Gautam Kumar Choudhary, J
1. This appeal is directed against the judgment of conviction and sentence passed under Section 376(2)(g) of the Indian Penal Code in which the
appellants have been sentenced to undergo rigorous imprisonment for ten years and fine of Rs.5000/- each and in default of payment of fine to
undergo R.I. for six months.
2. As per the fardbeyan, the prosecutrix (P.W. 3) on 17.02.2005 at 12.30 p.m. had gone to take bath in Joria Nala which is situated at a distance of 01
Km. from the village. Before taking bath, when she went to attend to natural call, it is alleged that both the appellants namely Yunus Ansari and
Sahabuddin Ansari committed rape with her. Sahabuddin caught hold of her both hand and muffled her mouth and Yunus had sexual intercourse with
her. They threatened her from not disclosing the incidence to anyone. The moment they left the place of occurrence, she raised alarm and villagers
came to her rescue. After returning home, she narrated to it to her mother and brother Rahmat Ansari. Thereafter, this case was lodged.
3. On the basis of the statement of the victim, Harla P.S. Case No.21 of 2005 was registered under Section 376/34 of the Indian Penal Code. Police
on investigation, found the case not true and submitted closure report. A protest cum complaint petition was filed on 07.05.2007 and thereafter,
cognizance was taken by the learned trial court under Section 376/34 of the IPC. After commitment, the accused persons were put on trial under this
Section.
4. Prosecution examined altogether six witnesses and proved the relevant documents which have been marked as Exhibit 1 â€" 3.
5. Prosecutrix has been examined as P.W. 3. She has deposed that on the date and time of incidence, she had gone to take bath where rape was
committed by both of the accused persons. When she got free from their clutches, she raised alarm on which Taiyab Ansari and Saiyab Ansari came
to her rescue. She returned home and narrated the incidence to her mother and brother â€" Rahmat Ansari. Her father was on duty who was
informed on telephone. After some time, they went and lodged a case.
P.W. 1 â€" Rahmat Ali is the brother of the victim. He has deposed that his sister informed that rape was committed on her by Yunus while
Sahabuddin Ansari had caught hold her hand. Both accused persons fled away. He has denied the suggestion in the cross-examination given on behalf
of defence that a demand of Rs.2,00,000/- was made and when it was not made, this false case was lodged.
P.W. 2 â€" Naushad Ansari is the father of the deceased. He supported the prosecution case and has stated that both the appellants had committed
rape with his daughter. In para 8 of the cross-examination, he has deposed that his daughter has suffered injuries on her back side and there was
bleeding.
P.W. 4 â€" Banu Devi is the mother of victim and she has fully supported the prosecution version.
P.W. 6 â€" Taiyab Ansari has not supported the case and declared hostile.
P.W. 5 is the Doctor, who had examined the victim on 17.02.2005 and found the following external injuries:
Multiple bruises on (i) upper back of chest and arm (ii) both buttock (iii) 2 â€" 3 minor nail abrasion mark on middle of chest (iv) 1 â€" 2 small scratch
mark â€" nail, on right cheek.
6. After the prosecution evidence, statement of accused persons was recorded under Section 313 of the Cr.P.C. Defence is of innocence and false
implication due to past enmity. Four witnesses have been examined on behalf of defence.
D.W. 1 has deposed that in 1982 there was litigation between both sides following the murder of Karim Ansari. In the said case, father of the victim
â€" Naushad Ansari used to threaten Sahabuddin Ansari. He has further deposed in para 7 that there was love affair between accused â€" Yunus
Ansari and the prosecutrix. Babloo Ansari had seen the prosecutrix and Yunus in compromising position and he made this public. In his cross-
examination, he has deposed that he cannot give any detail regarding earlier murder case.
D.W. 2 is accused Yunus Ansari himself. He has deposed that Babloo Ansari had seen him in a compromising position with the prosecutrix as there
was love affair between them. It was for this reason that the rape case was lodged. As Sahabuddin was his cousin brother therefore, he has been
falsely implicated in the case.
D.W. 3 â€" Sahabuddin Ansari is another accused. His deposition is on the same line as that of appellant â€" Yunus Ansari.
D.W. 4 â€" Babul Ansari has deposed that he has seen the prosecutrix in compromising position regarding which a Panchayat was held in the
village. There was enmity between the families of Sahabuddin and Naushad. In para 16 of the cross-examination, he has deposed that the incidence of
rape took place near Joria Nala.
7. The judgment of conviction and sentence has been assailed on the ground that the accused persons have been falsely implicated in this case on
account of past enmity and for the reason that the prosecutrix had love affair with Yunus Ansari which was to the disliking of her family members.
When this fact came to their knowledge, the victim was bitten up resulting in injury. The injuries sustained were thus, not on account of rape, but
because of being assaulted by her own brother.
8. It is also argued that the police had found the case to be false and closure report was submitted against both the accused. Investigating Officer has
not been examined in this case.
9. Learned A.P.P. assisted by learned counsel on behalf of informant has defended the impugned judgment of conviction and sentence. It is submitted
that the plea of past enmity is not supported by any documentary evidence. There is absolutely no evidence as to when the case was lodged and what
was the number of the said case.
10. We find force in the argument advanced on behalf of the State that inconsistent plea of defence has been attempted to be set up. On the one hand,
it is said that there was past enmity and on the other, it has been deposed by the accused persons and the defence witnesses that there was love affair
between Yunus Ansari and the prosecutrix. D.W. 4 â€" Babul Ansari, who is nephew of the accused Yunus Ansari and Sahabudin Ansari. He has
deposed in para 15 of cross-examination that he told the police that he had seen the prosecutrix and Yunus Ansari in a compromising position before
the incidence of rape. In para 16 of the cross examination, he has stated that the incidence of rape took place near Joria Nala. He has thus admitted
the incidence of rape to have been committed near Joria Nala.
11. In sexual assault case, the testimony of the prosecutrix being found reliable and trustworthy, is sufficient to return the judgment of conviction
without any corroboration. It is settled position of law that in cases of sexual assault the evidence of prosecutrix is to be treated that of an injured
witness, so much that no corroboration is necessary. It will be relevant to refer few authorities on the point.
Rafiq v. State of U.P., (1980) 4 SCC 262
6. There are several “sacred cows†of the criminal law in Indo-Anglican jurisprudence which are superstitious survivals and need to be re-examined. When
rapists are revelling in their promiscuous pursuits and half of humankind â€" womankind â€" is protesting against its hapless lot, when no woman of honour will
accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken
as a whole, the case spoken to by the victim strikes a judicial mind as probable. In this case, the testimony has commanded acceptance from two courts.
State of Punjab v. Gurmit Singh & Others, (1996) 2 SCC 384
8. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness
who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to
shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence
is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is
not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion,
treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity
lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a
fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
12. Under the above settled position of law, we are of the view that argument advanced on behalf of the appellants that testimony of the victim was
not corroborated by other evidence, is not sustainable. Immediately after the incidence victim narrated about the incidence to her family members. Her
brother and mother who have been examined as P.W. 1 and P.W. 4, have corroborated the testimony that after she returned, she complained about
the incidence. Her testimony is also corroborated by medical evidence, in which multiple bruises have been found on her body.
13. With regard to the argument that in the FIR, it has been deposed that only Yunus had established physical relationship whereas Sahabuddin had
not, is of no avail. Even the part of the deposition of the victim is accepted that Sahabuddin had caught hold of her hand, which will bring this act
within four corners of Section 376(2)(g) of the Indian Penal Code. It has been held in Om Prakash v. State of Haryana, (2011) 14 SCC 309
22. This Court in Ashok Kumar v. State of Haryana [(2003) 2 SCC 143 : 2003 SCC (Cri) 446] had occasion to dwell on Explanation 1 to Section 376(2)(g) IPC
while examining whether the appellant Ashok Kumar could be convicted under the same because at the crucial time, he happened to be in the house of the co-
accused Anil Kumar in whose case the judgment of conviction under Section 376(2)(g) had attained finality. The Court observed that the prosecution must
adduce evidence to show that more than one accused has acted in concert and in such an event, if rape had been committed by even one of the accused all will be
guilty irrespective of the fact that she has not been raped by all of them. Therefore, it may not be necessary for the prosecution to adduce evidence of a completed
act of rape by each one of the accused. The provision embodies a principle of joint liability and the essence of that liability is in existence of common intention.
That common intention presupposes prior concert as there must be meeting of minds, which may be determined from the conduct of the offenders which is revealed
during the course of action.
The judgment of conviction and order of sentence is affirmed.
Criminal Appeal stands dismissed.
Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
