Criminal Appeal (SJ) No.331 of 1997 Against the judgment and order of sentence dated 06.12.1997 passed by Narendra Kumar Srivastava, 5th Additional Sessions Judge, Siwan, in Sessions Trial No. 112 of 1996/301 of 1997. Mahendra Yadav, aged about 36 years, son of Mathura Yadav, Resident of Village- Hasanpurwa, P.S. Husainganj, District- Siwan. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 23 of 1998 Against the judgment and order of sentence dated 06.12.1997 passed by Narendra Kumar Srivastava, 5th Additional Sessions Judge, Siwan, in Sessions Trial No. 112 of 1996/301 of 1997. Rajdeo Yadav, aged about 19 years, son of Briksha Yadav, Resident of Village- Khodaibari, Tola Karnaiya, P.S. Husainganj, District- Siwan. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant/s : 1. Mr. K. B. Verma, Advocate. 2. Mr. Manoj Kumar, Advocate. For the Respondent State : Mr. Sujit Kumar Singh,Advocate,A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Both the appeals have been heard together and disposed of by a common judgment as both the appeals arises out of same judgment dated 6th December, 1997, passed in Sessions Trial No. 112 of 1996/ 301 of 1997 by Sri Narendra Kumar Srivastava, 5th Additional Sessions Judge, Siwan, by which Rajdeo Yadav, the appellant in Cr. 2 Appeal No. 23 of 1998 has been convicted for offence under Section 376 I.P.C. and has been sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1,000/- to be paid to the victim lady as compensation within four months since the date of this order, failing which to undergo rigorous imprisonment for one year and has further been convicted Mahendra Yadav, the appellant in Cr. Appeal No. 331 of 1997 for offence under Section 376/109 I.P.C. and sentenced to undergo rigorous imprisonment for ten years and he is also directed to pay fine of Rs. 1,000/- to the victim lady within four months since the date of this order, failing which to undergo rigorous imprisonment for one year. However it has been ordered that all the sentences shall run concurrently. 2. The prosecution case as in the complaint petition that the informant had gone to purchase bullock to cattle fair at Balia in I.P. The accused Rajdeo came and impressed the wife of informant that the mother-in-law of Bhagmani (P.W.7) victim has called the Bhagmani in Raghunathpur Mela to meet her. The wife of the informant having repose confidence in Rajdeo allowed Bhagmani to go with Rajdeo to meet her mother-in-law, 3 but Rajdeo did not return then informant apprehend that Bhagmani has been kidnapped with intention to marry or sexual intercourse. 3. On the complaint filed by the informant, F.I.R. was lodged under Section 156 (3) Cr.P.C. and investigation proceeded. During investigation, police recovered Bhagmani from the house of Yogeshwar Prasad where Bhagmani was living as tenant. The statement of Bhagmani was recorded under Section 164 Cr.P.C. before the Judicial Magistrate. After investigation, charge sheet submitted and cognizance taken and the case committed to the Court of Sessions. After commitment, the charge framed under Section 376 I.P.C. against Rajdeo and charge under Section 376/109 against Mahendra. 4. During trial P.W. 8, wife of the informant supported the prosecution case that Rajdeo took Bhagmani on the pretext to meet her with her mother-in-law. P.W. 9 is the I.O. who supported the recovery of the victim from the house of Yogeshwar Prasad from Biharsharif. P.W. 10 is the Judicial Magistrate proved the Ext. 3, the statement of the victim Bhagmani recorded by him under Section 164 Cr.P.C. 4 5. P.W. 7, Bhagmani supported the prosecution case that she was taken to Biharsharif by Rajdeo under false pretext of meeting her mother-in-law and kept her in a room in the house of Yogeshwar Prasad as tenant. She has further stated that her food was arranged in the house of Yogeshwar Prasad. She used to take meal in the house of Yogeshwar Prasad where female members were there. There was also other tenant in the house of Yogeshwar Prasad. Bhagmani has further stated that Rajdeo used to come once in 15-20 days or a month and used to share the bed and raped her for 5-6 times during the period of her stay at the house of Yogeshwar Prasad. She has further stated that she did not protest the sharing the bed and illicit relationship out of fear and she did not disclose any one the fact of her enticing away and kidnapping or her rape to any body at Bihasrsharif. After her stay for six months, Rajdeo who was Khalasi of a Truck was arrested in a theft case of Rs. 15,000/- then she got letter sent to her Sasural and mother through Yogeshwar Prasad, the landlord. On considering the evidence the Trial Court convicted Rajdeo for offence under Section 376 I.P.C. and Mahendra for offence under Section 376/109 I.P.C. and sentenced as 5 mentioned above. 6. The learned counsel for the appellants however contended that the rape is alleged at Biharsharif, but no person of Biharsharif has come to support the prosecution case. It is further contended that the victim is a grown up married woman and her movement was free at Biharsharif and she has access to the house of the landlord where there were female member and there were other tenant living in the house. Further evidence is that Mahendra went away to keep her in a rented house with a direction that to live with Rajdeo and he never returned. Further evidence is that Rajdeo used to come once in 15-20 days or a month, hence the victim has sufficient opportunity to report about her abduction and rape and to inform her mother and her Sasural, but she did not choose to mention about abduction and rape to any one and continue to live, cast a serious doubt on her varacity and in such situation, reliance cannot be place on evidence of the prosecutrix without corroboration and has placed reliance upon decision reported in A.I.R. 1973 page 469 S.C. 1983 page 913 and A.I.R. 2000 S.C. 1812. 7. Learned counsel for the State contended that 6 prosecution supported the prosecution case and prosecutrix herself in her evidence proved the rape and hence there is nothing to disbelieve. 8. However, taking into consideration the respective submissions and after perusal of the record and entire evidence, it is apparent that only evidence regarding rape is evidence of P.W. 7, the prosecutrix. No person from Biharsharif has been examined. Neither the landlord in whose house the victim was kept and rape as alleged has been examined nor the female member of the landlord Yogeshwar Prasad nor tenant has been examined, hence there is no corroboration. The victim P.W.7, though, has supported that she was raped by Rajdeo 5-6 time during the period, but she in her evidence admitted she did not disclose about her abduction, kidnapping or rape to any body. She has stated Mahendra after keeping her in a rented room went away but never came again and she remained there for six months, and Rajdeo used to come once in 15-20 days or a month and hence, plea that she was under fear and so did not inform does not inspire confidence as she was a grown up married lady and she has opportunity to inform her Sasural or her mother 7 during the period before Rajdeo was arrested in a theft case and prosecutrix remained there for six months, but did not inform either in her Sasural or her mother nor stated anything about kidnapping, abduction and rape to the landlord or his family of inmates where she used to take meal and has suffient opportunity to meet female members and hence the plea that she was under fear so she could not reported the mater is stand to reason and is repugnant and to normal common sense and hence only irresistible conclusion that victim was a consenting party and evidence of this witness is not reliable or trustworthy on the evidence of this witness without a corroboration is neither in the interest of justice nor her evidence is reliable, trustworthy and worth confidence. 9. However, it is relevant to relied upon decision reported in AIR 1973 S.C. page 469 para 11 quoted as follows “…..It has been held that the prosecutrix can not be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that courts should normally look for some corroboration of her testimony in order to satisfy itself that 8 the prosecutrix is telling the truth and that a person, accused of abduction or rape has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must be in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the court of the opinion that it is not safe to dispense with that requirement, it has also been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged. ….” In decision reported in A.I.R. 2000 S.C. 1812 “ if evidence of prosecutrix inspire confidence, it must be relied upon without seeking corroboration of her statement in 9 material opportunity if any reasons of the court finds its difficult to place implicity relied on her testimony it may look for evidence which make to her testimony and testimony of the prosecutrix must be appreciated”. decision reported in A.I.R. 1983 S.C. page 913 that “if Judge finds that there is no need of corroboration while relying the evidence of the victim of rape she should give reason by dispensing and necessity for such corroboration. Further in case of a grown up and married woman . It is also safe to insist on such corroboration.” 10. Hence apply the principle as enunciated by Supreme Court as mentioned above, it is apparent that if evidence of the prosecutrix inspire full confidence then it must be relied upon without any corroboration as corroboration is only rule of prudence and not of rule of law but the advisability of corroboration should be present and if there is reason to find it difficult to place implicit reliance then court may look for corroboration before relying on presecutrix. 11. Hence applying the principle under the facts and circumstances of the case the victim went along with Rajdeo on pretext of meeting her mother-in-law, but was 10 taken to Biharsharif and she kept in a rented house. The accused Mahendra went away after keeping her in the rented house and Rajdeo used to come once in a 15-20 days or a month and the prosecutrix was free to move and has companies of the ladies in the house of the landlord and there were other tenant and she had sufficient opportunity to report the matter regarding her abduction, kidnapping or rape, but she never reported to any one and remained there for six months till Rajdeo was sent to jail in connection with a theft case, she does not inform even the landlord or there female member particularly, in such circumstance when she was a grown up married woman creates a grave doubt that she was subjected to rape against her will and her explanation that she was under threat was not accepted and in such circumstance, it is not safe to test the sole testimony of the prosecutrix. In such circumstance, before lying on the prosecutrix, corroboration is required and hence evidence of the victim without corroboration is not acceptable and hence prosecution has not been able to prove the charges beyond reasonable, cogent and reliable evidence. 12. Hence appellants are entitled for benefit of 11 doubt as prosecutrix has not been proved the charges beyond reasonable doubt and hence order of conviction and sentence recorded by the lower court is hereby set aside and both the appeals are allowed. Patna High Court, The 19th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)