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2013 Supreme(All) 1931
ALLAHABAD HIGH COURT
Zaki Ullah Khan, J.
Deo Narain and Another -Appellant
Versus
State of U.P. -Respondent
Criminal Appeal No. 221 of 1995
Decided On : 06-08-2013
Headnote:
Rape - Conviction based on sole testimony of prosecutrix - Sections 376, 451 I.P.C. - [Sections 376, 451 I.P.C.] - The court discussed the testimony of the prosecutrix, lack of medical corroboration, and the turning hostile of eyewitnesses. It highlighted the enmity between the parties and the absence of injuries on the prosecutrix's body. The court referred to the legal principles established in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi, emphasizing the need for corroboration of the prosecutrix's testimony.
Fact of the Case:
The appellants were convicted of rape and house trespass based on the sole testimony of the prosecutrix, who alleged that the appellants assaulted and raped her in her grocery shop. The eye witnesses turned hostile, and the medical examination did not corroborate the prosecutrix's testimony.
Finding of the Court:
The court found that the conviction based solely on the prosecutrix's testimony was not sustainable, especially in the absence of medical corroboration and the turning hostile of eyewitnesses.
Issues: The issues revolved around the credibility of the prosecutrix's testimony, the lack of corroboration, and the enmity between the parties.
Ratio Decidendi: The court emphasized the need for corroboration of the prosecutrix's testimony and highlighted the absence of injuries on the prosecutrix's body, leading to the acquittal of the appellants.
Final Decision: The appeal was allowed, and the judgment and order convicting the appellants were set aside. The appellants' bail bonds were cancelled, and sureties were discharged.
1. The instant appeal has been preferred by the appellants against the judgment and order dated 06.04.1995, 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 under Section 376 I.P.C. and six months R.I. under Section 451 I.P.C.
2. 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 23.05.1992, 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 Angaucha; that subsequently, Rajendra too committed rape upon her forcibly; that the prosecutrix somehow managed to raise alarm and witnesses Ali Asgar and Raj 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, under Section 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 24.05.1992 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 radio logical examination also; that vide supplementary report no living or dead spermetozoa 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.
3. 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 prosec
