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Himachal Pradesh High Court · body

2015 DIGILAW 1976 (HP)

Sanjay Kumar v. State of Himachal Pradesh

2015-12-28

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan J. These appeals by the appellants/accused seek to challenge the judgment and order of conviction passed by learned Sessions Judge, Bilaspur, H.P., whereby and where under the Sessions Judge convicted the appellant, Sanjay Kumar who was charged under Sections 363, 366, 506, 376, 201 read with Section 34 IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs.20,000/- under Section 376 IPC, in default of payment of fine further undergo simple imprisonment for one year, under Section 363 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo simple imprisonment for six months, under Section 366 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo simple imprisonment for six months and under Section 201 IPC to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo simple imprisonment for three months. Appellant Chaman Shukla was convicted to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- under Section 201 IPC, in default of payment of fine, he shall further undergo simple imprisonment for three months. All these sentences shall run concurrently. 2. Briefly stated the prosecution story is that the prosecutrix, aged about 14 years, is the younger daughter of Parkash Chand (PW-5 who is a ‘Katha Vachak’ (Religious story teller). In the month of March, 2012, PW-5 was giving discourse on ‘Bhagvat Katha’ in Sri Naina Devi temple at Sohra Buins and on 30.3.2012, his wife Shanta Sharma, daughter Tanu Sharma (PW-2) and the prosecutrix (PW-13) also went to listen the ‘Katha’ (Religious story). During Katha, PW-2 asked the prosecutrix to take her son, aged two years, to bed for sleeping in a room of the temple. When the prosecutrix did not return back after a long time, PW-2 went to the room where she found her son sleeping, but she did not find the prosecutrix. Then she informed her in-laws and others and they started searching her, but failed. The family had suspicion that the accused Sanjay Kumar had kidnapped the prosecutrix. PW-2 also telephoned her husband, Narender Shail (PW-1) and informed him about the missing of prosecutrix. Thereafter, PW-1 made complaint Ex. Then she informed her in-laws and others and they started searching her, but failed. The family had suspicion that the accused Sanjay Kumar had kidnapped the prosecutrix. PW-2 also telephoned her husband, Narender Shail (PW-1) and informed him about the missing of prosecutrix. Thereafter, PW-1 made complaint Ex. PW-1/A at the Police Station, Barmana and on that basis, FIR, Ext.PW-16/A was registered and endorsement of this was also made on the Rukka, which is Ex. PW- 16/B. 3. On 1.4.2012, accused Chaman Shukla went to the Police Station, Rampur accompanied by the prosecutrix and intimated that he had found her walking on the road at Narkanda on 30.3.2012 and then taking pity, brought her to his home. After the prosecutrix was produced at Police Station, Rampur, intimation was sent to Police Station, Barmana. Then a party consisting of police officials and the relatives of the prosecutrix went to Rampur and the prosecutrix was handed over to the said team vide memo Ex. PW-21/A. Rapat in this regard was also made in Rojnamcha at Police Station, Rampur, which is Ex.PW-21/B. 4. The police moved an application Ex. PW-7/A on 2.4.2012 for medical examination of the prosecutrix and MLC is Ex. PW-7/B. The accused Sanjay Kumar was also arrested and an application Ex.PQ-10/A for his medical examination was moved to the Medical Officer, Regional Hospital, Bilaspur on 4.4.2012 and the MLC is Ex. PW-10/B. 5. During the police investigation, it was revealed that accused Sanjay Kumar kidnapped the prosecutrix in his Alto Car bearing No. HP-24-8684 on 30.3.2012 and they spent that night at the house of Jawala Devi (PW-6) at village Thaila Chakti, Tehsil Rampur, District Shimla where he also committed rape on her. On the next day, she was kept to the house of accused Chaman Shukla. The accused Chaman Shukla along with other co-accused tried to save accused Sanjay Kumar by forcing the prosecutrix to give statement that she came to Rampur of her own and further tried to mislead the police. The car bearing No. H.P.-24-8684 was found at the house of accused Sanjay Kumar and it was taken into possession vide memo Ex. PW-3/A along with its documents and one sim of Vodafone in the presence of witnesses, Babu Ram and HHC Dhani Ram. The car bearing No. H.P.-24-8684 was found at the house of accused Sanjay Kumar and it was taken into possession vide memo Ex. PW-3/A along with its documents and one sim of Vodafone in the presence of witnesses, Babu Ram and HHC Dhani Ram. PW-6 also handed over one shirt of the prosecutrix which was forgotten by her at the former’s house and this was recovered vide memo Ex.PW-1/B in the presence of witnesses Babu Ram and Parkash Chand. Map of the place where the prosecutrix was kept by the accused is Ex. PW-14/B. 6. With regard to the age of the prosexutrix, the police produced her birth certificate Ex.PW-8/A wherein her date of birth was recorded as 9.12.1997. In the birth register is Ex.PW-8/B, the entry of birth was recorded as 9.12.1997. The same date of birth is recorded in the family register Ex.PW-8/C. 7. PW-11, who accompanied the prosecutrix to the hospital, has deposited two parcels with the MHC, Police Station Barmana on 4.4.2012 and entry of this was made in the Rojnamcha, the copy of which is Ex. PW-17/A. PW-4 has deposited one more parcel, which was handed over to him by the Medical Officer, Regional Hospital, Bilaspur with the MHC, Police Station Barmana and reference of this has been made in the Rojnamcha, the copy of which is Ex.PW-17/B. 8. On 7.4.2012 SI Deep Chand took into possession one mobile phone along with Alto Car vide memo Ex.PW-3/A and deposited these in the Malkhana and the entry incorporated in the Malkhana register is Ex.PW-18/A. 9. On 9.4.2012 SI Deep Chand deposited one more sealed parcel in the Malkhana and entry ExPW-18/B of this was made in the Malkhana register. 10. On 11.4.2012, three parcels, two envelopes, copy of FIR, copy of MLC and sample seals sent through Constable Kamal Kishore to R.F.S.L., Gutkar and the copy of R.C. is Ex.PW-18/C. The police also moved an application before the Judicial Magistrate, Bilaspur for recording the statement of the prosecutrix under Section 164 Cr.P.C. and after passing order Ex. PW-19/A, statement Ex. PW-13/A was recorded. 11. After completion of investigation, the police came to conclusion that the accused kidnapped the prosecutrix to force her to have sexual intercourse with him, raped her and further threatened her with dire consequences if she disclosed anything regarding this incident. PW-19/A, statement Ex. PW-13/A was recorded. 11. After completion of investigation, the police came to conclusion that the accused kidnapped the prosecutrix to force her to have sexual intercourse with him, raped her and further threatened her with dire consequences if she disclosed anything regarding this incident. The accused were also alleged to have mislead the police to screen the principal offender. Consequently, the police filed the challan under Section 363, 366, 506, 376 and 201 of Indian Penal Code in the Court of learned Chief Judicial Magistrate, Bilaspur, who vide order dated 12.10.2012 committed the case to learned Sessions Judge, Bilaspur. 12. On consideration, charge under Sections 363, 366, 506, 367, 201 read with Section 34 IPC was framed against accused Sanjay Kumar and under Section 201 read with Section 34 IPC against remaining two accused Chaman Shukla and Lekh Ram to which they pleaded not guilty and claimed trial. The learned Sessions Judge convicted the accused Sanjay Kumar and Chaman Shukla as aforesaid, whereas accused Lekh Ram was acquitted from the charge framed against him. 13. The prosecution has examined as many as 21 witnesses in support of this case. Narender Shail (PW-1), brother of the prosecutrix lodged the FIR, Tanu Sharma (PW-2), wife of PW- 1 and Parkash Chand (PW-5), father of the prosecutrix, who were present with the prosecutrix at Shri Naina Devi temple at Sohra Biuns, Babu Ram (PW-3), witness to Ex.PW-3/A and Ex.PW-3/B, HHC Dhani Ram (PW-4), who accompanied the accused to the Regional Hospital, Bilaspur where his medical examination was conducted, Smt.Jawala Devi (PW-6), in whose house the accused and the prosecutrix stayed at night on 30.3.2012 and where the rape was alleged to have been committed, Dr.Kavita Kumari (PW-7), conducted medical examination of the prosecutrix, Rakesh Kumar, Panchyat Secretary (PW-8), prepared birth certificate Ex.PW-8/A on the basis of birth register Ex. PW-8/B, Prem Singh (PW-9), accompanied the accused Lekh Ram and others to Rampur on 1.4.2012, Dr. PW-8/B, Prem Singh (PW-9), accompanied the accused Lekh Ram and others to Rampur on 1.4.2012, Dr. Satyendra Sharad (PW-10), medically examined the accused, LC Shabana (PW-11), accompanied the prosecutrix to the hospital, Constable Kamal Kishore (PW-12), deposited the case property with F.S.L., Gutker, prosecutrix (PW-13), SI Deep Chand (PW-14), Investigating Officer, SI Mukesh Kumar (PW-15), recorded the statements of some of the witnesses, SI Govind Ram (PW-16), registered the FIR, HC Yashwant Singh (PW-17) and HC Roshan Lal (PW-18), were MHCs during the relevant period, Anil Kumar, Civil Judge (PW-19), recorded the statement of the prosecutrix under Section 164 Cr.P.C., Yogesh Rolta (PW-20), prepared the challan and Inspector Sangat Ram Negi (PW-21), was posted as SHO, Police Station, Rampur Bushehar when the prosecutrix was produced before him by accused Chaman Shukla. 14. At the outset, it may be observed that the prosecutrix has been proved to be below 16 years of age and therefore, her consent in this case even if assumed to be there is immaterial and inconsequential. 15. The prosecutrix while appearing as PW-13 has stated that the accused was known to her, as they both belong to the same village and were on visiting terms. On 30.3.2013, she along with her family members had gone to temple Sri Naina Devi Ji in Village Sohra Biuns, where Bhagvat Katha was going on. At about 3:00 P.M. her nephew aged about 1 and ½ years started crying and she came outside the temple along with him in order to make him sleep. At about 3:30 P.M. she received a phone call on her mobile from the accused, who asked her to come downwards at the gate of the temple. She refused, as earlier also the accused used to tease her. However, on his instance, she went to talk to him. He asked her to sit inside the Alto Car to have a talk, to which she refused. On his assurance, the prosecutrix sat inside the car, where the accused disclosed that he was in love with her and wanted to marry her. She refused and tried to get down from the vehicle, but he started the vehicle. On this despite requests, the accused did not stop the car and when prosecutrix tried to raise alarm, the accused threatened her to do away with her life. She refused and tried to get down from the vehicle, but he started the vehicle. On this despite requests, the accused did not stop the car and when prosecutrix tried to raise alarm, the accused threatened her to do away with her life. Thereafter at about 9/10 P.M. on the same day, the accused informed her that they had reached at Rampur, where the accused took her to the house of one lady named Jawala and committed rape with her during night. On the next evening, the accused took her to the house of co-accused Chaman Shukla and left her there. On the next day, some people from her village came to the house of Chaman Shukla and amongst them was co-accused Lekh Ram, who asked to accompany them to Police Station Rampur and make a statement to the effect that she ran away from her house of her own, because her parents used to beat her. He also asked her to make a statement that she met the accused Chaman Shukla at Narkanda. The accused Lekh Raj had threatened her that if she did not make such statement he would do away with the lives of all family members. Thereafter the prosecutrix accompanied by accused Chaman Shukla came to the Police Station Rampur and on the basis of her statement Daily Diary Report Mark-Z1 was entered. Thereafter the prosecutrix along with her brother and two police officials including one lady constable came to Rampur in the evening and thereafter she proceeded to her house along with them. On the next day, the police officials took the prosecutrix to Regional Hospital, Bilaspur for conducting medical examination. She was medically examined and the clothes worn by her, were also taken into possession by the doctor. On 8.4.2012, she along with her family members and IO visited Rampur and identified the house of Jawala Devi where the accused had kept her and committed rape on her. She had left her kurta in the house of Jawala Devi, which was taken into possession from her house. 16. During the course of investigation, the prosecutrix has also got recorded her statement under Section 164 Cr.P.C, which was exhibited as Ex. PW-13/A. The prosecutrix was crossexamined at length on the lines suggestive of the fact that she of her own volition and will had accompanied the accused. 16. During the course of investigation, the prosecutrix has also got recorded her statement under Section 164 Cr.P.C, which was exhibited as Ex. PW-13/A. The prosecutrix was crossexamined at length on the lines suggestive of the fact that she of her own volition and will had accompanied the accused. The prosecutrix in her cross-examination had stated that the car had not stopped anywhere up to Rampur. She also admitted that she did not disclose anything to Jawala Devi or her family members and even thereafter did not disclose anything to co-accused Chaman Shukla or his family members, though she spent one night there. She also admitted that she had not disclosed at the Police Station, Rampur that the accused had raped her. She categorically admitted that she had not disclosed this fact to anyone. She did not even disclose to anyone right from Bilaspur to Rampur that the accused had kidnapped her. She specifically stated that the accused had committed rape with her at place Thali Chakti and not at the house of the co-accused Chaman Shukla. She further stated that the accused had committed rape with her in the night of 30.3.2012 and on 31.3.2012, she had stayed in the house of accused Chaman Shukla and no rape was committed with her on that day, as the accused Sanjay Kumar was not there. 17. PW-7 Dr. Kavita Kumar is the medical officer, who examined the prosecutrix on 2.4.2012 and as per her opinion, she had found injuries on the person of the prosecutrix of the dimension of less than 48 hours and because the hymen was torn plus local injury marks were present, possibility of rape according to her could not be ruled out, though final opinion was to be given after FSL report. After receipt of FSL report Ex. PW-7/C, this witness gave the final opinion that since human semen was found over the underwear of the prosecutrix, the possibility of attempt of rape could not be ruled out. She further opined that since the hymen was torn and there was inflation in hymen and human semen was found on the underwear of the prosecutrix, in her opinion, the possibility of rape could not be ruled out. The witness has been cross-examined at length, but her testimony remained unshaken. She further opined that since the hymen was torn and there was inflation in hymen and human semen was found on the underwear of the prosecutrix, in her opinion, the possibility of rape could not be ruled out. The witness has been cross-examined at length, but her testimony remained unshaken. The witness was given suggestion as to whether the semen found on the exhibits has been matched with the semen of the accused, to which the witness answered in negative. She also feigned ignorance to the suggestion that the human semen and blood may have been planted on the clothes of the victim before she had been produced before her. 18. The statements of other witnesses are either formal or in line with the statement of prosecutrix and have been discussed in detail by the learned Sessions Judge. In so far as, the allegation of rape is concerned, it is the sole testimony of the prosecutrix, coupled with the statement of doctor PW-7, on the basis of which the learned Sessions Judge has convicted accused Sanjay Kumar. 19. Mr.Anup Chitkara, learned counsel for the appellant Sanjay Kumar would argue that his client has been falsely implicated merely on suspicion on the pretext that he used to tease the prosecutrix, whereas the prosecutrix had run away of her own and, therefore, the accused was not responsible for abduction or alleged rape. He further argued that the prosecutrix in her statement had categorically stated that rape had been committed on her in night of March 30, 2012, whereas, the entries in DDR Ex. PW-21/A and PW-21/B establishes that the prosecutrix was with the other accused Chaman Shukla during the night of March 30, 2012. On the basis of such discrepancies, learned Sessions Judge had acquitted the co-accused Lek Ram, whereas accused Sanjay Kumar and Chaman Shukla were ordered to be convicted. It is further argued that the prosecutrix had alleged that the rape was committed on her in the house of PW-6 Jawala, who did not support the version of the prosecutrix. Learned counsel for the appellant would further contend that it was the specific case of the prosecution that the police had traced the prosecutrix by following her phone through telephone tower location, whereas, no such details were produced during the course of trial and therefore, an adverse inference under Section 114 of the Evidence Act deserves to be drawn. Learned counsel for the appellant would further contend that it was the specific case of the prosecution that the police had traced the prosecutrix by following her phone through telephone tower location, whereas, no such details were produced during the course of trial and therefore, an adverse inference under Section 114 of the Evidence Act deserves to be drawn. According to learned counsel, no DNA was conducted to link and connect the semen of the accused with the semen alleged to be recovered from the clothes of the prosecutrix and lastly it is argued that there is no presumption in law that the version of the prosecutrix is a gospel truth and it cannot be held that the prosecutrix must be believed irrespective of the improbabilities in her story and that the burden of proof is always on the prosecution and it never shifts. 20. It is now well settled principle of law that conviction can be founded on the sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. It is also equally settled that 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 the given circumstances. (Refer State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384 , State of Himachal Pradesh Vs. Asha Ram AIR 2006 SC 381 , Rajinder Vs. State of Himachal Pradesh, (2009) 16 SCC 69 .) However, it has to be borne in mind that a case of sexual assault has to be proved beyond reasonable doubt as any other case and there is no presumption that the prosecutrix would always tell the entire story truthfully. 21. In Rajoo Vs. State of Madhya Pradesh (2008) 15 SCC 133, the Hon’ble Supreme Court held that the testimony of a victim of rape has to be treated as if she is an injured witness but cannot be presumed to be a gospel truth. It was held that:- “9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. It was held that:- “9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.” 22. In Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566 , it was held as under:- “7. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. …..” 23. In Dinesh Jaiswal Vs. State of MP, (2010) 3 SCC 323, the Hon’ble Supreme Court held as under:- “10. Mr. C.D. Singh has however placed reliance on Moti Lal's case (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one.” 24. In Abbas Ahmad Choudhary Vs. State of Assam, 2010 (12) SCC 115 , the Hon’ble Supreme Court observed that:- “5. We are however, of the opinion that the involvement of Abbas Ahmad Choudhary seems to be uncertain. We are of the opinion that the present matter is indeed an exceptional one.” 24. In Abbas Ahmad Choudhary Vs. State of Assam, 2010 (12) SCC 115 , the Hon’ble Supreme Court observed that:- “5. We are however, of the opinion that the involvement of Abbas Ahmad Choudhary seems to be uncertain. It must first be borne in mind that in hery statement recorded on 17th September, 1997, the prosecutrix had not attributed any rape to Abbas Ahmad Choudhary. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haq and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Choudhary too had been apprehended and taken to the police station by P.W. 5 -Ranjit Dutta the Constable. The Constable, however, made a statement which was corroborated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the prosecutrix had been brought to the police station as Abbas Ahmad Choudhary had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully.” 25. In Rai Sandeep @ Deepu Vs. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi ( 2012 8 SCC 21 , the Hon’ble Supreme Court commented about the quality of the sole testimony of the prosecutrix which would be made basis to convict the accused and it was held:- “15. In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 26. Now in case the testimony of the prosecutrix is tested on the aforesaid exposition of law, it would be evident that there is no evidence whatsoever led by the prosecution to establish the presence of the accused either at Naina Devi Ji or Thali Chakti (Rampur), save and except sole testimony of the prosecutrix. In so far as the best person, who could have deposed about the presence of the accused at Rampur was Jawala, who though examined, had turned hostile and did not utter a single word regarding the presence of the accused at Rampur, where the offence of rape is alleged to have been taken place. The other witnesses would have thrown some light on the presence of the accused at Rampur, though on hear say basis, were those who accompanied Lekh Ram on the next day and visited the house of accused Chaman Shukla, but unfortunately none of them have been examined. 27. The Investigating Officer, PW-14 in his cross-exmaination has categorically stated that except the statement of Jawala Devi, he had not collected any other evidence regarding the presence of the accused at Thali Chakti (Rampur). He admitted that he had not collected any evidence as to where the car of the accused had been plied during the relevant period. He has not associated the husband of Jawala Devi in the investigation on the ground that he was not present in the house. He further admitted that Jawala Devi had a daughter, who was present in the house, but he had not recorded her statement. He further admitted that the prosecutrix in her statement Ex. He has not associated the husband of Jawala Devi in the investigation on the ground that he was not present in the house. He further admitted that Jawala Devi had a daughter, who was present in the house, but he had not recorded her statement. He further admitted that the prosecutrix in her statement Ex. PW-14/A stated that the accused Sanjay Kumar had committed rape with her in the house of Jawala Devi and further clarified that the prosecutrix did not know Jawala Devi. However, he further admitted that he has not recorded such statement of the prosecutrix that she did not know Jawala Devi at that time. He further admitted that in the supplementary statement recorded on 8.4.2012, the prosecutrix had not disclosed anything about the fact that the rape was committed with her in the house of Jawala Devi. He categorically admitted that in statement Ex. PW-14/A and also in supplementary statement dated 8.4.2012, the prosecutrix had never disclosed that rape had been committed upon her at Rampur. 28. There is no evidence lead by the prosecution except the prosecutrix to even remotely suggest as to what was the relation of accused Sanjay Kumar with Jawala Devi and how he knew her. There is further nothing on record to suggest that even the main accused Sanjay Kumar was known to Chaman Shukla. At least bare minimum evidence to prove the relationship between the parties be it by acquaintance, friendship, relationship etc. ought to have been led, or else how a lady welcome any stranger at night accompanied by a minor girl and permitted them to stay in her house and the accused would conveniently rape the prosecutrix. 29. It was incumbent upon the prosecution to have at least establish the presence of the accused at the place where the alleged offences, more particularly, the offence of rape is alleged to have been committed. 30. In this background, if the testimony of the doctor is adverted to, it would only reveal that at the best, the prosecutrix may have been subjected to a sexual offence and the possibility of rape could not be ruled out. Obviously, the prosecutrix may have been subjected to rape, but by whom, still remains the unanswered question. 30. In this background, if the testimony of the doctor is adverted to, it would only reveal that at the best, the prosecutrix may have been subjected to a sexual offence and the possibility of rape could not be ruled out. Obviously, the prosecutrix may have been subjected to rape, but by whom, still remains the unanswered question. Once human semen had been found on the underwear of the prosecutrix, then it was incumbent upon the prosecution to have match, link and connect the same with the accused. 31. There is no doubt that rape causes great distress and humiliation to the victim of rape but at the same time false allegation of committing a rape also causes humiliation and damage to the accused and accused has also rights which are required to be protected and the possibility of false implication has to be ruled out. The Hon’ble Supreme Court in Radhu Vs. State of Madhya Pradesh, 2007 Cri. LJ 4704 had in this context noted as follows:- “5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.” 32. In this backdrop now in case the DDR entries Ex. PW- 21/A and Ex. PW-21/B are perused, these reveal that the prosecutrix during the night of March 30, 2012 was at the house of accused Chaman Shukla, as is reflected in these entries. But then it is the specific case of the prosecutrix herself that in so far as Chaman Shukla is concerned, he has not even touched the prosecutrix and moreover he has also not been charged with the offence of rape. It is also not the case of the prosecution that the entries in the DDR had been erroneously or incorrectly recorded, rather it is the prosecution, which has placed heavy reliance on these entries. 33. It is in this background that the prosecution was required to prove and establish that the accused Sanjay Kumar as the time of commission of the alleged offence was in fact in and around Rampur, more particularly at Thali Chakti, where the rape is alleged to have been committed. The same could have been conveniently established through the telephone tower location, especifically when the case of the prosecution itself was that they had traced the whereabouts of the prosecutrix by following her mobile phone through telephone tower location. Having failed to prove and place on record any such details, this Court is left with no other option, but to draw an adverse inference against the prosecution or else there was no reason why such important piece of evidence should have been withheld or not placed on record by the prosecution. 34. Having failed to prove and place on record any such details, this Court is left with no other option, but to draw an adverse inference against the prosecution or else there was no reason why such important piece of evidence should have been withheld or not placed on record by the prosecution. 34. On the basis of the aforesaid discussion, it can conveniently be held that the charges of rape against accused Sanjay Kumar have not been established. In so far as the other charges are under Sections 363, 366, 506 and 201 are concerned, once the presence of the accused at Naina Devi Ji or at Thali Chakti (Rampur) has not been established, therefore, even these charges are not at all attributable, much less, proved against the principal accused. 35. Coming to the case of co-accused Chaman Shukla, it would be noticed that even the prosecutrix does not make any allegation of rape etc. against the said accused and therefore, he has only been charged with the offence under Section 201 and 34 IPC, but then the question arises as to whether these charges have been established against him. 36. Admittedly, even as per the prosecutrix version, no offence of rape was committed upon her by accused Sanjay Kumar, the main accused at the time when she was alleged to have been taken to the house of accused Chaman Shukla, rather her version is that accused Sanjay Kumar had already left the house. Now did accused Chaman Shukla have even the remotest knowledge regarding the fact that the prosecutrix have been subjected to rape, so as to attract the applicability of Sections 34 and 201 of IPC. The answer is obviously in the negative. 37. From the entire evidence led by the prosecution, it is absolutely clear that the appellant Chaman Shukla had no knowledge about the commission of any offence. Thus it can be safely concluded that the accused Chaman Shukla has simple been convicted on the basis of suspicion. The learned Court below has wrongly and erroneously concluded that appellant Chaman Shukla had tried to mislead the investigating agency by giving false information and creating false evidence. Once the presence of main accused Sanjay Kumar at the place Thali Chakti (Rampur) itself is not established, then there is no question of the appellant Chaman Shukla shielding the main accused. The learned Court below has wrongly and erroneously concluded that appellant Chaman Shukla had tried to mislead the investigating agency by giving false information and creating false evidence. Once the presence of main accused Sanjay Kumar at the place Thali Chakti (Rampur) itself is not established, then there is no question of the appellant Chaman Shukla shielding the main accused. In absence of any clear and cogent evidence placed on record by the prosecution that the accused had knowledge about the commission of alleged offence, his conviction for the charged offence cannot be sustained. 38. In view of aforesaid discussion, there is no scope of sustaining the conviction and sentence imposed upon the appellants. Resultantly, these appeals succeed and are hereby allowed. The judgment and order of sentence dated 4.12.2013 passed by learned Sessions Judge, Bilaspur, convicting and sentencing the appellants are set aside and the appellants are accordingly acquitted of the charges. Their bail bonds shall stand discharged.