1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1095 OF 2018
(Arising from SLP (Crl.) No. 8578/2017)
DOLA @ DOLAGOBINDA PRADHAN & ANR. ..APPELLANTS
VERSUS
THE STATE OF ODISHA ..RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. The judgment dated 10.05.2017 passed in CRA No. 267 of
1992 by the High Court of Orissa at Cuttack confirming the
judgment of conviction and order of sentence dated 20.07.1992
passed by the Assistant Sessions Judge, Bonai, in ST No. 65/2
of 1991-1992, is called in question in this appeal. By the
impugned judgment, the High Court has confirmed the
judgment and order of conviction passed against the appellants
for the offence under Section 376(2)(g) of the Indian Penal Code
2
(for short ‘the IPC’) and order of sentence of Rigorous
Imprisonment for ten years.
3. The case of the prosecution in brief is that when the
victim-prosecutrix was enroute home from her road side “eating
house” (hotel) near Khuntagaon weekly market at about 8:00
p.m. on 24.03.1990, the appellants suddenly emerged from
behind a ‘Mahulatree’ and gagged her mouth by a napkin and
physically carried her to a roadside date-palm clump. Akshya
Pradhan (Appellant No.2) threatened the victim with dire
consequences by showing a knife at her, and being frightened,
the victim could not raise any alarm. The appellants made her
lie on the field and both of them committed rape on her. The
victim thereafter rushed to her house and narrated the entire
episode to her husband. She also showed her torn inner
garments worn at the time of occurrence and the injury
sustained by her on her cheeks. The next day, at about 11.00
a.m. the victim and her husband went to the police station and
lodged the First Information Report (Ext. 1). The Investigating
Officer (PW-7) took up the investigation and filed the
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charge-sheet against both the accused for the above-mentioned
offence. After framing the charges, the Sessions Court held the
trial. As mentioned supra, the Trial Court convicted both the
accused for the offence punishable under Section 376(2)(g) of
the IPC and the same came to be confirmed by the High Court.
4. Ld. Counsel for the appellants, taking us through the
material on record, submitted that an implicit reliance cannot
be placed on the uncorroborated testimony of the victim, who
had a strong motive to implicate the appellants falsely in a
serious crime. The victim’s husband has not supported the
case of the prosecution. The story as put forth by the victim
bristles with inherent improbabilities and exaggerations. The
case of the prosecution is not supported by the medical
evidence and the entire case of the prosecution is a cooked-up
story against the appellants in order to take revenge against
them because of a business rivalry.
Ld. Counsel for the State argued in support of the
judgments of the Trial Court as well as the High Court.
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5. It is well settled law that if the version of the prosecutrix is
believed, basic truth in her evidence is ascertainable and if it is
found to be credible and consistent, the same would form the
basis of conviction. Corroboration is not a sine qua non for a
conviction in a rape case. The evidence of a victim of sexual
assault stands at par with the evidence of an injured witness
and is entitled to great weight, absence of corroboration
notwithstanding. If the evidence of the victim does not suffer
from any basic infirmity and the “probabilities factor” does not
render it unworthy of credence, as a general rule, there is no
reason to insist on corroboration, except from medical evidence,
where, having regard to the circumstances of the case, medical
evidence can be expected to be forthcoming. When a grown up
and married woman gives evidence on oath in Court that she
was raped, it is not the proper judicial approach to disbelieve
her outright.
6. In this regard it would be useful to quote certain
observations of this Court in the case of Bharwada Bhoginbhai
5
Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is
observed that:
“10. By and large these factors are not relevant
to India, and the Indian conditions. Without the
fear of making too wide a statement, or of
overstating the case, it can be said that rarely
will a girl or a woman in India make false
allegations of sexual assault on account of any
such factor as has been just enlisted. The
statement is generally true in the context of the
urban as also rural Society. It is also by and
large true in the context of the sophisticated,
not so sophisticated, and unsophisticated
society. Only very rarely can one conceivably
come across an exception or two and that too
possibly from amongst the urban elites.
Because: (1) A girl or a woman in the tradition
bound non- permissive Society of India would
be extremely reluctant even to admit that any
incident which is likely to reflect on her chastity
had ever occurred. (2) She would be conscious
of the danger of being ostracised by the Society
or being looked down by the Society including
by her own family members, relatives, friends
and neighbours. (3) She would have to brave
the whole world. (4) She would face the risk of
losing the love and respect of her own husband
and near relatives, and of her matrimonial home
and happiness being shattered. (5) If she is
unmarried, she would apprehend that it would
be difficult to secure an alliance with a suitable
match from a respectable or an acceptable
family. (6) It would almost inevitably and almost
invariably result in mental torture and suffering
to herself. (7) The fear of being taunted by
others will always haunt her. (8) She would feel
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extremely embarrassed in relating the incident
to others being over powered by a feeling of
shame on account of the upbringing in a
tradition bound society where by and large sex
is taboo. (9) The natural inclination would be to
avoid giving publicity to the incident lest the
family name and family honour is brought into
controversy. (10) The parents of an unmarried
girl as also the husband and members of the
husband's family of a married woman would
also more often than not, want to avoid
publicity on account of the fear of social stigma
on the family name and family honour. (11) The
fear of the victim herself being considered to be
promiscuous or in some way responsible for the
incident regardless of her innocence. (12) The
reluctance to face interrogation by the
investigating agency, to face the court, to face
the cross examination by Counsel for the
culprit, and the risk of being disbelieved, acts as
a deterrent.
11. In view of these factors the victims and
their relatives are not too keen to bring the
culprit to books. And when in the face of these
factors the crime is brought to light there is a
built-in assurance that the charge is genuine
rather than fabricated. On principle the
evidence of a victim of sexual assault stands on
par with evidence of an injured witness. Just as
a witness who has sustained an injury (which is
not shown or believed to be self inflicted) is the
best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a
victim of a sex-offence is entitled to great weight,
absence of corroboration notwithstanding. And
while corroboration in the form of eye witness
account of an independent witness may often be
forthcoming in physical assault cases, such
7
evidence cannot be expected in sex offences,
having regard to the very nature of the offence.
It would therefore be adding insult to injury to
insist on corroboration drawing inspiration from
the rules devised by the courts in the Western
World (Obeisance to which has perhaps become
a habit presumably on account of the colonial
hangover). We are therefore of the opinion that if
the evidence of the victim does not suffer from
any basic infirmity, and the “probabilities
factors” does not render it unworthy of credence,
as a general rule, there is no reason to insist on
corroboration except from the medical evidence,
where, having regard to the circumstances of the
case, medical evidence can be expected to be
forthcoming, subject to the following
qualification: Corroboration may be insisted
upon when a woman having attained majority is
found in a compromising position and there is a
likelihood of her having levelled such an
accusation on account of the instinct of
self-preservation. Or when the 'probabilities
factor' is found to be out of tune”.
(emphasis supplied)
7. In Sadashiv Ramrao Hadbe v. State of Maharashtra,
[(2006) 10 SCC 92], this Court reiterated that the sole
testimony of the prosecutrix could be relied upon if it inspires
the confidence of the Court:
“9. It is true that in a rape case the accused
could be convicted on the sole testimony of the
prosecutrix, if it is capable of inspiring confidence
in the mind of the court. If the version given by
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the prosecutrix is unsupported by any medical
evidence or the whole surrounding circumstances
are highly improbable and belie the case set up
by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts
shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case
is improbable and unlikely to happen.”
8. However, as is also evident from the observations above,
such reliance may be placed only if the testimony of the
prosecutrix appears to be worthy of credence. In this regard, it
is also relevant to note the following observations of this Court
in the case of Raju v. State of Madhya Pradesh, [(2008) 15 SCC
133], which read thus:
“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspected and should
be believed, more so as her statement has to be
evaluated on a par with that of an injured witness
and if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and
we respectfully agree with them, but at the same
time they cannot be universally and mechanically
applied to the facts of every case of sexual assault
which comes before the court.
11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but
at the same time a false allegation of rape can
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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.”
Having due regard in our mind to the above-mentioned
settled position in law, we have assessed the entire material on
record meticulously.
9. The victim/prosecutrix (PW-1) has deposed that on the
night of the incident, at about 7:00 p.m., the accused persons
forcibly lifted her while she was going alone to her house from
her hotel, her husband having left already. Though she wanted
to shout, she could not do so since the accused showed a knife
and threatened her with dire consequences. After this, both the
accused persons committed rape on her. According to her, her
saya (petticoat) (MO No. II) was stained with semen. The police
had seized her saree, saya, and blouse, and she was examined
10
by the doctor at the instance of the police. Although in the
examination-in-chief she has deposed about the exact names of
each of the accused, and the details of the incident, her
admissions in the cross-examination raise several doubts as to
the veracity of her version as found in the examination-in-chief.
In her cross-examination, she admitted that both the accused
persons have a hotel near her hotel; she is the first wife of her
husband; her sister is the second wife of her husband and is
also residing with her husband; the spot of the incident is in
between her hotel and Nuadihi Chowk; the road bifurcates at
Nuadihi Chowk and buses usually turn at that chowk; there
are shops on that chowk; her hotel is towards the west of that
road; the hotel of one Purna Bira is near her hotel; the house of
Purna Bira is close to the hotel where he resides with his family
members; Nuadihi U.P. School is near that chowk; there are 4
to 5 residential houses near that U.P. School; and teachers also
live on the school campus. The scene of offence is a corner
place in between the U.P. School and residential houses
situated near the school. She further deposed that there are
village roads near the scene of offence which connect to the
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main road. There are cultivable lands between the village road
and the spot. The spot is encircled by cultivable lands. There
are small stones near the spot. The spot is not plain, but it is
uneven. She further admitted in the cross-examination that
she did not meet anybody while going to her house after the
alleged incident, and that none of the neighbours came to her
house when she disclosed the matter to her husband. Her
husband, her brother-in-law, one servant boy and she herself
work in the hotel. One Mr. Dasarathi Sahu is a partner for this
hotel business. Vehicles ply throughout the day and night in
front of her hotel. In her hotel, food is usually served till 10.00
p.m. Curiously, she admitted that she could not say if the
occurrence took place on 24.03.1990. On the day of the
occurrence, there was a weekly market in the village and in that
market, business is usually carried on from morning till 10.00
p.m.
10. From the aforementioned admissions of the victim, it is
clear that the scene of offence is a busy area wherein a number
of buses ply, many shops and residential houses exist, and a
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school is also situated. The scene of offence is near a circle
wherein buses pass through frequently. The business in that
area generally ends only at 10.00 p.m., which means that the
area in question is a very busy area till 10.00 p.m. According
to the prosecution, both the accused persons lifted the victim
forcibly from the road, sometime between 7:00 and 8:00 p.m.
and took her from that busy area and committed the offence of
rape on her. Such a story put forth by the prosecution which
prima facie appears to be improbable needs to be proved by the
prosecution beyond reasonable doubt. Though both the Courts
concurrently concluded against the accused persons, we, in
order to satisfy our conscience, have gone through the evidence
on record.
11. In her cross-examination, it was also admitted by the
victim that there is a Village Forest Protection Committee at
village Sadhubahal, and that people sometimes used to sell
firewood by removing the same from the forest and the
adjoining forests. She denied knowing that the Appellant No.1,
Dolagobinda Pradhan, was the President of the Village Forest
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Protection Committee, and that the Committee had asked her
husband to not remove firewood from the forest. However, she
admitted that there was a hot exchange of words between her
husband and the accused Dolagobinda, and that her husband
was assaulted by the people of village Sadhubahal, wherein
Dolagobinda also gave him blows. The occurrence of the said
assault had taken place in the morning on the date of
occurrence of rape. Again, on the very day in the evening, the
people of Sadhubahal created a disturbance at the hotel of the
victim/prosecutrix, demanding shifting of her hotel from that
place. According to the victim, the rape took place sometime
after that disturbance. Additionally, the prosecutrix deposed
that she, along with her husband, reported to the police about
the assault on her husband. Dolagobinda and the others
involved did not go to the police station when called. She also
stated that she, as well as her husband, was called to the police
station two days after the occurrence. In view of such
admissions of the victim, the submission made on behalf of the
accused that they have been falsely implicated in order to take
revenge against them appears to be well founded. It is the case
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of the defence that the prosecutrix and her husband used to
indulge in cutting of firewood from the forest and selling the
same in the market, due to which the villagers, as well as the
President of the Forest Protection Committee (Appellant No.1),
were aggrieved, and a tussle had taken place in that regard.
12. Curiously, the victim has not sustained any injury except
some bruises on her cheeks. Her clothes were not even soiled
with mud. In her cross-examination, she admitted that there
was a tussle at the time of the alleged incident, and that she
tried to save herself. She also stated that both the accused
persons physically lifted her from the spot, and her bangles had
been broken, by which she had sustained bleeding injuries on
her hands. Furthermore, she said that she also sustained
marks of violence on her hands. She did not sustain any injury
on her knee, breasts and buttocks. She stated that she has no
acquaintance with the accused persons and she did not have
any kind of dealings with them. She further admitted that she
had worn eight bangles on each of her hands and all her
bangles on the right hand were broken and only one bangle of
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the left hand remained unbroken, and that all the bangles were
broken at the spot of offence.
13. Although the prosecutrix admitted that she sustained
bleeding injuries on her hand because of the shattering of eight
bangles worn by her on her right hand and seven bangles on
her left hand, and had marks of violence present on her body,
the medical records do not support the said version. The report
of the medical examination is at Ext. 4. It is clearly mentioned
in the said report that there is a bruise mark measuring half a
centimeter, which can be caused by a hard and sharp object,
on the right cheek. No other mark of injury was seen anywhere
on the body. There is no injury on the breasts, there is no
internal injury on any part of the body and no injury was found
on the vulva, pelvis and vagina. There are no signs of injury on
the thighs as well. Except for one bruise on cheek which
measures half a centimeter, no other injury was found on the
victim and the same is clear from the medical report (Ext. 4).
14. Thus, medical evidence does not support the case of the
prosecution. The Doctor (PW-4), who examined the victim,
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however, has deposed that there were four bruises, each
measuring half a centimeter on the left cheek and four bruises
each measuring half a centimeter on the right cheek. The
Doctor opined that the injuries are simple in nature and might
have been caused by a hard and sharp object. The Doctor did
not find any other injury on the body of the victim. There was
no injury on the back side of the body of the victim. Although
the Doctor has deposed in the examination-in-chief that the
injuries could have been caused by human bite, he has
admitted in his cross-examination that he has not mentioned
the shape of the injuries in his report. He further admitted that
a bruise can be caused by a blunt object like stone, wood, fist
blow etc. and can also be caused by a fall. While a bruise is
always accompanied by swelling, an abrasion caused by a
human bite is elliptical or circular in form, and is represented
by separated marks corresponding to the teeth of the upper and
lower jaw. If we were to believe that the abrasion was caused by
a bite, the same should have been elliptical or circular in form.
The said material is not forthcoming from the records.
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Moreover, the medical report (Ext. 4) is contrary to the
version of the Doctor with regard to the number of injuries as
well. The medical report merely states that the victim has
sustained a bruise mark measuring half a centimeter in size,
which means that only one bruise was found on the right cheek
of the victim. However, during his deposition the Doctor has
exaggerated to say that the victim has sustained four bruises
on each of her cheeks. In any event, merely on the basis of a
bruise or bruises on the cheeks, which can be caused even by a
fall or by an assault with a hard substance, it cannot be said
that the victim has suffered sexual assault.
15. The sample of semen and saliva including the petticoat
(saya) of the victim were sent to the Forensic Science
Laboratory (for short ‘the FSL’) for examination. The FSL’s
report disclosed that semen was not detected on the saya
(petticoat). All other exhibits collected and sent to the FSL, i.e.
the samples of saliva and semen collected for testing purposes
from the two accused and the prosecutrix’s husband, were
unsuitable for serological examination. Since the saya
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(petticoat) did not contain any seminal stain, it would be hard
for the Court to believe that sexual assault had taken place on
the victim, more particularly when the other material does not
support the case of the prosecution, and when it is not the case
of the prosecution that the victim has changed her dress or that
she had washed her clothes, etc. Per contra, the evidence on
record discloses that the victim stayed in her house all night
and thereafter, leisurely at 11.00 a.m. the next day, she went to
the police station and lodged the FIR, after which she was taken
for medical examination. If the offence of rape had really taken
place, and her saya was in fact stained with semen, the same
would have been depicted in the FSL report.
16. It was also admitted by the prosecutrix in her
cross-examination that she had not clearly seen the face of
anyone at the time of occurrence and she could not recognize
the persons committing the rape by face, but she could
recognize them hearing their voice. If we were to believe that
the victim did not have any acquaintance with any of the
accused persons, and that she could not see and recognize the
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faces of any of the accused persons at the time of occurrence, it
would appear improbable for her to recognize the accused
merely by hearing their voice. There cannot be any dispute that
when the persons are known to each other, a person can
certainly identify the other person by voice. However, the
question of identification by voice has to be dealt with by the
Court carefully. In Kirpal Singh vs. State of U.P., [AIR 1965 SC
712], this Court, while dealing with the question of voice
identification, observed as follows:
“4…It is true that the evidence about the
identification of a person by the timbre of his
voice depending upon subtle variations in the
overtones when the person recognizing is not
familiar with the person recognized may be
somewhat risky in a criminal trial. But the
appellant was intimately known to Rakkha
Singh and for more than a fortnight before the
date of the offence he had met the appellant on
several occasions in connection with the
dispute about the sugarcane crop. Rakkha
Singh had heard the appellant and his brother
calling Karam Singh to come out of the hut and
had also heard the appellant, as a prelude to
the shooting referring to the dispute about
sugarcane.”
(emphasis supplied)
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In light of the above observations, the Court found
that the voice identification of the accused by a witness, whose
credibility had otherwise been accepted by the courts below,
was not improbable. This principle was also applied by this
Court in Mohan Singh vs. State of Punjab, [AIR 2011 SC 3534].
In this case, voice identification was accepted, inter alia, on the
ground that there was no evidence adduced to challenge the
evidence of the witness that he had acquaintance with the
accused and that he knew the voice of the accused. The Court
also adverted to the decision of this Court in Inspector of Police
vs. Palanisamy, [(2008) 14 SCC 495], wherein it was held that
though identification from voice is possible, no evidence had
been adduced to show that the witnesses were closely
acquainted with the accused to enable voice identification and
that too from very short replies.
Thus, from the above cases we may cull out the principle
that identification from the voice of the accused may be
possible if there is evidence to show that the witness was
sufficiently acquainted with the accused in order to recognize
him or her by voice.
21
In the matter on hand, the prosecutrix herself has
admitted that there was no acquaintance between the victim
and accused. In such a scenario, it would be difficult for us to
accept the version of the victim that she recognized the accused
from their voice. We reiterate the observations in Kirpal Singh
(supra) that the identification of a person by the timbre of his
voice is risky in a criminal trial, when the identifying person is
not familiar enough with the accused to be able to differentiate
between subtle variations in the overtones. In the view of the
lack of acquaintance between the prosecutrix and the accused,
it will not be safe for us to accept her version regarding the
identity of the accused, given the absence of a Test
Identification Parade.
17. The crown to these suspicious circumstances is that
PW-3, the prosecutrix’s husband, was declared hostile. In his
examination-in-chief, he deposed that the victim reached their
house between 7-8 p.m., crying. He refused to speak about
what she told him, out of shame. In his cross-examination by
the prosecution, he denied being told by his wife that the
accused forcibly lifted and raped her. He only admitted being
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told that the accused dragged her on the way. Thus, he
maintained that his wife had not narrated the rape incident to
him, even upon a specific query by the public prosecutor in this
regard.
He also admitted to the occurrence of the tussle over the
allegations of theft of forest produce levelled against him by the
accused and around forty other persons, all of whom assaulted
him on the morning of the alleged incident of rape and asked
him to shift his hotel away from its current location, which was
near the hotel operated by the accused. He specified that he
was not deposing falsely out of fear.
During his cross-examination on behalf of the accused, he
also admitted that a dispute occurred at his hotel on the day
before the date of the incident, in the absence of his wife. He
reiterated that on the day of the incident, around 50 persons
had created a disturbance at his hotel in the morning, though
he could not specify who hit him. He even went on to say that
his wife had sent someone to the police station after this
assault, whereupon the police came to his hotel, and even
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called everyone to the police station, though the accused did
not oblige.
With regard to the rape incident, he deposed that he
accompanied his wife to the police station on Sunday morning,
i.e. the day following the day of the alleged incident, reaching
around 10:00 a.m. and returning around 05:00 p.m. It may be
noted that the prosecutrix herself deposed in her
cross-examination that they returned around 1.30 to 2:00 p.m.
He claimed that having remained outside the police station
while his wife was examined, he had no knowledge of what
transpired inside. Finally, he admitted to not telling anyone in
the village about the rape incident or the visit to the police
station.
18. According to the prosecution, the incident has taken place
at about 7:00 p.m. to 8:00 p.m. on 24.3.1990. As per the
admissions of both the prosecutrix and her husband, PW-3, in
the morning as well as in the evening of the date of incident, a
number of people had gathered and created disturbance in the
hotel of the victim and PW-3, and assaulted him. It seems that
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the running of the hotel by the victim and her husband was not
palatable to the accused and forty other persons in the village.
Added to this, PW-3 was stated to have been involved in the
theft of forest produce and in that regard the villagers had a
grievance against him.
19. As mentioned supra, the spot where the alleged rape had
been committed and the spot from where the victim was forcibly
physically lifted by the accused were not deserted places,
inasmuch as in the normal course of a day, numerous
passersby and vehicles ply there. It is unlikely that no one had
noticed the victim being lifted and subjected to forcible sexual
intercourse. Though the victim narrated the entire incident to
her husband (PW3), he has denied before the Court that the
victim informed him about the commission of forcible sexual
assault on her. Firstly, the husband (PW-3) refutes that the
victim told him that she was lifted from the spot and subjected
to forcible sexual intercourse. Secondly, PW-3 has deposed that
the victim told him that the appellants had dragged the victim
on the way. And finally, he has also denied stating to the
25
Investigating Officer that the victim told him that while she was
returning home from the hotel, the appellants have committed
rape on her. The deposition of PW-3 as mentioned supra,
practically does not support the version of the victim. There is
no reason as to why PW-3, being the husband of the victim,
would contradict her version. Moreover, the victim has deposed
that she did not see the face of anyone clearly, at the time of
occurrence and that she did not recognize the faces of the
persons committing rape on her. As we have observed supra,
in the instant case, the contention of voice recognition cannot
be accepted. That apart, though PW-3 was informed by the
victim about the incident immediately afterwards, which is the
natural conduct of a victim, strangely he was never examined
by the police, as per his own admission, though he was
standing outside the Police Station all throughout the recording
of his wife’s statement. The victim alone was taken inside the
Police Station for reasons best known to the prosecution. In
that context, the contentions of the defence that there is a
likelihood of creating a false case against the accused assume
importance.
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20. The evidence of the victim/prosecutrix and her husband
(PW-3) are unreliable and untrustworthy inasmuch as they are
not credible witnesses. Their evidence bristles with
contradictions and is full of improbabilities. We cannot resist
placing on record that the prosecution has tried to rope in the
appellants merely on assumptions, surmises and conjectures.
The story of the prosecution is built on the materials placed on
record, which seems to be neither the truth, nor wholly the
truth. The findings of the courts below, though concurrent, do
not merit acceptance or approval in our hands with regard to
the glaring infirmities and illegalities vitiating them, and the
patent errors apparent on the face of record resulting in serious
and grave miscarriage of justice to the appellants.
21. In the matter on hand, on going through the entire
material on record, we are of the clear opinion that the
prosecutrix apparently had motive to seek revenge against the
accused persons. The testimony of the victim in the peculiar
facts and circumstances of this case needs to be discarded,
since her testimony is a result of seeking revenge against the
27
accused and as her evidence is not free from blemish. The
prosecutrix’s evidence with regard to identification of the
accused was unworthy of credence as she has deposed that she
could not identify the faces of any of the accused persons,
coupled with the factum that no spermatozoa was found
evidencing recent sexual intercourse, as also there was no
injury on her body, except of course, a bruise on her cheek
measuring half a centimeter. No doubt, solely relying on the
version of the victim, a conviction can be recorded, but such
version should be reliable. If really the victim had deposed
about the incident to her husband immediately after the
incident, there is no reason for PW-3 being the husband of the
victim, to not depose about the same before the Court. The
testimony of PW-3 contradicts the story laid down by the
informant. At the cost of repetition, it can be observed that
firstly, PW-3 denies specifically that the informant told him that
she was lifted from the spot and subjected to forcible sexual
intercourse. Secondly, it is specified by PW-3 that the
informant merely told him that the accused were dragging her.
Finally, he also denies having stated to the Investigation Officer
28
that the victim told him that while she was returning from
hotel, the accused committed rape on her. The Courts have
accepted the voluntary statement of the victim while discarding
various other probabilities. The alleged scene of offence could
hardly be described as a deserted place or a secluded place for
the commission of such a ghastly crime. The spot where the
alleged rape was committed is practically near the market, and
near the main road wherein vehicles frequently ply and more
particularly when the day of the incident was a market day
which used to be busy up to 10.00 p.m. All the attending
glaring inconsistencies and improbabilities as also the other
evidence on record which demolishes the version of the victim
are conveniently ignored by the Trial Court and the High Court.
The Police have failed to recover the napkin which was used for
gagging the mouth of the victim. So also the knife allegedly
used by the accused Akshya Pradhan for threatening the victim
was not recovered. The knife would have contained the
fingerprints of the accused if it was really used by the accused.
A careful reading of the evidence of the prosecutrix and her
husband (PW-3) therefore leads us to the conclusion that the
29
case as made out by the prosecution appears to be concocted. It
cannot be said that the offence of rape has been proved beyond
reasonable doubt.
22. In our considered opinion, the Trial Court as well as the
High Court have convicted the appellants without considering
the aforementioned factors in their proper perspective. The
testimony of the victim is full of inconsistencies and does not
find support from any other evidence whatsoever. Moreover,
the evidence of the informant/victim is inconsistent and
self-destructive at different places. It is noticeable that the
medical record and the Doctor’s evidence do not specify
whether there were any signs of forcible sexual intercourse. It
seems that the First Information Report was lodged with false
allegations to extract revenge from the appellants, who had
uncovered the theft of forest produce by the informant and her
husband. The High Court has, in our considered opinion,
brushed aside the various inconsistencies pointed out by us
only on the ground that the victim could not have deposed
falsely before the Court. The High Court has proceeded on the
30
basis of assumptions, conjectures and surmises, inasmuch as
such assumptions are not corroborated by any reliable
evidence. The medical evidence does not support the case of the
prosecution relating to the offence of rape. Having regard to the
totality of the material on record and on facts and
circumstances of this case, it is not possible for this Court to
agree with the concurrent conclusions reached by the courts
below. At best, it may be said that the accused have committed
the offence of hurt, for which they have already undergone a
sufficient duration of imprisonment, inasmuch as they have
been stated to have undergone two years of imprisonment.
Accordingly, the appeal is allowed. The judgments of the Trial
Court as well as the High Court are set aside. The appellants
are acquitted of the charges levelled against them. They should
be released forthwith, if they are not required in any other case.
..………………………………..…….J.
[N.V. RAMANA]
..……………………………………….J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
AUGUST 29, 2018.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1095 OF 2018
(Arising from SLP (Crl.) No. 8578/2017)
DOLA @ DOLAGOBINDA PRADHAN & ANR. ..APPELLANTS
VERSUS
THE STATE OF ODISHA ..RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. The judgment dated 10.05.2017 passed in CRA No. 267 of
1992 by the High Court of Orissa at Cuttack confirming the
judgment of conviction and order of sentence dated 20.07.1992
passed by the Assistant Sessions Judge, Bonai, in ST No. 65/2
of 1991-1992, is called in question in this appeal. By the
impugned judgment, the High Court has confirmed the
judgment and order of conviction passed against the appellants
for the offence under Section 376(2)(g) of the Indian Penal Code
2
(for short ‘the IPC’) and order of sentence of Rigorous
Imprisonment for ten years.
3. The case of the prosecution in brief is that when the
victim-prosecutrix was enroute home from her road side “eating
house” (hotel) near Khuntagaon weekly market at about 8:00
p.m. on 24.03.1990, the appellants suddenly emerged from
behind a ‘Mahulatree’ and gagged her mouth by a napkin and
physically carried her to a roadside date-palm clump. Akshya
Pradhan (Appellant No.2) threatened the victim with dire
consequences by showing a knife at her, and being frightened,
the victim could not raise any alarm. The appellants made her
lie on the field and both of them committed rape on her. The
victim thereafter rushed to her house and narrated the entire
episode to her husband. She also showed her torn inner
garments worn at the time of occurrence and the injury
sustained by her on her cheeks. The next day, at about 11.00
a.m. the victim and her husband went to the police station and
lodged the First Information Report (Ext. 1). The Investigating
Officer (PW-7) took up the investigation and filed the
3
charge-sheet against both the accused for the above-mentioned
offence. After framing the charges, the Sessions Court held the
trial. As mentioned supra, the Trial Court convicted both the
accused for the offence punishable under Section 376(2)(g) of
the IPC and the same came to be confirmed by the High Court.
4. Ld. Counsel for the appellants, taking us through the
material on record, submitted that an implicit reliance cannot
be placed on the uncorroborated testimony of the victim, who
had a strong motive to implicate the appellants falsely in a
serious crime. The victim’s husband has not supported the
case of the prosecution. The story as put forth by the victim
bristles with inherent improbabilities and exaggerations. The
case of the prosecution is not supported by the medical
evidence and the entire case of the prosecution is a cooked-up
story against the appellants in order to take revenge against
them because of a business rivalry.
Ld. Counsel for the State argued in support of the
judgments of the Trial Court as well as the High Court.
4
5. It is well settled law that if the version of the prosecutrix is
believed, basic truth in her evidence is ascertainable and if it is
found to be credible and consistent, the same would form the
basis of conviction. Corroboration is not a sine qua non for a
conviction in a rape case. The evidence of a victim of sexual
assault stands at par with the evidence of an injured witness
and is entitled to great weight, absence of corroboration
notwithstanding. If the evidence of the victim does not suffer
from any basic infirmity and the “probabilities factor” does not
render it unworthy of credence, as a general rule, there is no
reason to insist on corroboration, except from medical evidence,
where, having regard to the circumstances of the case, medical
evidence can be expected to be forthcoming. When a grown up
and married woman gives evidence on oath in Court that she
was raped, it is not the proper judicial approach to disbelieve
her outright.
6. In this regard it would be useful to quote certain
observations of this Court in the case of Bharwada Bhoginbhai
5
Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is
observed that:
“10. By and large these factors are not relevant
to India, and the Indian conditions. Without the
fear of making too wide a statement, or of
overstating the case, it can be said that rarely
will a girl or a woman in India make false
allegations of sexual assault on account of any
such factor as has been just enlisted. The
statement is generally true in the context of the
urban as also rural Society. It is also by and
large true in the context of the sophisticated,
not so sophisticated, and unsophisticated
society. Only very rarely can one conceivably
come across an exception or two and that too
possibly from amongst the urban elites.
Because: (1) A girl or a woman in the tradition
bound non- permissive Society of India would
be extremely reluctant even to admit that any
incident which is likely to reflect on her chastity
had ever occurred. (2) She would be conscious
of the danger of being ostracised by the Society
or being looked down by the Society including
by her own family members, relatives, friends
and neighbours. (3) She would have to brave
the whole world. (4) She would face the risk of
losing the love and respect of her own husband
and near relatives, and of her matrimonial home
and happiness being shattered. (5) If she is
unmarried, she would apprehend that it would
be difficult to secure an alliance with a suitable
match from a respectable or an acceptable
family. (6) It would almost inevitably and almost
invariably result in mental torture and suffering
to herself. (7) The fear of being taunted by
others will always haunt her. (8) She would feel
6
extremely embarrassed in relating the incident
to others being over powered by a feeling of
shame on account of the upbringing in a
tradition bound society where by and large sex
is taboo. (9) The natural inclination would be to
avoid giving publicity to the incident lest the
family name and family honour is brought into
controversy. (10) The parents of an unmarried
girl as also the husband and members of the
husband's family of a married woman would
also more often than not, want to avoid
publicity on account of the fear of social stigma
on the family name and family honour. (11) The
fear of the victim herself being considered to be
promiscuous or in some way responsible for the
incident regardless of her innocence. (12) The
reluctance to face interrogation by the
investigating agency, to face the court, to face
the cross examination by Counsel for the
culprit, and the risk of being disbelieved, acts as
a deterrent.
11. In view of these factors the victims and
their relatives are not too keen to bring the
culprit to books. And when in the face of these
factors the crime is brought to light there is a
built-in assurance that the charge is genuine
rather than fabricated. On principle the
evidence of a victim of sexual assault stands on
par with evidence of an injured witness. Just as
a witness who has sustained an injury (which is
not shown or believed to be self inflicted) is the
best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a
victim of a sex-offence is entitled to great weight,
absence of corroboration notwithstanding. And
while corroboration in the form of eye witness
account of an independent witness may often be
forthcoming in physical assault cases, such
7
evidence cannot be expected in sex offences,
having regard to the very nature of the offence.
It would therefore be adding insult to injury to
insist on corroboration drawing inspiration from
the rules devised by the courts in the Western
World (Obeisance to which has perhaps become
a habit presumably on account of the colonial
hangover). We are therefore of the opinion that if
the evidence of the victim does not suffer from
any basic infirmity, and the “probabilities
factors” does not render it unworthy of credence,
as a general rule, there is no reason to insist on
corroboration except from the medical evidence,
where, having regard to the circumstances of the
case, medical evidence can be expected to be
forthcoming, subject to the following
qualification: Corroboration may be insisted
upon when a woman having attained majority is
found in a compromising position and there is a
likelihood of her having levelled such an
accusation on account of the instinct of
self-preservation. Or when the 'probabilities
factor' is found to be out of tune”.
(emphasis supplied)
7. In Sadashiv Ramrao Hadbe v. State of Maharashtra,
[(2006) 10 SCC 92], this Court reiterated that the sole
testimony of the prosecutrix could be relied upon if it inspires
the confidence of the Court:
“9. It is true that in a rape case the accused
could be convicted on the sole testimony of the
prosecutrix, if it is capable of inspiring confidence
in the mind of the court. If the version given by
8
the prosecutrix is unsupported by any medical
evidence or the whole surrounding circumstances
are highly improbable and belie the case set up
by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts
shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case
is improbable and unlikely to happen.”
8. However, as is also evident from the observations above,
such reliance may be placed only if the testimony of the
prosecutrix appears to be worthy of credence. In this regard, it
is also relevant to note the following observations of this Court
in the case of Raju v. State of Madhya Pradesh, [(2008) 15 SCC
133], which read thus:
“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspected and should
be believed, more so as her statement has to be
evaluated on a par with that of an injured witness
and if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and
we respectfully agree with them, but at the same
time they cannot be universally and mechanically
applied to the facts of every case of sexual assault
which comes before the court.
11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but
at the same time a false allegation of rape can
9
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.”
Having due regard in our mind to the above-mentioned
settled position in law, we have assessed the entire material on
record meticulously.
9. The victim/prosecutrix (PW-1) has deposed that on the
night of the incident, at about 7:00 p.m., the accused persons
forcibly lifted her while she was going alone to her house from
her hotel, her husband having left already. Though she wanted
to shout, she could not do so since the accused showed a knife
and threatened her with dire consequences. After this, both the
accused persons committed rape on her. According to her, her
saya (petticoat) (MO No. II) was stained with semen. The police
had seized her saree, saya, and blouse, and she was examined
10
by the doctor at the instance of the police. Although in the
examination-in-chief she has deposed about the exact names of
each of the accused, and the details of the incident, her
admissions in the cross-examination raise several doubts as to
the veracity of her version as found in the examination-in-chief.
In her cross-examination, she admitted that both the accused
persons have a hotel near her hotel; she is the first wife of her
husband; her sister is the second wife of her husband and is
also residing with her husband; the spot of the incident is in
between her hotel and Nuadihi Chowk; the road bifurcates at
Nuadihi Chowk and buses usually turn at that chowk; there
are shops on that chowk; her hotel is towards the west of that
road; the hotel of one Purna Bira is near her hotel; the house of
Purna Bira is close to the hotel where he resides with his family
members; Nuadihi U.P. School is near that chowk; there are 4
to 5 residential houses near that U.P. School; and teachers also
live on the school campus. The scene of offence is a corner
place in between the U.P. School and residential houses
situated near the school. She further deposed that there are
village roads near the scene of offence which connect to the
11
main road. There are cultivable lands between the village road
and the spot. The spot is encircled by cultivable lands. There
are small stones near the spot. The spot is not plain, but it is
uneven. She further admitted in the cross-examination that
she did not meet anybody while going to her house after the
alleged incident, and that none of the neighbours came to her
house when she disclosed the matter to her husband. Her
husband, her brother-in-law, one servant boy and she herself
work in the hotel. One Mr. Dasarathi Sahu is a partner for this
hotel business. Vehicles ply throughout the day and night in
front of her hotel. In her hotel, food is usually served till 10.00
p.m. Curiously, she admitted that she could not say if the
occurrence took place on 24.03.1990. On the day of the
occurrence, there was a weekly market in the village and in that
market, business is usually carried on from morning till 10.00
p.m.
10. From the aforementioned admissions of the victim, it is
clear that the scene of offence is a busy area wherein a number
of buses ply, many shops and residential houses exist, and a
12
school is also situated. The scene of offence is near a circle
wherein buses pass through frequently. The business in that
area generally ends only at 10.00 p.m., which means that the
area in question is a very busy area till 10.00 p.m. According
to the prosecution, both the accused persons lifted the victim
forcibly from the road, sometime between 7:00 and 8:00 p.m.
and took her from that busy area and committed the offence of
rape on her. Such a story put forth by the prosecution which
prima facie appears to be improbable needs to be proved by the
prosecution beyond reasonable doubt. Though both the Courts
concurrently concluded against the accused persons, we, in
order to satisfy our conscience, have gone through the evidence
on record.
11. In her cross-examination, it was also admitted by the
victim that there is a Village Forest Protection Committee at
village Sadhubahal, and that people sometimes used to sell
firewood by removing the same from the forest and the
adjoining forests. She denied knowing that the Appellant No.1,
Dolagobinda Pradhan, was the President of the Village Forest
13
Protection Committee, and that the Committee had asked her
husband to not remove firewood from the forest. However, she
admitted that there was a hot exchange of words between her
husband and the accused Dolagobinda, and that her husband
was assaulted by the people of village Sadhubahal, wherein
Dolagobinda also gave him blows. The occurrence of the said
assault had taken place in the morning on the date of
occurrence of rape. Again, on the very day in the evening, the
people of Sadhubahal created a disturbance at the hotel of the
victim/prosecutrix, demanding shifting of her hotel from that
place. According to the victim, the rape took place sometime
after that disturbance. Additionally, the prosecutrix deposed
that she, along with her husband, reported to the police about
the assault on her husband. Dolagobinda and the others
involved did not go to the police station when called. She also
stated that she, as well as her husband, was called to the police
station two days after the occurrence. In view of such
admissions of the victim, the submission made on behalf of the
accused that they have been falsely implicated in order to take
revenge against them appears to be well founded. It is the case
14
of the defence that the prosecutrix and her husband used to
indulge in cutting of firewood from the forest and selling the
same in the market, due to which the villagers, as well as the
President of the Forest Protection Committee (Appellant No.1),
were aggrieved, and a tussle had taken place in that regard.
12. Curiously, the victim has not sustained any injury except
some bruises on her cheeks. Her clothes were not even soiled
with mud. In her cross-examination, she admitted that there
was a tussle at the time of the alleged incident, and that she
tried to save herself. She also stated that both the accused
persons physically lifted her from the spot, and her bangles had
been broken, by which she had sustained bleeding injuries on
her hands. Furthermore, she said that she also sustained
marks of violence on her hands. She did not sustain any injury
on her knee, breasts and buttocks. She stated that she has no
acquaintance with the accused persons and she did not have
any kind of dealings with them. She further admitted that she
had worn eight bangles on each of her hands and all her
bangles on the right hand were broken and only one bangle of
15
the left hand remained unbroken, and that all the bangles were
broken at the spot of offence.
13. Although the prosecutrix admitted that she sustained
bleeding injuries on her hand because of the shattering of eight
bangles worn by her on her right hand and seven bangles on
her left hand, and had marks of violence present on her body,
the medical records do not support the said version. The report
of the medical examination is at Ext. 4. It is clearly mentioned
in the said report that there is a bruise mark measuring half a
centimeter, which can be caused by a hard and sharp object,
on the right cheek. No other mark of injury was seen anywhere
on the body. There is no injury on the breasts, there is no
internal injury on any part of the body and no injury was found
on the vulva, pelvis and vagina. There are no signs of injury on
the thighs as well. Except for one bruise on cheek which
measures half a centimeter, no other injury was found on the
victim and the same is clear from the medical report (Ext. 4).
14. Thus, medical evidence does not support the case of the
prosecution. The Doctor (PW-4), who examined the victim,
16
however, has deposed that there were four bruises, each
measuring half a centimeter on the left cheek and four bruises
each measuring half a centimeter on the right cheek. The
Doctor opined that the injuries are simple in nature and might
have been caused by a hard and sharp object. The Doctor did
not find any other injury on the body of the victim. There was
no injury on the back side of the body of the victim. Although
the Doctor has deposed in the examination-in-chief that the
injuries could have been caused by human bite, he has
admitted in his cross-examination that he has not mentioned
the shape of the injuries in his report. He further admitted that
a bruise can be caused by a blunt object like stone, wood, fist
blow etc. and can also be caused by a fall. While a bruise is
always accompanied by swelling, an abrasion caused by a
human bite is elliptical or circular in form, and is represented
by separated marks corresponding to the teeth of the upper and
lower jaw. If we were to believe that the abrasion was caused by
a bite, the same should have been elliptical or circular in form.
The said material is not forthcoming from the records.
17
Moreover, the medical report (Ext. 4) is contrary to the
version of the Doctor with regard to the number of injuries as
well. The medical report merely states that the victim has
sustained a bruise mark measuring half a centimeter in size,
which means that only one bruise was found on the right cheek
of the victim. However, during his deposition the Doctor has
exaggerated to say that the victim has sustained four bruises
on each of her cheeks. In any event, merely on the basis of a
bruise or bruises on the cheeks, which can be caused even by a
fall or by an assault with a hard substance, it cannot be said
that the victim has suffered sexual assault.
15. The sample of semen and saliva including the petticoat
(saya) of the victim were sent to the Forensic Science
Laboratory (for short ‘the FSL’) for examination. The FSL’s
report disclosed that semen was not detected on the saya
(petticoat). All other exhibits collected and sent to the FSL, i.e.
the samples of saliva and semen collected for testing purposes
from the two accused and the prosecutrix’s husband, were
unsuitable for serological examination. Since the saya
18
(petticoat) did not contain any seminal stain, it would be hard
for the Court to believe that sexual assault had taken place on
the victim, more particularly when the other material does not
support the case of the prosecution, and when it is not the case
of the prosecution that the victim has changed her dress or that
she had washed her clothes, etc. Per contra, the evidence on
record discloses that the victim stayed in her house all night
and thereafter, leisurely at 11.00 a.m. the next day, she went to
the police station and lodged the FIR, after which she was taken
for medical examination. If the offence of rape had really taken
place, and her saya was in fact stained with semen, the same
would have been depicted in the FSL report.
16. It was also admitted by the prosecutrix in her
cross-examination that she had not clearly seen the face of
anyone at the time of occurrence and she could not recognize
the persons committing the rape by face, but she could
recognize them hearing their voice. If we were to believe that
the victim did not have any acquaintance with any of the
accused persons, and that she could not see and recognize the
19
faces of any of the accused persons at the time of occurrence, it
would appear improbable for her to recognize the accused
merely by hearing their voice. There cannot be any dispute that
when the persons are known to each other, a person can
certainly identify the other person by voice. However, the
question of identification by voice has to be dealt with by the
Court carefully. In Kirpal Singh vs. State of U.P., [AIR 1965 SC
712], this Court, while dealing with the question of voice
identification, observed as follows:
“4…It is true that the evidence about the
identification of a person by the timbre of his
voice depending upon subtle variations in the
overtones when the person recognizing is not
familiar with the person recognized may be
somewhat risky in a criminal trial. But the
appellant was intimately known to Rakkha
Singh and for more than a fortnight before the
date of the offence he had met the appellant on
several occasions in connection with the
dispute about the sugarcane crop. Rakkha
Singh had heard the appellant and his brother
calling Karam Singh to come out of the hut and
had also heard the appellant, as a prelude to
the shooting referring to the dispute about
sugarcane.”
(emphasis supplied)
20
In light of the above observations, the Court found
that the voice identification of the accused by a witness, whose
credibility had otherwise been accepted by the courts below,
was not improbable. This principle was also applied by this
Court in Mohan Singh vs. State of Punjab, [AIR 2011 SC 3534].
In this case, voice identification was accepted, inter alia, on the
ground that there was no evidence adduced to challenge the
evidence of the witness that he had acquaintance with the
accused and that he knew the voice of the accused. The Court
also adverted to the decision of this Court in Inspector of Police
vs. Palanisamy, [(2008) 14 SCC 495], wherein it was held that
though identification from voice is possible, no evidence had
been adduced to show that the witnesses were closely
acquainted with the accused to enable voice identification and
that too from very short replies.
Thus, from the above cases we may cull out the principle
that identification from the voice of the accused may be
possible if there is evidence to show that the witness was
sufficiently acquainted with the accused in order to recognize
him or her by voice.
21
In the matter on hand, the prosecutrix herself has
admitted that there was no acquaintance between the victim
and accused. In such a scenario, it would be difficult for us to
accept the version of the victim that she recognized the accused
from their voice. We reiterate the observations in Kirpal Singh
(supra) that the identification of a person by the timbre of his
voice is risky in a criminal trial, when the identifying person is
not familiar enough with the accused to be able to differentiate
between subtle variations in the overtones. In the view of the
lack of acquaintance between the prosecutrix and the accused,
it will not be safe for us to accept her version regarding the
identity of the accused, given the absence of a Test
Identification Parade.
17. The crown to these suspicious circumstances is that
PW-3, the prosecutrix’s husband, was declared hostile. In his
examination-in-chief, he deposed that the victim reached their
house between 7-8 p.m., crying. He refused to speak about
what she told him, out of shame. In his cross-examination by
the prosecution, he denied being told by his wife that the
accused forcibly lifted and raped her. He only admitted being
22
told that the accused dragged her on the way. Thus, he
maintained that his wife had not narrated the rape incident to
him, even upon a specific query by the public prosecutor in this
regard.
He also admitted to the occurrence of the tussle over the
allegations of theft of forest produce levelled against him by the
accused and around forty other persons, all of whom assaulted
him on the morning of the alleged incident of rape and asked
him to shift his hotel away from its current location, which was
near the hotel operated by the accused. He specified that he
was not deposing falsely out of fear.
During his cross-examination on behalf of the accused, he
also admitted that a dispute occurred at his hotel on the day
before the date of the incident, in the absence of his wife. He
reiterated that on the day of the incident, around 50 persons
had created a disturbance at his hotel in the morning, though
he could not specify who hit him. He even went on to say that
his wife had sent someone to the police station after this
assault, whereupon the police came to his hotel, and even
23
called everyone to the police station, though the accused did
not oblige.
With regard to the rape incident, he deposed that he
accompanied his wife to the police station on Sunday morning,
i.e. the day following the day of the alleged incident, reaching
around 10:00 a.m. and returning around 05:00 p.m. It may be
noted that the prosecutrix herself deposed in her
cross-examination that they returned around 1.30 to 2:00 p.m.
He claimed that having remained outside the police station
while his wife was examined, he had no knowledge of what
transpired inside. Finally, he admitted to not telling anyone in
the village about the rape incident or the visit to the police
station.
18. According to the prosecution, the incident has taken place
at about 7:00 p.m. to 8:00 p.m. on 24.3.1990. As per the
admissions of both the prosecutrix and her husband, PW-3, in
the morning as well as in the evening of the date of incident, a
number of people had gathered and created disturbance in the
hotel of the victim and PW-3, and assaulted him. It seems that
24
the running of the hotel by the victim and her husband was not
palatable to the accused and forty other persons in the village.
Added to this, PW-3 was stated to have been involved in the
theft of forest produce and in that regard the villagers had a
grievance against him.
19. As mentioned supra, the spot where the alleged rape had
been committed and the spot from where the victim was forcibly
physically lifted by the accused were not deserted places,
inasmuch as in the normal course of a day, numerous
passersby and vehicles ply there. It is unlikely that no one had
noticed the victim being lifted and subjected to forcible sexual
intercourse. Though the victim narrated the entire incident to
her husband (PW3), he has denied before the Court that the
victim informed him about the commission of forcible sexual
assault on her. Firstly, the husband (PW-3) refutes that the
victim told him that she was lifted from the spot and subjected
to forcible sexual intercourse. Secondly, PW-3 has deposed that
the victim told him that the appellants had dragged the victim
on the way. And finally, he has also denied stating to the
25
Investigating Officer that the victim told him that while she was
returning home from the hotel, the appellants have committed
rape on her. The deposition of PW-3 as mentioned supra,
practically does not support the version of the victim. There is
no reason as to why PW-3, being the husband of the victim,
would contradict her version. Moreover, the victim has deposed
that she did not see the face of anyone clearly, at the time of
occurrence and that she did not recognize the faces of the
persons committing rape on her. As we have observed supra,
in the instant case, the contention of voice recognition cannot
be accepted. That apart, though PW-3 was informed by the
victim about the incident immediately afterwards, which is the
natural conduct of a victim, strangely he was never examined
by the police, as per his own admission, though he was
standing outside the Police Station all throughout the recording
of his wife’s statement. The victim alone was taken inside the
Police Station for reasons best known to the prosecution. In
that context, the contentions of the defence that there is a
likelihood of creating a false case against the accused assume
importance.
26
20. The evidence of the victim/prosecutrix and her husband
(PW-3) are unreliable and untrustworthy inasmuch as they are
not credible witnesses. Their evidence bristles with
contradictions and is full of improbabilities. We cannot resist
placing on record that the prosecution has tried to rope in the
appellants merely on assumptions, surmises and conjectures.
The story of the prosecution is built on the materials placed on
record, which seems to be neither the truth, nor wholly the
truth. The findings of the courts below, though concurrent, do
not merit acceptance or approval in our hands with regard to
the glaring infirmities and illegalities vitiating them, and the
patent errors apparent on the face of record resulting in serious
and grave miscarriage of justice to the appellants.
21. In the matter on hand, on going through the entire
material on record, we are of the clear opinion that the
prosecutrix apparently had motive to seek revenge against the
accused persons. The testimony of the victim in the peculiar
facts and circumstances of this case needs to be discarded,
since her testimony is a result of seeking revenge against the
27
accused and as her evidence is not free from blemish. The
prosecutrix’s evidence with regard to identification of the
accused was unworthy of credence as she has deposed that she
could not identify the faces of any of the accused persons,
coupled with the factum that no spermatozoa was found
evidencing recent sexual intercourse, as also there was no
injury on her body, except of course, a bruise on her cheek
measuring half a centimeter. No doubt, solely relying on the
version of the victim, a conviction can be recorded, but such
version should be reliable. If really the victim had deposed
about the incident to her husband immediately after the
incident, there is no reason for PW-3 being the husband of the
victim, to not depose about the same before the Court. The
testimony of PW-3 contradicts the story laid down by the
informant. At the cost of repetition, it can be observed that
firstly, PW-3 denies specifically that the informant told him that
she was lifted from the spot and subjected to forcible sexual
intercourse. Secondly, it is specified by PW-3 that the
informant merely told him that the accused were dragging her.
Finally, he also denies having stated to the Investigation Officer
28
that the victim told him that while she was returning from
hotel, the accused committed rape on her. The Courts have
accepted the voluntary statement of the victim while discarding
various other probabilities. The alleged scene of offence could
hardly be described as a deserted place or a secluded place for
the commission of such a ghastly crime. The spot where the
alleged rape was committed is practically near the market, and
near the main road wherein vehicles frequently ply and more
particularly when the day of the incident was a market day
which used to be busy up to 10.00 p.m. All the attending
glaring inconsistencies and improbabilities as also the other
evidence on record which demolishes the version of the victim
are conveniently ignored by the Trial Court and the High Court.
The Police have failed to recover the napkin which was used for
gagging the mouth of the victim. So also the knife allegedly
used by the accused Akshya Pradhan for threatening the victim
was not recovered. The knife would have contained the
fingerprints of the accused if it was really used by the accused.
A careful reading of the evidence of the prosecutrix and her
husband (PW-3) therefore leads us to the conclusion that the
29
case as made out by the prosecution appears to be concocted. It
cannot be said that the offence of rape has been proved beyond
reasonable doubt.
22. In our considered opinion, the Trial Court as well as the
High Court have convicted the appellants without considering
the aforementioned factors in their proper perspective. The
testimony of the victim is full of inconsistencies and does not
find support from any other evidence whatsoever. Moreover,
the evidence of the informant/victim is inconsistent and
self-destructive at different places. It is noticeable that the
medical record and the Doctor’s evidence do not specify
whether there were any signs of forcible sexual intercourse. It
seems that the First Information Report was lodged with false
allegations to extract revenge from the appellants, who had
uncovered the theft of forest produce by the informant and her
husband. The High Court has, in our considered opinion,
brushed aside the various inconsistencies pointed out by us
only on the ground that the victim could not have deposed
falsely before the Court. The High Court has proceeded on the
30
basis of assumptions, conjectures and surmises, inasmuch as
such assumptions are not corroborated by any reliable
evidence. The medical evidence does not support the case of the
prosecution relating to the offence of rape. Having regard to the
totality of the material on record and on facts and
circumstances of this case, it is not possible for this Court to
agree with the concurrent conclusions reached by the courts
below. At best, it may be said that the accused have committed
the offence of hurt, for which they have already undergone a
sufficient duration of imprisonment, inasmuch as they have
been stated to have undergone two years of imprisonment.
Accordingly, the appeal is allowed. The judgments of the Trial
Court as well as the High Court are set aside. The appellants
are acquitted of the charges levelled against them. They should
be released forthwith, if they are not required in any other case.
..………………………………..…….J.
[N.V. RAMANA]
..……………………………………….J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
AUGUST 29, 2018.
