Zaki Ullah Khan, J.@mdashThe instant appeal has been preferred by the appellants against the judgment and order dated 6.4.1995, passed by First Additional Sessions Judge, Barabanki in Sessions Trial Nos. 92 of 1993 and 93 of, 1993, convicting and sentencing both the appellants to undergo rigorous imprisonment for ten years u/s 376 I.P.C. and six months R.I. u/s 451 I.P.C. The brief facts giving rise to the appeal are that duo appellants, namely, Deo Narain and Rajendra have been charge-sheeted by police of Safdarganj, district Barabanki under sections 451 and 376 I.P.C. on the complaint of Smt. Anita wife of Tej Narain; that prosecutrix''s mother-in-law Smt. Shivpati purchased eight bighas land through a registered sale-deed from one Babadeen prior to the incident; that the accused-persons demanded their share in the property and on refusal, they assaulted the prosecutrix''s husband Tej Narain about three years ago; that on 23.5.1992, the husband of the prosecutrix (Tej Narain) had gone to Ambaur and her mother-in-law was present in another house; that the prosecutrix was all alone sitting in her grocery; that at about 12:30 p.m. duo brothers-cum-appellants, came there and taking advantage of loneliness, one appellant-Rajendra placed his Katta on the breast of the prosecutrix and the other appellant-Deo Narain committed rape upon her; that when she tried to raise alarm, co-appellant Rajendra gagged the mouth of the prosecutrix with an Angauchha; that subsequently, Rajendra too committed rape upon her forcibly; that the prosecutrix somehow managed to raise alarm and witnesses Ali Asgar and Ram Jiawan reached on the spot and witnessed the incident; that when the prosecutrix resisted, she was assaulted with kicks and fists; that after the incident prosecutrix''s husband and mother-in-law arrived there and she along with her husband and mother-in-law left the house for police station Safdarganj; that she got a report prepared by one Mahesh Prasad Bharti at Safdarganj and reached at police station and handed over her report, which was registered as Crime No. 102, u/s 376/323 I.P.C. against the appellants at 4:30 p.m. on the same day; that the investigation of the case was started and the prosecutrix was sent to District Women Hospital for medical examination; that the prosecutrix was examined on 24.5.1992 at 12:40 p.m.; that during medical examination, no mark of injuries were found on any part on her body; that there was no stain, no blood and no discharge; that during internal examination, doctor found that her hymen was torn, old healed and vagina was admitting two fingers. The vaginal smear was taken and sent for pathological examination and prosecutrix was subjected to radiological examination also; that vide supplementary report no living or dead spermatozoa was found and epiphysis of the bones were found fused and she was adjudged about 19 years old. Doctor submitted her opinion that she was habitual to sexual intercourse, therefore, no opinion regarding rape can be given; that the police submitted charge-sheet after conducting the investigation against the appellants; that the prosecution examined Smt. Anita, the prosecutrix, P.W. 1, P.W.-2 Ram Jiawan, P.W.-3 Ali Asgar who were eye witnesses in addition to P.W. 4 S.I. Kripal Singh, Investigating Officer; that the doctor P.W-5 was also examined, who conducted internal examination as well as external examination of the prosecutrix; that prosecutrix named two eye witnesses who were P.W. 2 and P.W. 3 but both the eye witnesses turned hostile; that the Trial Court believing the sole testimony of P.W. 1 convicted the appellants of the charges of rape as well as committing house trespass and held them guilty. Aggrieved by the aforesaid order, the instant appeal has been preferred.
2. During the course of arguments, learned Counsel for the appellants argued that learned Trial Court had passed the judgment and order on the basis of sole testimony of the prosecutrix. The eye witnesses have not supported the version. Despite this fact, learned Trial Court convicted the appellants on uncorroborated sole testimony of the prosecutrix. It is established on record that appellants have assaulted the prosecutrix''s husband one year prior to the incident and they were prosecuted, therefore, both the parties were having strained relations. The sole cause of enmity is that prosecutrix''s mother-in-law (Shivpati) has purchased land from one Babadeen co-villager and since the appellants were of same family, demanded their share therein and prosecutrix''s mother-in-law did not give any share and as such they nurtured the grievances and this was the sole reason of the enmity. The appellants in their statements recorded u/s 313 Cr.P.C. have alleged that the husband of the prosecutrix wanted to take forceful possession of the land in front of their house and when they resisted the prosecutrix, wife of Tej Narain, registered a false case against them. Learned Counsel for the appellant summed up as under;
(i) There is only sole testimony of the prosecutrix against appellants.
(ii) There is no medical corroboration,
(iii) Witnesses who have been shown as eye witnesses did not support the prosecution case;
(iv) The incident took place in the grocery shop inside the village that too during mid day.
(v) The allegations have been levelled against real brothers who are related to prosecutrix''s husband,
(vi) The enmity between the parties have been established much before the incident,
(vii) Even the husband of the prosecutrix prosecuted them for beating him.
3. Learned Counsel for the appellants argued the case against the appellants have not been proved beyond reasonable doubt but learned Trial Court vehemently presuming that the prosecutrix testimony is such that it should be believed and convicted them.
4. Learned A.G.A. refuted the arguments and replied that the act of rape is such that if it was happening in presence of eye witnesses probably it would not have happened. Nobody can believe that in presence of witnesses rape took place. In fact as per prosecutrix version, after committing rape when she raised alarm two persons rushed to the place but as per prosecution story it was the time when the act was over because as per the version initially her mouth was gagged by Angauchha by one of the appellant while one was committing rape and subsequently the other also committed rape and when she become free then she got a chance to raise alarm and thereby she was beaten with kicks and fists, the injuries were not such in nature that it would have been spotted in the medical examination. It has been admitted that one year prior to the incident the appellants were prosecuted for causing heart to the prosecutrix''s husband and naturally they were on inimical terms. The grievance was that they have been deprived of land as well as they have been prosecuted and that is why in order to give them a lesson they committed this indecent. The learned Trial Court was right in believing the entire testimony of the prosecutrix because no woman shall level false allegations of this type because the chances are that she may be ostracized by the society including her own family members if the true facts are brought to light, therefore, the chances of false prosecution are not there. Normally, women are very reluctant to disclose such type of incident. Only in that case the incident is disclosed when it has been brought to notice of so many persons that is why this fact came to light. The appellants have won over the witnesses and, therefore, they turned hostile.
5. Replying to the arguments advanced by learned A.G.A., teamed Counsel for the appellants submitted that Hon''ble Apex Court has also ruled in
Penal Code, 1860-Section 376-Gang rape-Conviction-Prosecutrix is a married woman-Apart from total prevaricating statement of prosecutrix herself in her oral version before Court, other two witnesses have not supported story of prosecution- There are material variations as regards identification of accused persons as well as manner in which occurrence took place-So called eye witnesses did not support story of prosecution-Recoveries failed to tally with statements made-FSL report did not co-relate version alleged-There is no scope to sustain conviction and sentence imposed on appellants-Conviction and sentence set aside-Appeals allowed.
Criminal Law-Appreciation of evidence-Sterling witness should be of a very high quality and caliber whose version should be unassailable-Court considering version of such witness should be in a position to accept it for its face value without any hesitation-To test quality of such a witness status of witness would be immaterial--What would be relevant is truthfulness of statement made by such a witness--It should be natural and consistent with case of the prosecution qua accused-There should not be any prevarication in version of such witness.
6. Learned Counsel for the appellant, therefore, argued that the appellants are liable to be acquitted and the orders of the learned Trial Court are liable to be set aside in view of Hon''ble Apex Court''s above mentioned ruling.
7. Heard learned Counsel for the appellant as well as learned Government Advocate and perused the record.
8. The prosecution has examined as many as six witnesses to prove this case. The most important thing is that the prosecutrix Smt. Anita, P.W. 1, Prosecutrix, has narrated in her examination-in-chief that accused-persons are her husband''s cousin. One Babadeen, a co-villager, has executed a sale-deed about 4-5 years back in favour of her mother-in-law. The appellants wanted to have their share in that sale-deed but her mother-in-law denied. This was the enmity between the parties and since then they were on inimical terms. She has further narrated that about one year back her husband was beaten up by appellants and the report was lodged and they were prosecuted. She has narrated the incident that she was alone in her grocery shop and appellants took advantage of loneliness and trespassed into the shop. The appellant-Rajendra was having a country made pistol in her hand and put that pistol on her chest and the other appellant-Deo Narain raped her. Appellant-Rajendra gagged Angauchha in her mouth. When the other appellant started raping her, the Angauchha which was gagged in her mouth has slept down and then she raised alarm. On hearing alarm P.W. 2 Ram Jiawan, P.W. 3 Ali Asgar and Jata Shankar came for rescue and then the appellants ran away. She has also stated that shortly before that she was beaten up by the accused-persons by kicks and fists. Subsequently, when her husband and mother-in-law came, she joined them and went to police station concerned got written report scribed by one person and then lodged it in police station by putting thumb impression on it. She was also medically examined on the next day.
9. This was the only testimony which is against the appellants because P.W. 2 and P.W. 3 both turned hostile and did not support the case. The other important witness for corroborating the evidence who could have been the best witness is P.W. 5-Dr. Salma Khatoon. She is independent witness and for holding the appellants guilty the testimony of P.W. 5 should corroborate the act of P.W-1. It is strange thing that P.W. 5 did not find any corroboration of testimony of P.W. 1. She did not find any external injury or mark on the person of the prosecutrix during external examination as well as internal examination. No spermatozoa was found during the vaginal examination. No opinion regarding rape was given. No other bloodstains were found on the prosecutrix''s cloth which was worn at the time of incident.
10. Learned Trial Judge, however, convicted the appellants on the sole testimony of the prosecutrix. The Trial Judge was of the opinion that there was enmity between two and taking advantage of that enmity she was ravished by the appellants. The Trial Court Judge based his finding on Hon''ble Apex Court''s view in B.B. Hirji Bai v. State of Gujarat, 1983 (20) ACC 29 (SC) in which Hon''ble Apex Court has laid down that a woman in the tradition bound society of the country would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She should be conscious of the danger of being ostracized by the society including by her own family members and relatives etc. This may be the correct view pronounced by Hon''ble Apex Court but the facts here are entirely different. There is enmity between the two and enmity is double edged weapon and admittedly, they were having strained relations and the appellants were being prosecuted for chasing and beating the husband of the prosecutrix. The possibility is also that the prosecutrix on exhortation by her family members may implicate them on their advise. The situation is alarming because as in the Hon''ble Apex Court''s view is that the women will not derogate herself in the society. The situation here is that in the present status of the society, two real brothers will not commit sexual intercourse with their sister-in-law openly in the shop which is in the vicinity of the reach of the so many persons. The appellants are real brothers and the testimony of the P.W. 1 did not find any corroboration regarding the act of the appellants. She does not have any slightest injuries on her body as she alleged that she was beaten by kicks and fists. It is strange thing that two young persons are beating a lady but she did not find any scratch even on her body, therefore, the circumstances here are adverse and B.B. Hirji Bai (supra), finding of Apex Court probably will not attract in the present set of circumstances.
11. At this juncture, the view of Hon''ble Apex Court in Rai Sandeep @ Deepu v. State of NOT of Delhi (supra) is also applicable in this case and I am convinced that facts are identical in above mentioned ruling. Hon''ble Apex Court held that prosecutrix is married woman. The other witness has not supported the story of prosecution and Hon''ble Apex Court has also ruled that how the evidence is appreciated under these circumstances. It would not be advisable to hold guilty any person on uncorroborated testimony of the prosecutrix specially when she has alleged that it was witnessed by two other persons. The first and foremost thing is that no person can be eye witness of rape because had he reached on time the rape would not have been committed and if somehow he reaches subsequently to the occurrence and if he has not corroborated the subsequent event and turn hostile then I do not find any legality in the order passed by the Trial Court. The order is contrary to the provisions of law and is liable to be set aside. Accordingly, appeal is allowed and the judgment and order dated 6.4.1995, passed by First Additional Sessions Judge, Barabanki in Sessions Trial Nos. 92 of 1993 and 93 of 1993 are set aside. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. Lower Court record be sent back for appropriate action.
