State v. Swatantra Bharat & Ors.

9. Counsel for the respondents admitted that it is true that sole testimony of the prosecutrix in a case of rape can be based for conviction of the accused subject to same inspires confidence of the Court, but in instant case, the sole testimony of the prosecutrix is not sufficient to establish the case of rape against the respondents as the medical evidence does not corroborate with the oral testimony of the prosecutrix and the above alleged case is based on the foundation of malicious slandering the respondent because both the families were having enmity due to a property issue and the respondents were also threatened by the father of the prosecutrix that they will be implicated in a false case. Accordingly, this Court may not interfere with the well-reasoned judgment passed by the learned Trial Court acquitting the respondents.

10. We have heard the rival contentions of the parties and given our thoughtful consideration to the arguments advanced by them and have also perused the testimonies of the witnesses as well as the exhibited documents carefully.

11. It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault installs the confidence in Court, the same can be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the given circumstances.

12. In Mohd. Ali @ Guddu Vs. State of Uttar Pradesh, reported in (2015) 7 SCC 272, the Apex Court has observed as under: -

the evidence of the prosecutrix is not of such quality which can be placed reliance upon.

30. True it is, the grammar of law permits that 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 inspite confidence, and the circumstantial evidence remotely does 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 appellant-accused 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." Testimony of Prosecutrix

13. Keeping in view the aforesaid settled law, the moot point involved for consideration in this appeal is whether evidence adduced by the prosecution on rape, particularly testimony of prosecutrix is trustworthy, credible and worthy of reliance.

14. As per the story set up by the prosecution, the police mechanism came into action immediately on registration of DD.No.17/A on the intervening night of 25/26.02.1988 on receipt of the information “that a girl has been molested at H.No. 427, School Marg, Chandni Chowk, Delhi." In her initial statement recorded under Section 161 Cr.P.C. by the police, the prosecutrix alleged that on the fateful night she was sleeping in her bedroom. At about 1:30 a.m., a young boy of average built, entered in her bedroom whom she failed to identify due to darkness in the room, had forcibly pressed her neck, tightened her legs and thrust a piece of cloth in her mouth, she tried to escape but all in vain. She further alleged that the boy forcefully committed rape upon her to which she became unconscious. On regaining her consciousness, she went to her parent's room and apprised them about the incident. The prosecutrix raised suspicion on the respondents being Chuttan, Haria, Kulia and Somnath, living on the first floor of the building as few days back they extended threat to attempt such offence.

15. On the next date i.e. on 27.02.1988, the prosecutrix gave a written complaint EX.PW1/N to the concerned Station House Officer, alleged that: "I was dazed and terrified and had not regained consciousness fully after the incident when the first statement was taken. As at that time, I could not recall the whole incident, the statement appears incoherent and in bits. After taking some medical aid, now I am in full senses and can recall the whole incident. Chuttan gagged my mouth & tried to strangulate me whereas Haria was holding my hand & other parts of the body down. There were four people in the room. I tried to scream but the pressure on my mouth & throat was too severe. One of the men was forcibly removing my pajamas & I could feel some hand on my body. The other two men were Kalia & Sobhraj (Rampratap's servants). Then after few minutes I passed out. I am xxxx a couple of muffled screams escaped my mouth during the tussle."

16. The prosecutrix was produced before the concerned Metropolitan Magistrate and her statement (Ex.PW1/M) was recorded under Section 164 of the Cr.P.C. wherein she alleged that police officials have not recorded her first statement on her dictation and favored the respondents. She alleged that: "15. The true incident which I would like to relate is that on the night of 25th February, I was sleeping in my bedroom as usual.

16. In the middle of the night, I heard some noises and felt a hand around my neck.

17. I woke up and recognized Chuttan, practically on me trying to strangulate me.

18. The street light and some of the verandah light were ______ from the window and door.

19. I tried to struggle free from Chuttan and at that time noticed the presence of three others in the room when I did not recognize at that time.

20. All four of them caught hold of me hight over the _______ while I struggled to free myself of them.

21. I tried to scream out of terror and shock but only muffled cries could escape out of my throat.

22. Then Chuttan said "हरियाकपडाडे".

23. Chuttan was supplied with the cloth and he gagged me with it.

24. Thereafter, Chuttan said "हरिया, इसक े हाथ पकड ले, साली बहूत हाथ माि क े है"

25. I again tried to struggle free again and Chuttan exclaimed "क ु लई, शोभिाज इसक े पाांव मजबूती से पकड लो."

26. They were using very abusive and vulgar language which I cannot state here.

27. The pressure on my neck and xxx was very tight on account of which I could not move my head.

28. Then there were severe pain my body.

29. They forcibly took off my pajami and underwear.

30. At that time, I felt that none except God could save me.

31. I felt severe pain in my groin where something was intruding repeatedly. I understood I was being raped.

32. The assaulters appeared to be in a state of complete frenzy and continued to press my neck more and more tightly.

33. I thought they wanted to kill me after the sexual assault and felt that my end was imminent."

17. It is relevant to highlight that the prosecutrix in her 164 Cr.P.C statement has made improvement and exaggerations and has stated that on the night of 25-26th February 1988, she was in not in a proper state of mind with physical vulnerability, due to which the statement which was recorded by the police cannot be declared as her true statement and the same FIR is registered on my aforesaid statement but the same was neither written under her dictation nor the same was read over by her. Accordingly, she is specifying that the police have instructed her to not disclose the names and specifically implicate Chuttan, Haria, Kulia and Sobraj as the same will bring shame and embarrassment to her family. She has further stated that in the middle of the night she had felt a hand wrapped around her neck and she had recognized accused chuttan, who was trying to strangulate her neck. Further she is describing a detailed version with regard to the alleged role and involvement of each and every accused person in the commission of the alleged offence and has stated that chuttan had instructed Haria, Kulia, Sobraj and said that “iske hath pakadhlo, Sali bahot hath maar rahi hain, kulia sobraj iske paov majhbooti saih pakar lo”. Further she has deposed that she was able to recognize the accused person because of the street light and the light in the veranda, whereas in her statement recorded vide Ex.PW1/A she is categorically stated that she was not able to see the faces of the accused persons due to the immense darkness in her room

18. The prosecutrix entered into the witness box as PW-1 and during her examination-in-chief recorded on 15.01.1991, she deposed that: - “I reside in House No. 427 Esplande Road Chandni Chowk, Delhi alongwith my parents. I know all the accused persons present in the court namely Chuttan @ Swatantra Bharat, Kulia, Sobraj @ Somnath, and Haria. We have been residing on the ground floor, while these accused persons have been residing on the first floor of the same building. In the intervening night 25/26th February,1988, I was sleeping in my bed room. That bed room had three doors. Out of them only one door of that bed room was bolted while the other two doors of that bed room remained unbolted. In that night at about 1.30 am, while I was sleeping, I felt a hand around my neck. Feeling that I woke up and found accused Chuttan @ Swatantra Bharat was trying to strangulate. Again said press my neck. He was strongly pressing my neck. I tried to scream, but it was stuffled. Accused Haria gave some cloth to accused Chuttan @ Swatantra Bharat who gagged my mouth with that cloth piece. Accused Haria was also in my bed room. I tried to struggle to free myself but accused Haria caught hold of my hands. I was further struggling with my legs to free myself. Accused persons Kulia and Sobraj @ Somnath caught hold at my legs. Accused persons Kulia and Sobraj @ Somnath were also present in my bed room, Accused Kulia pulled out my pyjama and underwear; since I was struggling to free myself accused Sobraj @ Somath helped Kulia in removing my pyjama and underwear. Then accused Kulia forcibly raped me. I was in great pain agony and shock. Accused Chuttan @ Swatantra Bharat were choking my neck. His grip was so hard that I could hardly breath. I felt num. I was practically semi-conscious. While accused Kulia was raping me accused Chuttan was choking my neck. After Kulia raped me accused Chuttan further pressed and choked my neck and I became semi-conscious, and num. For a few minutes, I could not notice anything and had gone mentally blank. Thereafter, I regained the strength and consciousness and removed the cloth piece from my mouth. With great difficulty, I could get up from my bed and I found that my private part was bleeding/my bed sheet was wet with semen and blood. My pyjama and underwear were lying on the floor. On regaining consciousness I did not find anyone of the accused persons in my bed room. I was breathing irreatically. I was dazed and shocked. I went to the bed room of my father and mother, who were sleeping at that time. I awaking my mother and narrated the incident to her. My father also woke up meanwhile. My father also heard me while I was narrating the incident to my mother. I collapsed on the bed of my mother. Then my parents informed the Police. The Police arrived. I told the Police as to what had happened. The Police did not record my statement in my presence, but obtained my signature at point A on Ex.PW-1/A. While it was bearing the contents the police had taken into possession my bedsheet; pyjama, my underwear, a cloth piece which I was gagged, which was a banian and the hairs lying on my bed sheet and a leer (a small strip of cloth) of jogia colour which was lying on my bed, after inspecting the place of occurrence. The Police put these items in separate packets and sealed them with the seal of JC. The Police had seized these items in my presence and I had signed my seizure memos. I had signed Ex PW1/B to PW1/H, at the time of the seizure of the exhibits from my bed room. I can identify the items which were seized from my that room by the Police.

XXXXXXXX On my neck there were marks of finger and nails of throtlling my neck. I had abrasions on my face. I had abrasions on my face, Ex PW1/J, PW1/K and PW1/L are my photographs. These photographs of mine were snapped on 2.3.88 and 3.3.88. In these photographs my injuries on my neck and face are visible. My statement was recorded by the Metropolitan Magistrate. Ex.PW1/M is my statement. Every page of Ex.PW1/M bears my signature. In my bed room at the time of the incident light was there from the street light and from the verandah. The bulb of the verandah on the first floor was on and from there the light was coming in my bedroom at the time of the incident. To the draftsman I had shown the place of incident. I had made an application to SHO, P.S. Kotwali which is Ex.PW1/N which bears my signature at point A. Police got me medically examined. I was medically examined in the morning of 26.02.1988. I was again medically examined on 02.03.1988 and 03.03.1988.”

19. From the aforesaid testimony, it is relevant to emphasize that according to her the statement recorded U/s 161 Cr.P.C. was neither written under her dictation nor the same was read over to her. During cross examination, she admitted that her first statement was recorded by the police in the presence of her parents and the same was signed by her after the same was treated to be correct. Relevant portion from her cross-examination is reproduced below: - “My statt.was first recorded at my house by the Police after the incident. I told my statt. to the Police who did not record the same on my dictation and recorded the same itself thereafter (volunteered). My parents were present at that time. It is correct that Ex.PW1/A was signed by me after the same was written. It was signed by me in my house. I did not state the said statt. that all of sudden a person of medium health and who could not be identified by me on account of darkness. (confronted to Ex.PW1/A where it is stated to be so recorded i.e. portion A to A of Ex.PW1/A). It is correct that I stated before the police that the light of my house was off. I did not tell the police that the said boy pressed my neck and had also overpowered me. (confronted to portion B to B in Ex.PW1/A where it is so recorded). I did state before the police that I tried to raise an alarm but the said men had put the cloth in my mouth and I tried to free myself. I did tell the police that the said men without my consent and forcibly committed rape on me. I did state to the police that thereafter I became unconscious. I did not tell to the police that when I gained conscious I was only in shirt. (confronted to portion C to C in Ex.PW1/A where it is so recorded). I did tell the police that I went to my parents room and narrated the incident to them. I had told the police that when I woke up I found accd. Chuttan @ Swatantar Bharat was trying to strangulate me and press the neck. (confronted to Ex.PW1/A where the name of said accd. is no recorded). I did tell the police that accd. Haria gave a cloth to accd. Chuttan @ Swatantra Bharat who gagged my mouth with said cloth. (confronted to Ex.PW1/A where it is not so recorded). I had told the police that accd. Haria was also in my bed room (confronted to Ex.PW1/A where it is not so recorded). I did tell the police that I tried to free myself and that Haria caught hold of my hand. (confronted to Ex.PW1/A where the name Haria is not mentioned). I had told the police that Haria had caught of my hand. I did tell the police that I tried to free myself, but accd. Kulai and Sobhraj @ Somnath had caught hold of my legs. (confronted to Ex.PW1/A where the said names are not recorded). I did tell the police that accd. Kulai and Sobhraj @ Somnath were present in my bed room (confronted to statt. Ex.PW1/A where it is not so recorded). I did tell the police that accd. Kulai pull down my pyjama and underwear (confronted to Ex.PW1/A where it is not so recorded). I did tell the police that accused Kulai pulled out my pyjama and underwear since I was struggling to free myself, accd. Sobhraj @ Somnath and Kulai helped Kulai in removing my pyjama and underwear (confronted with Ex.PW1/A where it is not so recorded). I told the police that accd. Kulai forcibly raped me. (confronted to Ex.PW1/A where the name of person is not recorded). I told the police that accd. Chuttan @ Swatantar Bharat was choking my neck and his grip was so hard that I could hardly breath. (confronted to Ex.PW1/A where the name of accd. is not recorded). I told the police that I felt num and was practically semi-conscious and while accd. Kulai was raping me accd. Chuttan was choking my neck. (confronted with Ex.PW1/A where the word unconscious is mentioned and names of accd are not mentioned and two persons are not named). I told the police that after Kulai raped me, accd. Chuttan further pressed & chocked my neck and I became and num-consciousness. (confronted to Ex.PW1/A where it is not so recorded). I told the police that for a few minutes, I could not notice anything and had gone mentally blank.(confronted to Ex.PW1/A where it is not so recorded). I told the police that thereafter I regained the strength and consciousness and removed the cloth piece from my mouth.(confronted to Ex.PW1/A where the portion of removal of cloth piece from mouth is not mentioned). I told the police that I could get up from my bed with great difficulties and found my private part bleeding, my bed sheet was wet with semen and blood; my pyjama and underwear were lying on the floor; on regaining consciousness I did not find any one of accused persons in my bed room and I was bleeding eradically and I was dazed and shocked. (confronted to Ex.PW1/A where it is not so recorded). I told the police that I collapsed on the bed of my mother. (confronted to Ex.PW1/A where it is not so recorded). I did not tell the police that I had been read over and admitted my statt as correct. (confronted with portion D to D of Ex.PW1/A where it is so recorded). I told the police that cloth piece with which I was gagged was a banyan. (confronted to Ex.PW1/A where it is not so recorded). I did not tell the police about the stretches on my neck and I had abrasion on my face. It is wrong that photos are incorrect photos with manipulation of stretches on my face. I told the police that light was coming to my room from outside. (confronted to Ex.PW1/A where it is not so recorded). I told the police that the bulb of verandah on Ist floor was on and the light was coming from there to my room. (confronted to Ex.PW1/A where it is not so recorded). It is wrong that I had not told the place of occurrence to the draughtsman. I made the application to SHO on the next day i.e. on the next day of the incident. It is wrong that the same was a tutored application. It is wrong that accd. persons did not commit rape on me or that deposing falsely in order to implicate them in this case. I told the M.M. in my statt. U/s 164 Cr.P.C that I noticed the presence of three more persons whom I did not recognize at that time.

20. A reading of aforesaid cross-examination goes to show that the prosecutrix was confronted with her preliminary statement Ex.PW1/Aon material aspects. She admitted that in her statement recorded under Section 164 Cr.P.C. She noticed the presence of three persons in the room, whom she failed to recognize due to darkness, whereas in her complaint Ex.PW1/N addressed to the Station House Officer and in her examination-in-chief recorded before the Court, she categorically leveled allegation on each of the respondent and their role in the alleged offence. She was further cross examined on 11.04.1991, wherein she stated that she has not leveled allegation of rape against the respondent Kulia, in her complaint addressed to the Station House Officer, she admitted the fact that everything was mentioned by her in the original statement. Relevant portion from her cross examination dated 11.04.1991 is reproduced below: “I do not remember that after the FIR if I had written a detailed complaint mentioning all the circumstances to SHO. But I did write a complaint to the police in this behalf. I made the said complaint to SHO as we were receiving constant threats from the accd. Person after the incident. I had not read Ex.PW1/A. I had not read it before making 2nd complaint to SHO as I do not remember. I do not remember if I had written in my complaint (2nd complaint) to SHO of the light coming to my room from the verandah and the street. I did not mention in my end complaint to SHO about the rape by Kalia (Volunteered I had told the entire facts to the police at the first instance).”

21. Auxiliary, the most substantial testimonies are of PW-2 (father of the victim) and PW-5 (mother of the victim) as the same support the case of the prosecution. The victim in her aforesaid testimony deposed that she had narrated the entire incident to her parents after regaining mental consciousness. PW-2, father of prosecutrix deposed that his daughter has named the respondents Chuttan@Swatantra Bharat and Kulia but she failed to mention the entire details about the incident and manner in which she was assaulted. He further deposed that according to her daughter/prosecutrix respondents Chuttan and Kulia were responsible for the commission of the alleged offence. Relevant portion from the testimony of PW-2 dated 11.08.1994 is reproduced below: - “It was about 1.30/2.P.M (midnight) my elder daughter Monika came in our bedroom where I and my wife were sleeping. She woke my wife. She told me and my wife that the four accused person present in the court had forcibly entered in her room and particularly accused Chutan and Kulai had attempted to kill her and had committed rape upon her. She was dazed on account of the incident. On bearing her my daughter Chandrika also got up. I think Monika did not give entire details about the manner in which assault was committed upon her. She mentioned particularly names of Chutan @ Swantantra Bharat, Kulai, Haria and Somnath. She told me that the role played by the chuttan more than that of any other accused present in the court. Monika told that Chutan @ Swantantra Bharat had tried to strangulate her by pressing her neck with pressure and when she tried to raise and alarm her mouth gagged. She further told that after gagging her mouth, rape was committed by Chutan and Kulai”

22. Further PW-5, mother of the prosecutrix deposed that her daughter on the date of incident has stated that the respondent Swatantra Bharat@Chuttan along with other respondents came to her room and one of the respondents sexually assaulted her. Relevant portion from the chief examination of PW-5 is reproduced below: “At the time of incident I was living at the aforesaid address with my husband and two daughters namely Manika Jain and chandrika Jain My daughter Manika was a law student at the time of occurrence. On the night intervening 25/26-2-88, I was sleeping in the room. At about 1.30 am and 2 a.m. my daughter manika came to my room and woke me up. At that time she was completely dazed and shocked and she was also sobbing. Hair was also entangled. On hearing her voice, my husband who was also sleeping in my room also got up and we also noticed a deep scars on the neck and face of my daughter. My daughter with a great difficulty in speaking told us that when she was sleeping in her room, she felt somebody was pressing her neck and she further told that accused Swatantra Bharat @ Chuttan present in court had pressed her neck. Accused Swatantra Bharat had come with three other accused present in court. She further stated that one of the co-accused person had gaged her mouth with a piece of cloth. She also told me that when she tried to scream accused Swantantra Bharat tried to strangulate her. She struggled to free herself from the clutches of the accused person but could not make herself free and all the four accused persons had caught hold of her and one of them had raped her.”

23. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.

24. On careful analysis of the testimony of the prosecutrix, we find a large number of contradictions, inconsistencies, concealment, improvements and exaggerations in her statement which as noted above, which casts shadow of doubt and leads us to find it difficult to rely upon her version. However, let us see whether any other evidence has been adduced by the prosecution on record to support the version of the prosecutrix. Medical Evidence

25. Having discussed the testimony of the victim and other prosecution witnesses in detail, we deem it appropriate to examine whether the medical evidence adduced by the prosecution finds support from the oral testimony of the victim. Dr. Krishna Tiwari (PW-6), Civil Hospital, Delhi examined the victim on 28.02.1998 and has proved his report as Ex.PW6/A and opined that "no external injuries" were present on the body except on the neck of the victim. The relevant portion from her statement recorded on 23.09.1997 is reproduced below: “On 26.02.88 I examined Monika aged about 27 yrs. female, case referred to me by Dr. RK Gupta with the alleged history of rape by Haria, Kulia, Sobraj and Chuttan on 26.2.88 at 1:30am. Mentioned history at the age of 13 years and her cycles was 5 to 7 days upon 32 days. Last menstrual period was 9.2.88. she was unmarried. On examination there is a mark of external injury on neck and there is a abrasion and nail mark on neck. No other external injury present in body. Per-abdomel nothing abnormal detected. Per vagina examination vulva normal, public hairs not mated, hymen torn posteririally at 5’O Clock position, small laceration and fresh bleeding from edges of hymen, blood stains present on clothes. Vagina very tight-just admit one finger. Per speculum examination-patient not allowing per speculum examination as she is very tender. Per Rectum nothing abnormal detected. Opinion-is-Attempted rape. Investigation sent-public hair for sperm, hairs from vagina and parinium is taken for sperm identification. My report is Ex.PW6/A bearing my signature at point ‘A’ As per report and examination of the patient I can say there was partial penetration, on monika.

26. Further, as per the case of the prosecution, the prosecutrix was having marks of finger and nails on her neck and tendered photographs Ex.PW1/J, PW1/K and PW1/L taken on 02.03.1988 and 03.03.1988. Thereafter, the prosecutrix was again medically examined by Dr. Bhanu Pratap, ENT Specialist, Civil Hospital Delhi (PW-12), wherein the doctor had opined that the abrasion marks over her neck could be possibly caused by a blunt force or pressure and the same were opined as simple injury in nature. The relevant portion from his statement recorded on 01.11.1999, is reproduced below: “On 2.3.88 I was posted in Civil Hospital Delhi as ENT Specialist. I examined Monika Jain brought by ACP Crime Yami Hazarika and examining her I gave the opinion that was abrasion over the neck is possible by application of blunt force or pressure by the hand during the process of strangulation. Duration of injury was 1 week back. My report is Ex.PW.12/A bearing my signature at point ‘A’ xxxxxxx by Sh. LN Shukla, Advo. for accused Swatantra Bharat. The injury was visible to a naked eye. It is possible that the estimation about duration of injury can vary by 2/3 days on either side. The injury was simple in nature.”

27. It is also pertinent to examine expert's report on the exhibits forwarded to the Forensic Science Laboratory for its Scientific and Chemical examination. Following exhibits were sent for examination: “Exhibit 1: One dirty brown Underwear. Exhibit 2:One dirty brow Underwear. Exhibit 3: One dirty brown underwear Exhibit 4: One Dirty stripped underwear Exhibit 5a and 5b: Two micro slides having whitish smear in the middle. Exhibit 6: Numerous strands of small black hair described as “public hair of victim Exhibit 7: one dirty cut underwear having brownish stains at places Exhibit 8: One dirty bed sheet having a few faint brownish stains at places Exhibit 9: A bunch of black hair described as “Hair from floor” Exhibit 10: Few strands of black hair described as hair from bed of monika Exhibit 11: Numerous strands of black hair described as “HAIR OF Kalai Exhibit 12: Numerous strands of black hair described as “HAIR OF Haria Exhibit 13: Numerous strands of black hair described as “HAIR OF Shobnath Exhibit 14: Numerous strands of black hair described as “HAIR OF Swatantra Bharat Exhibit 15: one dirty sleeveless banian having brownish stains at places Exhibit 16: Numerous strands of small black hair described as “cut public HAIR of Swatantra Bharat Sharma Exhibit 17: Small gauze cloth piece having brown stains described as “Blood of Swatantra Bharat Sharma. Exhibit 18: Small gauze cloth piece having a few small sized faint brown stains at places described as “Control sample” Exhibit 19: Few Strands of small black hair described as “plucked public hair of accused Swatantra Bharat”

27. The result of analysis of CFSL Report dated 27.06.1998 was concluded with the following datum:

1. Human Semen was detected on exhibits 4, 5a, 5b and 8

2. Semen could not be detected on exhibits 1,2,3,6,[7] and 15

3. Regarding query no. 5 on age of seminal stain, no option is offered from this division of the laboratory.

4. Hairs In Exhibits 6,9,10,11,12,13 And 14 were identified To Be Human In Origin. However, Hairs in exhibits 9 and 10 were found to be dissimilar with the hairs in exhibits 6,11,12,13 and 14, in most of their morphological and microscopical characteristics.

5. Hairs in exhibits 11, 12, 13, & 14 were found to be dissimilar with the hairs in exhibits 6 in most of their morphological and

6. Results of serological analysis from serology division of this laboratory is attached herewith.

28. And the result of CFSL Report dated 18.07.1998 was concluded with the following outcome:

1. Blood was detected on exhibits 17.

2. Blood could not be detected on exhibit 18

3. Hairs Could Not Be Detected on Exhibits 7 and 8 (Vide this office report no. CFSL.88/B-1028 dt.27.6.88) Hairs in exhibits 16 and 19 were identified to be human in origin. However, hair in exhibit 9 and 10(Vide this office report no. CFSL.88/B-1028 dt.27.6.88) were found to be dissimilar with hair in exhibits 16 and 19 in most of their morphological and

4. Result of serological analysis from serology division of this laboratory is attached herewith.

29. Perusal of the CFSL report goes to show that the hairs in Exhibit- 9(A bunch of black hair described as Hair from floor) and Exhibit- 10 (Few strands of black hair described as hair from bed of Monika) were found to be divergent with the hairs in Exhibit-6 (Numerous strands of small black hair described as public hair of victim), Exhibit-11(Numerous strands of black hair described as hair of Kalia), Exhibit-12(Numerous strands of black hair described as hair of Haria), Exhibit-13 (Numerous strands of black hair described as hair of Shobnath) and Exhibit-14(Numerous strands of black hair described as “hair of Swatantra Bharat), in their morphological and microscopically characteristics.

30. Consequently, as per the case of the prosecution, the bed sheet of the prosecutrix was wet with blood and semen stains but no blood was detected on the bed sheet as the same was not found on Exhibit- 18(Small gauze cloth piece having a few small sized faint brown stains at places described as “Control sample”). Moreover, no semen was detected on Exhibit-1(One dirty brown Underwear), Exhibit-2(One dirty brown Underwear), Exhibit-3(One dirty brown underwear), Exhibit 6(Numerous strands of small black hair described as “public hair of victim”), Exhibit-7(one dirty cut underwear having brownish stains at places) and Exhibit-15(one dirty sleeveless banian having brownish stains at places), but the same was detected on Exhibit-4(One Dirty stripped underwear), Exhibit-5a & Exhibit-5b(Two micro slides having whitish smear in the middle) and Exhibit-8(One dirty bed sheet having a few faint brownish stains at places) but the age of the semen stains were not categorically ascertained by the CFSL report.

31. With regard to the evidentiary value of the medical evidence, the Hon’ble Supreme Court of India in a very recent judgment titled as Balvir Singh Vs State of Madhya Pradesh (Crl. A. 1115/2010) decided on 19.02.2019, has specified that oral evidence always has supremacy over medical evidence as the latter can only be considered as opinionative in nature. Relevant part from the aforesaid judgment is extracted below:

37. Thus, the testimony of the prosecutrix has to be consistent and in line with the case of the prosecution, as it cannot be always presumed that the statement of the prosecutrix is always true and without any embellishment. The courts thus, at the same time, should bear in mind that false charges of rape are not uncommon. There have also been rare instances where a person has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability.

38. The Hon’ble Apex court in Criminal Appeal No. 544 Of 2018, titled as Sham Singh Vs The State Of Haryana, decided on 21.08.2018 has laid down the observation which needs to be taken into consideration while analyzing the elements of false allegations in the case of rape because the same can cause equal distress, humiliation and damage to the accused. Relevant portion from the aforesaid judgment is extracted below:

39. Further, the Division Bench of this Court in Crl. A. 660/1990 titled as Rohit Bansal Vs State decided on 29.05.2015, has discussed that there is no hesitation in establishing that rape causes great suffering and embarrassment to the prosecutrix contrarily false implication of committing a rape also results in defaming the reputation and social dignity of the accused. The germane portion of Rohit Bansal (Supra) is extracted below:

40. Accordingly, keeping in mind the aforementioned set principles in such matters it is crucial to examine whether there is a possibility of false implication in the presence matter. Subsequently, in the statement recorded under Section 313 Cr.P.C., the respondent Swatantra Bharat denied all the allegations made against him and stated that he has been falsely implicated in the present case because of a property dispute between the family of the victim and his family. Relevant Portion from his statement dated 24.03.2000 recorded under Section 313 Cr.PC is reproduced below:

41. Thus, there is no denial that the respondents and the father of the prosecutrix (PW-2) were having certain property dispute and litigation was pending in the Court. Accordingly, we do not have any hesitation to conclude that there is every possibility of false implication of the accused (respondent herein) in this matter to take revenge against his family because of the longstanding disputes inter se between the two families. It is pertinent to mention that the respondent clarified that he is neither known by name 'Chuttan' nor he has any nick name. He is only known as 'Swatantra Bharat' and in support of this contention the respondent has brought on record his ration card and various other documents which support his claim that he is not known by the name of 'Chuttan'.

42. Accordingly, to conclude we deem it appropriate to point out that the DD.No.17/A was registered on the intervening night of 25/26.02.1988 on receipt of the information “that a girl has been molested at H.No. 427, School Marg, Chandni Chowk, Delhi. The first and initial statement Ex.PW1/A was recorded by police wherein she stated that on the night of the alleged incident at about 01:30 am one young boy of average built whom she could not see due to darkness, had forcibly pressed her neck, tightened her legs and had thrust a piece of cloth in her mouth. She further stated that the boy had forcefully committed rape and penetrative sexual assault on her.

43. Further, in her statement Ex.PW1/N to the SHO, she introduced a new version and alleged that when her first statement was recorded by the police, she was not in a fit state of mind and was dazed and terrified. Subsequently, she was not able to regain her consciousness after the alleged incident, “due to which she was not able to recall the full incident. It was only when she had taken some medical aid and supplements, she was able to gain her full senses and also been able to recall the whole incident.” In her statement, she clarified that “it was Chuttan who had gagged her mouth and initiated in strangulating her neck, whereas Haria was assisting the other respondents and was holding her hands and other parts of her body. Other respondents were also present in the room and one of them was removing her pyjama. She also identified respondents Kulia and Sobraj@Somnath.

44. However, when her statement Ex.PW1/M was recorded under Section 164 of the Cr.P.C, she made improvements and stated that she was able to recognize the accused person because of the street light and the light in the veranda’, whereas in her statement Ex.PW1/A, she categorically stating that ‘she was not able to see the faces of the accused persons due to immense darkness in her room’. Further, the prosecutrix had stepped into the witness box as PW-1 and deposed that Kulia was the person who had raped her, whereas Chuttan assisted him by choking her neck. Subsequently, it is relevant to highlight that the prosecutrix was further cross examined on 09.04.1991, wherein she deposed that her initial statement Ex.PW1/A was recorded by the police in the presence of her parents and admitted her signatures thereon.

45. Therefore, it becomes difficult to rely upon the contention of learned APP of the state that the prosecutrix was not in a fit state of mind at the time of recording her first and initial statement and the same holds no ground as the same is negatived by the fact that the same was signed by her in the presence of her parents. The prosecutrix was a law student and the father of the prosecutrix Mr. Naresh Kumar Jain (PW-2) is himself a lawyer which evidently establishes that the family of the prosecutrix was not illiterate and was fully aware about the consequences of the aforesaid crime. Therefore, we do not have any hesitation to reach the conclusion that there is every possibility of false implication of the accused persons (respondent herein) in this matter to take revenge against his family because of the long-standing property dispute inter se between the two families. Conclusion

46. From the material available on record, we find that the testimony of victim fails to inspire confidence and the same cannot be relied for the conviction of the respondent. Her testimony is full of inconsistencies, concealment, improvements and exaggerations, which casts a shadow of doubt and has led us to find it difficult to rely upon. In the instant case, the testimony of the prosecutrix is not natural and consistent with the case of the prosecution. Her version has no correlation with other supporting material being medical, scientific and expert evidence. After rescanning the entire case in its right perspective, we are of the firm view that even if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed.

47. In the background of such a scenario, we are of the view that the prosecution has not succeeded in establishing its case against the respondents. Hence, we find no infirmity in the judgment passed by the learned Trial Court and consequently there exists no cogent reason to interfere with the same. Therefore, the prosecution has failed to establish the charges against the respondent punishable under the Indian Penal Code

48. Accordingly, the appeal is dismissed.

49. Trial Court Record be sent back along with a copy of this order.

50. A copy of this order be also sent the Superintendent Jail, Tihar Jail.

SANGITA DHINGRA SEHGAL, J SIDDHARTH MRIDUL, J MARCH 29, 2019 afa