the brother of the prosecutirx
that his sister was at his place but for reasons best known to the
prosecution, Arif has not been examined. That apart, the persons who were
accompanying the brother have also not been examined by the prosecution.
Thus, the manner of recovery of the prosecutrix from the house of Arif
remains a mystery.
Be it noted, there can be no iota of doubt that on the basis of the
sole testimony of the prosecutrix, if it is unimpeachable and beyond
reproach, a conviction can be based. In the case at hand, the learned
trial Judge as well as the High Court have persuaded themselves away with
this principle without appreciating the acceptability and reliability of
the testimony of the witness. In fact, it would not be inappropriate to
say that whatever the analysis in the impugned judgment, it would only
indicate an impropriety of approach. The prosecutrix has deposed that she
was taken from one place to the other and remained at various houses for
almost two months. The only explanation given by her is that she was
threatened by the accused persons. It is not in her testimony that she was
confined to one place. In fact, it has been borne out from the material on
record that she had travelled from place to place and she was ravished
number of times. Under these circumstances, the medical evidence gains
significance, for the examining doctor has categorically deposed that there
are no injuries on the private parts. The delay in FIR, the non-
examination of the witnesses, the testimony of the prosecutrix, the
associated circumstances and the medical evidence, leave a mark of doubt to
treat the testimony of the prosecutrix as so natural and truthful to
inspire confidence. It can be stated with certitude that the evidence of
the prosecutrix is not of such quality which can be placed reliance upon.
True it is, the grammar of law permits the testimony of a prosecutrix can
be accepted without any corroboration without material particulars, for she
has to be placed on a higher pedestal than an injured witness, but, a
pregnant one, when a Court, on studied scrutiny of the evidence finds it
difficult to accept the version of the prosecutrix, because it is not
unreproachable, there is requirement for search of such direct or
circumstantial evidence which would lend assurance to her testimony. As
the present case would show, her testimony does not inspire confidence, and
the circumstantial evidence remotely do not lend any support to the same.
In the absence of both, we are compelled to hold that the learned trial
Judge has erroneously convicted the accused-appellants for the alleged
offences and the High Court has fallen into error, without re-appreciating
the material on record, by giving the stamp of approval to the same.
Resultantly, the appeals are allowed, judgment of conviction and
order of sentence are set aside and as the appellants are on bail, they be
discharged of their bail bonds. - 2015 S.C.msklawreports
