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Matru vs State Of U.P. on 28 February, 2020

Allahabad High Court

Matru vs State Of U.P. on 28 February, 2020

Bench: Karunesh Singh Pawar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved On 14.09.2019
 
Delivered on 28.02.2020
 
Court No. - 27
 
Case :- CRIMINAL APPEAL No. - 828 of 2019
 
Appellant :- Matru
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jail Appeal,Sumit Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard Sri Sumit Kumar Srivastawa, learned Amicus Curiea and Sri Diwakar Singh, learned A.G.A. for the State and perused the record.

2. Learned trial court vide judgment and order dated 03.08.2018 passed in Sessions Trial No. 21/2016 “State Vs. Matru” convicted the appellant under Section 376(1) I.P.C. for a period of seven years rigorous imprisonment and a fine of Rs. 20000/-. Learned trial court has further convicted the appellant under Section 506 (2) I.P.C. for a period of three years rigorous imprisonment and a fine of Rs. 5000/-. Both the sentences were to run concurrently.

3. The prosecution case in brief as per the written report is that on 08.09.2015 while she was returning from the place of Ex- Pradhan regarding the ghoor dispute with her Devar (brother-in-law) and as soon as she arrived near the field of Raj Kumar Mahtiyak then the appellant caught hold of her from behind and dragged her inside the sugarcane field and tried to commit rape while threatening to kill and when she cried he ran away by extending threats towards his village.

4. A written report regarding the incident was given by the prosecutrix on 09.09.2015 which is exhibited as Ka-1. Consequently chik F.I.R. was registered on 09.09.2015 which is exhibited as Ka-7. Thereafter the statement of the prosecutrix as well as statement of the other prosecution witnesses were taken by the investigating officer. The prosecutrix also gave her statement under Section 161 Cr.P.C. before the court. On 12.09.2015, the prosecutrix was medically examined and her clothes were taken by the Doctor Yamini Badal and sent it for forensic examination for examining the D.N.A.

5. The investigating officer filed the charge sheet. Thereafter cognizance was taken and charges were framed against the accused persons vide order dated 13.05.2016 under Section 376/506 I.P.C. which was read over to the accused to which he denied and pleaded to be tried. Thereafter the statement of the accused under Section 313 Cr.P.C. was taken wherein his defence of total denial and false implication due to enmity relating to the election of Gram Pradhan.

6. The prosecution in support of its case has examined the prosecutrix as PW-1. PW-2 is Dr. Yamini Badal, who medically examined the prosecutrix. PW-3 is women constable Geeta Rajput, who took the statement of the prosecutrix under Section 161 Cr.P.C. PW-4 is Constable Longshri, who wrote the chik report. PW-5 is the Investigating Officer Sri Jeevan Singh.

7. PW-1 while stating before the Court has said that written report was written by the Inspector at the police station on which she put her thumb impression. While in her examination-in-chief before the court she has denied the version in the written report as well as in the F.I.R. that she was dragged inside the sugar cane field and accused was trying to rape her and once she cried he ran away. She stated that she has told the Inspector that she was dragged inside the sugarcane field and was raped by the accused-applicant. She tried to escape during the occurrence. She was medically examined. She further stated that appellant no. 2 is in collusion with his Devar and took his side. She further stated that when she returned from the place of occurrence to her home, the Pradhan was called upon by the villagers. She further stated that she went to lodge the report along with Gram Pradhan. She further stated that she has not received any injury at the time of occurrence. She has also stated that she is not aware as in whose field the incident had taken place. In her chief she has stated that Guddu Pradhan has called the ambulance and on the ambulance she went to Bijwa Hospital for medical examination, but no medical was conducted on that date rather the same was conducted on the next date. The prosecutrix has denied the suggestion that since the appellant happens to be the friend of her brother-in-law, therefore, she is falsely implicating him. She has further denied the suggestion that no rape has been committed on her.

8. PW-2 Yamini Badal, who conducted the medical examination of the prosecutrix has stated that no injury either upon external or internal has been found on the person of the prosecutrix. The hymen of the prosecutrix was old and torn and has filled up. She has further stated that no blood was oozing from the person of the prosecutrix and she has also stated that the clothes which the prosecutrix was wearing were taken by her and sent for D.N.A. Test to the Forensic Laboratory, Mahanagar at the time of medical examination i.e. on 12.09.2015. Then in the supplementary report prepared on 16.09.2015 no live or dead spermatozoa was found. Lastly it has been stated that on the basis of medical examination and pathology report, no opinion regarding the rape can be given.

9. PW-3 is Sheela Rajput, women constable, who recorded the statement of the prosecutrix under Section 161 Cr.P.C. and has proved Exhibit Ka-6. She recorded the statement of the prosecutrix under Section 161 Cr.P.C. and she sent the prosecutrix to Nari Niketan after the medical examination.

10. PW-4 who is scribe of the chik report and has proved it. She has denied the suggestion that on the saying of gram pradhan, the F.I.R. has been lodged.

11. PW-5 is the investigating officer who has prepared the site plan and has proved it as Exhibit Ka-7. He has taken the statements of the prosecution witnesses. He has further stated that on 17.09.2015 he has seized the clothes which were stained by blood and semen and prepared the fard which is Ex. Ka-3 which is in his writing and signature. Later on, he has stated that he tried to record the statement of the prosecutrix under Section 164 Cr.P.C. On 04.10.2015 and on 10.10.2015 but the prosecutrix refused to give the statement under Section 164 Cr.P.C. and he further stated that it appears to him that the prosecutrix does not want to give statement under Section 164 Cr.P.C., however, on 19.10.2015, the statement of prosecutrix was recorded under Section 164 Cr.P.C. and on the basis of the statement the prosecutrix under Section 164 Cr.P.C., the offence was converted under Section 376/506 I.P.C. and the offence under Section 511 I.P.C. was dropped. He further stated that on 10.11.2015, the statements of the witness of fard namely Jagdish Gautam, Mahila Arakshi Geeta Rajput and Sripal were recorded under Section 161 Cr.P.C. as witnesses of Fard. He again stated that the clothes worn by the prosecutrix at the time of occurrence were sealed and sent to the forensic laboratory on 09.11.2015. He further stated that the restatement of the prosecutrix was recorded on 30.10.2015.

12. Learned counsel for the appellant contends that at the time of occurrence the prosecutrix is 40 to 45 years old widow lady having one child. He further contends that there is unexplained delay of one day in lodging the F.I.R. In the written report as well as in the F.I.R. and also in the statement under Section 161 Cr.P.C., no allegation of rape has been made by the prosecutrix upon the appellant. The allegation of rape has been levelled for the first time in her statement under Section 164 Cr.P.C. He further submits that even in the statement under Section 164 Cr.P.C., she has stated that she lost lot of blood during the occurrence, however, while testifying before the court as PW-1, she has clearly stated that no blood was lost during the occurrence, whereas in the statement under Section 164 Cr.P.C. she has stated that her entire clothes were dipped in blood and that blood had oozed out due to the offence committed by the appellant.

13. The next submission of learned counsel for the appellant is that once PW-2 has taken the clothes of the prosecutrix after the medical examination which were containing human blood and semen and sent it for forensic examination on 12.09.2015 after that there is no occasion for the I.O. to recover and seize the clothes of the prosecutrix which were worn by her on the date of incident. The alleged seizure memo of the investigating officer dated 17.09.2015 is false and planted and no explanation has been given by the prosecution as to what happened in the forensic examination of the clothes which were sent by the PW-2 on 12.09.2015. The silence of the prosecution falsifies the entire prosecution story. The independent fard witness Sri Pal, in whose presence, the clothes of the proseuctrix have been seized, has not been produced before the Court and therefore, the fard recovery cannot said to be proved.

14. Learned counsel for the appellant further contends that in the F.S.L. Report only human blood said to have been found which is not enough. In support he has relied on the judgment of this Court in the case of “Khalid and another Vs. State of U.P.” Criminal Appeal no. 2717/2011, para no. 29 and 31. Para No. 29 and 31 is reproduced herein as under:-

“29. Although in the forensic lab report the Salwar bore the spot of sperm and human semen, but that alone would not be sufficient to record a finding of the conviction against the accused.

31. No doubt, when the forensic lab examines semen and blood on the garments of the victim, the part of the cloth is cut and examined, which contains spots of blood, semen or spermatozoa. But at least the cloth i.e. Salwar will remain in its original shape. In this particular case a 10 to 12 inches cloth cannot be termed to be a Salwar, hence this part of the prosecution case too, is not reliable.”

He further submits that in the medical examination of the prosecutrix, no injury on her internal or external part has been found, whereas the statement of the prosecutrix under Section 164 Cr.P.C. depicts that the clothes of the prosecutrix were dipped in the blood as she lost lot of blood during the occurrence, however, while testifying before the court she has denied her earlier version and said that no blood was lost due to the offence. He further submits that enmity with the accused has been admitted by the prosecutrix in her examination-in-chief, statement under Section 161 Cr.P.C. and under Section 164 Cr.P.C. The accused persons have taken the defence of enmity under Section 313 Cr.P.C. and stated that they have been falsely implicated due to the village enmity relating to the election of Pradhan. It is next contended that the ambulance driver has not been examined to support the prosecution story as prosecutrix went to the police station initially on the ambulance along with Pradhan. He further submits that Sub-Inspector/scribe of the written report who has written it has not been produced before the court therefore the written report has not been proved. It is lastly contended that the Village Pradhan was present at every stage of the proceedings as per the statement of the PW-1, however, the investigating officer has not produced him which casts a doubt on the prosecution story. Lastly it is contended that apart from the testimony of the prosecutrix alone, there is no corroborative material to hold the appellant guilty. He submits that the testimony of the prosecutrix has changed at every stage. In the written report, F.I.R. and statement under Section 161 Cr.P.C. there is allegation of attempting to commit rape, whereas in the statement under Section 164 Cr.P.C., , for the first time, there is allegation of committing rape. While giving statement under Section 164 Cr.P.C. she has stated that she was laying in pool of blood and lost lot of blood during occurrence, whereas while deposing before the court she has stated that she has not lost any blood during the occurrence.

15. It is further contended by the learned counsel for the appellant that the testimony of the prosecutrix is inconsistent at every stage, does not inspire confidence and as such the other corroborative material is needed to sustain the conviction. He further submits that learned trial court has not given any finding on the fact that how blood stained/semen stained clothes of the prosecutrix could be seized twice, first by the doctor on 12.09.2015 and second by the investigating officer on 17.09.2015 and what happened to the clothes seized by the doctor which was sent to the forensic lab. The prosecution is silent at this aspect and therefore the benefit of doubt must go in favour of the appellant as the prosecution has failed to prove its case beyond reasonable doubt.

16. Learned A.G.A. opposed the appeal but could not dispute the fact that the clothes of the prosecutrix which were seized on 12.09.2015 and sent for forensic lab. There is no forensic lab report neither there is any examination, however he submits that I.O. on 17.09.2015 has seized the clothes of the prosecutrix and sent it for forensic examination on which human blood has been found. The statement of the prosecutrix has supported the prosecution version. The prosecutrix has denied the suggestion regarding the enmity and false implication of the accused-appellant. He further submits that the defence taken by the accused person in their statement under Section 313 Cr.P.C., is vague and is of no benefit to him.

17. Having heard the arguments of learned counsel for the parties, this Court carefully proceeds to examine the evidence of prosecution witnesses. A written report regarding the occurrence was lodged 09.09.2015 and the F.I.R. is of the same day. In the written report, it has been alleged by the prosecutrix that the appellant has tried/attempted to commit rape, however, since she raised alarm, then he left the prosecutrix and ran towards village. In the F.I.R. same story has narrated in the written report has been reiterated by the prosecutrix, however, in her statement under Section 164 Cr.P.C. recorded on 19.10.2015 for the first time. The prosecutrix has levelled the allegations of committing rape on the appellant and has further stated that her entire clothes were dipped in blood and the police took those clothes. Then she came home and narrated the incident to one Ram Chandra and thereafter the Pradhan Gudde called the ambulance and took her to Bijwa but there her medical was not conducted and till 19.10.2015 she has not been medically examined. The report was lodged on the next day at police station.

18. The record reveals that the prosecutrix was medically examined on 12.09.2015 at 2:00 P.M. at District Hospital Lakhimpur Kheri. No abnormality was detected in internal genital examination. The clothes of the prosecutrix were sealed and sent for DNA examination by the concerned doctor. No injury was found in the external examination of the prosecutrix. As per the pathology report no spermatozoa was seen either dead or alive. The report of the district hospital is exhibited as Ka-5. In her statement under Section 161 Cr.P.C. the prosecutrix has not levelled allegation of rape on the appellant rather has alleged that he attempted to rape her and on her raising alarm he ran towards the village by extending threat to her. While deposing before the Court, PW-1 prosecutrix in her examination-in-chief stated that one year eight months before while she was returning after talking to the Pradhan of Bibipur, the appellant met her on the way of Bibipur to Kamiapur, he followed the prosecutrix, hence she ran and fell on the khadanja (brick road) then the appellant showed her knife and picked her in her lap and took her into the sugarcane field and there she was raped by the appellant and due to this her clothes were stained with blood. After coming home, she told the incident to Ram Chandra who is son of her elder sister and then Guddu Pradhan called the ambulance from which she went to Bijua hospital there no medical examination took place and the next day she went to police station and written report was written by an unknown person. She proved her statement under Section 164 Cr.P.C. after seeying it. In her cross she stated that clothes which were taken by the police are not produced in the Court. She contradicted her statement in the examination-in-chief and said in the cross-examination that the written report was written by the inspector at police station. She admitted the enmity with the appellant Matru as he took side of her brother-in-law. In the cross she further stated that at the time of occurrence she did not receive any injury.

19. PW-2 Doctor Yamini Badal in her statement has stated that in her internal and external examination no injury was found on the person of the prosecutrix. Hymen was old and torn and filled up and no bleeding was found on the person of the prosecutrix. She further stated that the clothes of the prosecutrix were sent for DNA examination to the forensic lab Mahanagar, Lucknow. She further stated that on the basis of the pathology report, the supplementary medical report was prepared by her in which no live or dead spermatozoa was found and on the basis of the medical examination and the pathology report, she stated that no definite opinion about rape could be given.

20. PW-3 is the woman constable who took the statement of the prosecutrix under Section 161 Cr.P.C. She stated that after taking statement of the prosecutrix she took the prosecutrix to the District Hospital where she was medically examined on the same day.

21. PW-4 is constable Longshri who has written the chik first information report and has proved it.

22. PW-5 is Jeevan Singh, the investigating officer who has stated that on 17.09.2015, the clothes of the prosecutrix which she was wearing at the time of incident and which were stained with blood and semen were sealed. He further stated that the prosecutrix twice refused to give statement under Section 164 Cr.P.C. and because of that he felt that she is not willing to give statement under Section 164 Cr.P.C. However, ultimately she gave statement under Section 164 Cr.P.C. and on that basis Section 376/506 were added and Section 511 Cr.P.C. was dropped. In his cross examination he again stated that the clothes of the prosecutrix which she worn at the time of incident were sealed on 19.11.2015 for forensic examination. He in the cross examination, further stated that he has taken restatement of the prosecutrix on 30.10.2015.

23. In the offence of rape, statement of the prosecutrix is of utmost importance and law in this regard is settled that on the sole statement of the prosecutrix the accused can be convicted.

24. In this case, in the written report as well as in the F.I.R. the allegation of committing rape is absent rather attempt to commit rape has been alleged by the prosecutrix. In her statement under Section 161 Cr.P.C. again the attempt to commit rape has been alleged against the accused-applicant. Second/restatement of the prosecutrix taken on 30.10.2015 has not been exhibited. For the first time while giving statement under Section 164 Cr.P.C. i.e. after more than one month and eight days, for the first time the prosecutrix has levelled allegation of rape against the appellant and on that basis section 376/506 I.P.C. have been added and Section 511 I.P.C. has been dropped by the investigating officer. In her statement before the Court as PW-1, the prosecutrix stated that village Pradhan called the ambulance and from the ambulance she was taken to hospital and in the hospital no medical examination was conducted and on the second day, the F.I.R. was lodged through an unknown person. She further stated that blood/semen stained clothes were taken by the police, however, in the cross she has stated that the clothes sealed by the police have not been produced in the Court. She has further admitted the enmity with the appellant in her cross.

25. On the contrary, the medical report which is exhibited as exhibit Ka-4 shows that the prosecutrix was medically examined on 12.09.2015 between 2 PM to 3 PM and clothes of the prosecutrix were sealed and sent for D.N.A. examination. In her statement under Section 164 Cr.P.C., the prosecutrix stated that she lost lot of blood during the occurrence, however, it is while testiying before the Court as PW-1, she contradicted her earlier statement and stated that no blood was lost during the occurrence. The testimony of the prosecutrix has changed at various stages. In the written report, F.I.R. and the statement under Section 161 Cr.P.C. there is allegation of only attempting to commit rape. In her statement under Section 164 Cr.P.C., the prosecutrix for the first time has levelled the allegation of committing rape and stated that she was lying in the pool of blood and lost lot of blood during the occurrence. On the contrary when deposing before the Court as PW-1 she stated that she has not lost any blood during the occurrence. Thus, the above contradictory statement of the prosecutrix are not worthy of credence and do not inspire confidence particularly looking into the facts that the prosecutrix has admitted enmity with the accused, the ambulance driver has not been examined from whom the prosecutrix says that he went to police station initially, the village Pradhan who arranged the ambulance and went with the prosecutrix to the police station, has also not been produced, further casts a doubt on the statement of the prosecutrix as well as the prosecution case.

26. After going through the evidence of the prosecutrix witness, it is evident that the statement of the prosecutrix at every stage has improved, changed and has contradicted its earlier statement and the testimony of the prosecutrix suffers from material inconsistency and as per the settled law conviction cannot be based on such testimony of the prosecutrix which is not worthy of credence and therefore some more corroborative material, may be even short of corroboration is needed to convict the accused-appellant.

27. PW-2 doctor Yamini Badal has stated that she had taken the clothes of the prosecutrix and sent it for D.N.A. examination to the forensic lab, Mahanagar, Lucknow. The medical examination report of the prosecutrix which is on record shows that the prosecutrix was medically examined on 12.09.2015 between 2 to 3 PM and her clothes were sent for forensic examination and once the bold stained and semen stained clothes of the prosecutrix have been taken during the medical examination and sent by the doctor for forensic examination on 12.09.2015 then there was no occasion for the investigating officer to take the clothes of the prosecutrix on 17.09.2015 and there could not be a second set of clothes for the investigating officer to seize them and sent them for forensic lab. The entire prosecution story is silent on this aspect as to what happened to the clothes of the prosecutrix which were sent by the doctor on 12.09.2015 and this casts a doubt on the prosecution case and the appellant is entitled to be given the benefit of doubt. The PW-2 doctor Yamini Badal has not supported the prosecution story. She has clearly stated that no injury was found on the person of the prosecution either on the internal or external part. Hymen of the prosecutrix was old and torn and filled up and she was not bleeding and therefore, no opinion of rape has been given by her.

28. The investigating officer at one place while deposing before the court has stated that on 17.09.2015 he seize the clothes of the prosecutrix which were stained of blood and semen and prepared the fard. Later on in the cross examination he stated that the clothes worn by the prosecutrix at the time of occurrence were sealed and sent for forensic lab on 09.11.2015 which is in contradiction to his earlier statement.

29. The independent fard witness Sripal in whose presence the clothes of the prosecutrix are said to be seized by the investigating officer which has not been produced before the Court. This fact coupled with the contradictory statement of the investigating officer wherein he has said that the clothes worn by the prosecutrix were sealed and sent for forensic examination. The seizure memo prepared by the investigating officer dated 17.09.2015 of the clothes of the prosecutrix is doubtful. In view of the fact that once the clothes of the prosecutrix containing human blood and semen were already taken by PW-2 on 12.09.2015, the Investigating Officer could not seal it again on 17.09.2015. Coupled with the fact that independent witness of fard Sripal in whose presence the clothes are said to have been seized has not been produced before the Court creates a serious doubt on the fard recovery and this Court has noticed that the learned trial court while convicting the appellant has not given any finding on this aspect as to what happened to the clothes of the prosecutrix which were seized by PW-2 and sent for forensic examination to Mahanagar laboratory.

30. Since the statements of the prosecutrix has changed at various stages and do not inspire confidence, the other corroborative material may be even short of corroboration is needed. The statement of PW-2 does not support the prosecution case. The statement of PW-5 also does not inspire confidence as once the clothes of the prosecutrix were already seized and sent for forensic examination by the PW-2 on 12.09.2015, the I.O. could not have taken clothes of the prosecutrix again on 17.09.2015. Coupled with the fact that independent witness of the alleged seizure on 17.09.2015 namely Sripal has not been produced before the court.

31. The Hon’ble Supreme Court in Mohd. Ali @ Guddu vs. State of Uttar Pradesh (2015) 7 SCC 272 has held as under :-

“Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned Trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be appropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testiony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.”

32. In Hem Raj v. State of Haryana, (2014) 2 SCC 395 it has been held that :-

“10. Faced with such a situation, we were anxious to find out whether there can be any clinching medical evidence suggesting rape, but, unfortunately, the prosecuton has failed to examine Dr.Anjali Shah, who had examined the prosecutrix. The MLR was produced in the Court by P.W.6 J.B. Bhardwaj, Medical Record Technician. This is a serious lapse on the part of the prosecution. We are aware that lapses on the part of the prosecution should not lead to unmerited acquittals. This is, however subject to the rider that in such a situation the evidence on record must be clinching so that the lapses of the prosecution could be condoned. Such is not the case here. The MLR does suggest that the hymen of the prosecutrix was torn. It is also true that the prosecutrix has brought on record FSL report which shows that human semen was detected on the salwar of the prosecutrix and on the underwear of the accused. However, it is difficult to infer from this that the prosecutrix was raped by the appellant. The prosecutrix herself has vacillated on this aspect. It was pointed out that no injuries were found on the prosecutrix. We do not attach much importance to this aspect because presence of injures is not a must to prove commission of rape. But the prosecutrix’s evidence is so infirm that it deserves to be rejected. Her brother has come out with a case that the appellant tried to rape the prosecutrix. He did not say that the appellant raped the prosecutrix. Taking an overall view of the matter, we find it difficult to sustain the prosecution case that the prosecutrix was raped by the appellant. This is a case where the appellant must be given benefit of doubt. “

33. In Dola vs. State of Odisha 2018 SCC Online SC 1224 it has been held that in para 31 which is reproduced as under :-

31. In our considered opinion, the Trial Court as well as the High Court have convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the Doctor’s evidence do not specify whether there were any signs of forcible sexual intercourse. It seems that the First Information Report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court has, in our considered opinion, brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court has proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. Having regard to the totality of the material on record and on facts and circumstances of this case, it is not possible for this Court to agree with the concurrent conclusions reached by the courts below. At best, it may be said that the accused have committed the offence of hurt, for which they have already undergone a sufficient duration of imprisonment, inasmuch as they have been stated to have undergone two years of imprisonment. Accordingly, the appeal is allowed. The judgments of the Trial Court as well as the High Court are set aside. The appellants are acquitted of the charges levelled against them. They should be released forthwith, if they are not required in any other case.”

34. In Sham Singh vs. State of Haryana 2018 SCC Online SC 1042, it has been held in paras 26 and 27:

“26. The evidence of the victim/prosecutrix and the Aunt P.W.10 are unreliable, untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist ourselves to place on record that the prosecution has tried to rope in the appellant merely on assumption, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems to be neither the truth, nor wholly the truth. The findings of the court below, though concurrent, do not desire the merit of acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face of record resulting in serious and grave miscarriage of justice to the appellant.

27. We find that the trial court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape.”

35. In view of the aforesaid law laid down by the Hon’ble Supreme Court (supra), law can be reiterated that though an accused can be convicted under Section 376 I.P.C. on the basis of sole testimony of the prosecutrix if such testimony is worthy of credence and inspires confidence and is of sterling quality then corroboration from other evidence is not required, but like in this case where statement of the prosecutrix suffers from material inconsistency and contradictions, is infirm and does not inspire confidence and there is no other material may be even short of corroboration to support the prosecution case, so also the fact that statement of PW-2 (Dr. Yamini Badal) does not support the prosecution case and the statement of PW-5 (investigating officer) also does not inspire confidence as once the clothes of the prosecutrix were already seized and sent for forensic examination by PW-2 on 12.09.2015, the investigating officer (PW-5) could not have again seized the clothes of the prosecutrix on 17.09.2015 and no explanation regarding this could be given by the prosecution and coupled with the fact that independent witness of the alleged seizure on 17.09.2015 namely Sri Pal has not been produced before the Court and no finding on this aspect has been recorded by the learned trial court, I am of the view that looking to the totality of the evidence and other material on record, I am unable to agree with the conclusion arrived at the trial court. Accordingly, the judgment dated 03.08.2018 passed by Additional Sessions Judge, F.T.C., Lakhimpur Kheri, is set aside. The appellant is acquitted of all the charges levelled against him. The appellant is directed to be released forthwith if he is not required in any other case.

36. The appeal is accordingly allowed.

(Karunesh Singh Pawar,J.) February 28, 2020 R.C.

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