Criminal Appeal (SJ) No.202 of 1999 Against the judgment and order of conviction and sentence dated 02. 07. 1999, passed by Shri Sanjay Kumar, 3rd Additional Sessions Judge, Purnea, in Sessions Trial No. 470 of 1995/ Trial No. 6 of 1999. Sheikh Naiyar, son of Sheikh Nasir, resident of Village-Dodharia, P.S. Baisi, District- Purnea. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. N. K. Agrawal, Senior Advocate. Mr. J. P. Bhagat, Advocate. Mr. D. N. Tiwari, Advocate. Mr. Avijit Sinha, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The victim is the informant aged about ten years. The prosecution case as alleged that she was grazing she goat to the north of the field near Tauli Chawk on 17. 03. 1995 at 12.30 hours in the afternoon, the appellant Sheikh Naiyar catch hold of her hand untie her pant gagged her mouth and committed rape. Blood oozing out of her private part. There was swelling in the 2 private part. The panty besmeared with blood. The victim cried out of pain. The accused started fleeing away leaving the victim. On hearing cry Jabul and Abdul ran to the place of occurrence, though, saw the appellant fleeing away. The victim disclosed about the occurrence. They chased to catch hold of the appellant. The victim was taken with the appellant to the Police station by car there statement of the victim was recorded. F.I. R. was lodged and investigation proceeded. 4. During investigation the victim was examined by the doctor. The police after investigation submitted charge sheet. After framing of the charge under Section 376 I.P.C. trial proceeded. P.W. 5 is the victim, Shahin. She supported the prosecution case that Naiyar raped her. She has further stated that Fazil, P.W. 3 Abdul, P.W. 1 and Jabul P.W. 6 came on hearing cry then she disclosed about the occurrence and Naiyar flee away. Naiyar was caught by them. He was taken to Police Station. However in her cross examination she has stated that witnesses were not present at the time of rape. They came after the occurrence. She got injured and while raping Naiyar has raped her with full penetration. P.W. 1, 3 and 6 have stated that on cry, they rush to the place of occurrence. They was Naiyar fleeing away and Shahin, the victim disclosed them about rape. 3 They saw the panty besmeared with blood. They chased and catch hold of Naiyar and took him to the Police station. P.W. 2 Akhtar Hussain. P.W. 4 is Sheikh Iliyas, grand-father of the victim also deposed to the effect that on hulla they ran to the place of occurrence and catch hold of him took him to the Police Station. P.W. 7 is the I.O. He has proved the signature on the Fardbeyan marked as Ext. 2/1. he has further proved formal F.I.R. marked as Ext. 3. Seizure list marked as Ext. 4 with regard to the panty. 5. P.W. 8 is the doctor who examined the victim on 18. 03. 1995 at about 4.35 P.M. However, the doctor in his finding has stated that he did not find any injury. He found hymen intact and no internal injury was found on the person of the victim. On pathological examination, no spermatozoa was found. He found the age of the victim as ten years old. He found no sign of rape. He has proved the injury marked as Ext. 5. However, he has stated that rupture of hymen is not sign of rape and if the penis touches the hymen it means to rape and in that case hymen may not rupture. 6. The defence has also examined two witnesses and has proved Ext. A complaint petition filed by the complainant Md. Naiyar on 27. 04. 1995 with regard to the occurrence dated 4 17. 03. 1995. 7. The defence of the accused-appellant that he is a Khalasi of a bus of one Satya Narayan Babu. He has some quarrel with grand-father of the victim Sheikh Iliyas (P.W.4) a few days prior to the occurrence in regard to fair of the bus. The grand-father of the victim had threatened him to teach him a lesson. On the date of occurrence, the appellant was selling betel in the meantime Sheikh Iliyas and Md. Tahir came dragged him from the shop and took him to the place of occurrence and assaulted and tied in electric pole. 8. The trial court taking into consideration the evidence of prosecution witnesses and defence set up, and held that prosecution has supported the prosecution case that appellant has raped her and other witnesses supported the prosecution case that they saw the appellant fleeing away on the cry of victim and witnesses catch hold of the appellant after chase. The trial court further held that defence set up by the appellant is not acceptable. The prosecution case cannot be disbelieved in the light of the medical evidence as the medical evidence is mere advisory in nature. The contradiction pointed out are minor in nature which does not go to the root of the prosecution case and relying on observation that corroboration does not 5 require for conviction because on the sole evidence of prosecutrix reported in A.I.R 1983 S.C. page 753, convicted the appellant and sentenced as mentioned above. 9. Learned counsel for the appellant however contended that occurrence took place on 17. 03. 1995, and except the Prosecutrix there is no eye witness to the occurrence. The evidence of the doctor is contrary to the evidence of the Prosecutrix which not only not supported the prosecution case but belies the prosecution story and the evidence of the Prosecutrix. In such circumstance conviction on sole testimony of prosecution without independent corroboration is not in the interest of justice. 10. Learned counsel for the State however, contends that victim is only ten years old and there is nothing in evidence to disbelieve her and defence version itself appears to be absurd. No one in Indian society will falsely impute rape or allege rape as it effect the reputation of family and have other far reaching consequence and defence set up is not acceptable. 11. Hence taking into consideration the respective submissions question for consideration as to whether prosecution has been able to prove the charges beyond reasonable doubt or whether evidence of the sole Prosecutrix 6 without any independent corroboration can be relied for conviction with independent corroboration. 12. In case of sexual offence law is well settled that corroboration of the evidence of the Prosecutrix is not the sine qua non for conviction in rape case i.e. corroboration of evidence of prosecution is not essential before there can be conviction. It is also established that a victim of rape case can not be treated as accomplice requiring corroboration. However, it is also well settled that rule of admissibility of the corroboration should be present in mind of a Judge as uttered in Rameshwar Vrs. State of Rajasthan reported in A.I.R. 1952 S.C. page 54 and at page 57 and reiterated in decision reported in A.I.R. 1983 S.C page 753 . However it has been observed that refusal to act on testimony of victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. It is relevant to quote observation in para 11 of the decision; “ We are therefore of the opinion that 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 the medical evidence, where, having regard to the 7 circumstances of the case, medical evidence can be expected to be forthcoming…” 13. In decision reported in 2001 (6) SCC page 71, it has been held that conviction for offence under Section 376 I.P.C. rape can be based on sole testimony of the Prosecutrix corroborative by the medical evidence and other circumstance such as report of chemical examination is found to be natural trust worthy and worthy of reliance it has been observed, “if evidence of the Prosecutrix inspire confidence it must be relied upon without seeking corroboration of her statement in material particular. If for some reason, the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lead assurance to her testimony, short of corroboration require in case of accomplice. The testimony of the Prosecutrix must be appreciated in the background in the entire case and trial court must be alive to its responsibility be sensitive while dealing with the case involving sexual molestation……” 14. However, taking into consideration the evidence and material on record in the light of the principle enunciated 8 here, prosecutrix is the only eye witness of the occurrence. However, other witnesses have stated that, though, they saw the appellant fleeing away and they are not eye witness of the occurrence of rape. They only stated that they learnt from the Prosecutrix. However, the victim Prosecutrix was examined by the doctor on the very next day of the occurrence almost within twenty four hours. The age of the Prosecutrix was ten years old and she deposed that the appellant raped her and there was full penetration causing swelling on his private part and blood oozed out from private part by which her panty besmeared with blood. She made cry out of pain. However, doctor, P.W. 8, in her evidence did not find any injury on her person nor found blood oozed out nor found hymen teared rather doctor found hymen was intact. She did not find any sign of rape. 15. Having regard to the fact that victim is only ten years old and there is allegation that appellant who was 25 years old having made full penetration causing swelling and blood oozing out, but the doctor having not found any injury whatsoever, nor found any blood oozing out. It is not only evidence of the doctor is not corroborative rather it belies the prosecution case about rape. The panty it is stated to have been besmeared with blood neither produced in court nor any 9 chemical analysis report produced in court. Hence the probability factor against the prosecution. 16. However the trial take into consideration that if the penis touched the hymen it is rape and in such circumstance the rape is committed. However here the case of prosecution is not as such rather the case of prosecution that there is full penetration. There was swelling and blood oozed out from private part and panty besmeared with blood, but the prosecution story is belied from the medical evidence. Hence in such circumstance, it is not safe to rely on the evidence of the Prosecutrix uncorroborated by independent evidence, sole probability factor of the prosecution case goes against the prosecution. 17. The fact that defence set up by the accused persons are not as such to inspire confidence. However, even defence set up has not been found to be probable, but the prosecution case cannot be accepted on that score, but the prosecution is required to prove the case by cogent, reliable and unimpeachable evidence to record conviction. 18. Hence merely because defence set up by accused person is not acceptable is no ground to accept the prosecution case on that score. The prosecution has to establish it case 10 beyond reasonable doubt by cogent, reliable and unimpeachable evidence. Hence having regard to the circumstance, the appellant is entitled for benefit of doubt and hence I find and hold that prosecution has not been able to prove the charges beyond all reasonable doubt and hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 20th October, 2011. NAFR/m.p. ( Gopal Prasad, J.)