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Judgment
Instant appeal is directed against the judgment, dated 25-5-2015 passed by the Trial Court (3rd Additional Sessions Judge, Jammu) convicting
the appellants under Sections 458 and 376(2)(g) IPC, and order dated 26-5-2015 awarding the punishment of rigorous imprisonment for a period
of seven years each under section 458, IPC and fine of Rs. 20,000/- in default of fine to undergo simple imprisonment for a period of three months
each. Punishment of rigorous imprisonment of 14 years under Section 376(2)(g), IPC and fine of Rs. 50,000/- each in default of payment of fine
shall have to undergo simple imprisonment for a period of six months each. Both the sentences imposed have been directed to run concurrently.
The period undergone in custody during investigation has to be set off. In case fine is realized, then the amount of fine, i.e. Rs. 1.4 lakhs shall be
paid to the prosecutrix as compensation.
Registration of the case as Crime No. 139/2008, P/S Satwari for commission of offences punishable under Section 458/376, IPC on
completion of investigation culminated in presenting the charge sheet (challan) before the Court of Judicial Magistrate 1st Class (Munsiff) Jammu
on 6-10-2008. On the same date has been committed to the Court of Sessions Judge, Jammu, who has assigned it to the 1st Additional Sessions
Judge, Jammu. Later on has been transferred to 3rd Additional Sessions Judge, Jammu.
Charge against both the accused on 27-10-2008 has been specifically framed for commission of both offences however words '' Section 358
IPC'' has remained to be mentioned in the charge sheet so framed, which in any case is not to cause any prejudice to the accused because the
charge framed is clear and has been clearly known to the accused all along during trial.
Both the accused have pleaded not guilty and claimed to be tried. The prosecution in support of its case out of (thirteen) 13 listed witnesses has
produced, nine (9) witnesses w.e.f. 27-10-2013 when prosecution evidence was closed.
On 13-12-2013, the accused were examined in terms of Section 342, Cr.P.C., where-under they denied complicity in the crime and claimed to
be innocent. As required under Section 273, Cr.P.C. (State Code), while hearing the Addl. Public Prosecutor as well as counsel for the defence,
the trial Court opined that the accused are required and, as such, were directed to enter upon the defence.
The accused has failed to produce any evidence/witness in defence despite repeated opportunities from 13-12-2013 up to 25-08-2014 when
defence evidence was closed. The case was posted for final hearing but in the meantime, an application under Section 540, Cr.P.C. was filed by
the prosecution which has been disposed of vide detailed order, dated 2-3-2015.
The filing of said application as per the order so recorded was necessitated by the fact that the FSL Srinagar after conducting the examination of
Exhibits sent to it for chemical examination have issued the report vide No. 254/Leg/Sero dated 28-2-2009, wherein Exhibits S-71/09 and S-
72/09 are mentioned instead of S-70/09 and S-71/09.
The original FSL report was called. The IO had sent the report back to the FSL for its correction. The FSL after making necessary correction
had issued a Corrigendum vide FSL/396/Leg/Sero, dated 23-05-2009 and had sent the same to the IO but the original report was not sent the
same to the IO but the original report was not sent back as such same was required to be summoned from FSL Srinagar. Scientific Officer,
Shagufta Akhtar who had conducted the chemical examination of the said Exhibits was also required to be summoned. Same was also allowed by
the trial Court and Director, FSL had been directed to produce the original FSL report issued vide No. 254/Leg/Sero, dated 28-2-2009.
Presence of Scientific Officer Shagufta Akhtar was also ordered for examination who has been thereafter examined on 6-5-2015. On the same
date both the APP as well as counsel for the defence sought time for final arguments.
Final arguments were concluded and the final judgment was passed on 25-05-2015.
Before coming to the rival submissions/contentions of the learned counsel for the appellants and of the learned Sr. AAG, for appreciating the
matter in its right perspective, it shall be quite advantageous to precisely notice the background of the case and the prosecution evidence.
The prosecutrix name withheld had lodged the report Ext-P1 in P/S Satwari on 23-8-2008 to the effect that she alone resides in a rented room
situated at village Belicharana. On 22-8-2008 at about 10 p.m., she went to sleep. Before sleep, she bolted the wire mesh door from inside.
During the said intervening night of 22/23rd-08-2008 at about 3 a.m. someone from outside forcibly pushed the wire mesh door and intruded.
Hearing the sound, she woke up and found two persons one namely ''Kala'' whose mother''s name is ''Muneera'', resident of Belicharana
accompanied by another person whom she can identify but does not know his name or address. Both the persons against her consent while
breaking the door entered into her room, first person son of Muneera raped her whereas another person gagged her mouth, then another person
raped her whereas the first one gagged her mouth. Both told her that in case she raises voice, she will be killed, then left the place. She was
frightened. In case, she raised the voice, both would come back and kill her. Based on this report, case was registered as FIR No. 139/2008, P/S
Satwari. During the course of investigation, statement of the prosecutrix was firstly recorded under Section 161, Cr.P.C., thereafter under Section
164-A, Cr.P.C. Statements of other witnesses were also recorded.
PW-1 prosecutrix (name withheld) in her examination-in-chief has stated that in the year 2007, she out of her free will had married Arun Singh
Salathia. In the year 2008, she was having some dispute with her husband, as such, she was residing alone in a rented accommodation at
Belicharana, during the night of 22-8-2008 at about 2.30 a.m., while she was pregnant and was asleep in her room, she heard noise of pushing
door of the room, she woke up, the moment she could stand up, accused after forcibly breaking the wire mesh door had come inside, at that time,
the light of the room was off, however, there was light outside in the verandah and the said light was also coming inside the room, the moment
accused came inside the room, A-1 gagged her mouth with his hands as she was crying, thereafter the other accused namely Rajiv Kumar had
gagged her mouth and made her to lie on the bed, A-1 had forcibly removed her clothes and committed rape on her, therefore A-2 had also
committed rape on her, both the accused had committed said crime against her consent, while leaving from the said place, accused had threatened
her that in case she will disclose the said act to any one, they will kill her, at that time, she was in 8th month of pregnancy. Prior to the occurrence,
she had requested the accused that as she was in her advanced stage of pregnancy, so they should not commit any such act on her, however,
despite her said request, they did not spare her. When the accused left the said place, she did put on her clothes and came outside in the verandah
and thereafter, in the wee hours of the morning, she had gone to police post, Belicharana, from where she was taken to police station, Satwari,
where she after getting an application written from some ASI, lodged the written report, she has admitted the contents of written application, which
bears her signature and the same is exhibited as Ext. P1. Upon her report, FIR was lodged in the police station, which also bears her signature and
the same has been exhibited as Ext-P-1, thereafter, police had taken her to ''Gandhi Nagar Hospital'' for her medical examination and had also got
recorded her statement before a Magistrate, which is on the file and bears her signature, police had also seized her clothes. Accused Dawood
Khan resides at a short distance from her house, his father is also known to her, however, she had seen the other accused on the day of
occurrence only. After the arrest of other accused, police had called her in the police station, where she had identified accused Rajiv Kumar. At
that time, Rajiv Kumar was standing along with other persons and she had identified accused Rajiv Kumar thrice, at that time, a revenue officer
was also there.
In cross-examination by the defence counsel, she has stated that there was no house near to her said house at Belicharana, however, the houses
were thirty metres away from the said house, people were residing in the said houses, at that time, it was very calm and one could hear the cries,
however, as the accused had gagged her mouth, so she could not raise any alarm, her bed was at a distance of fifteen feet from the door, she
woke up after hearing somebody knocking the door, the accused had first knocked and then pushed the door, resultantly, the door was broken.
She has further stated that nobody had come there at that time. She has further stated that when the accused were committing rape on her, she
could not move as she was pregnant. After wearing her clothes, when she had gone out in the verandah, she had called one lady namely Suman,
who had remained with her till morning. Accused Dawood had untied the string of her salwar and then removed her salwar as well as shirt,
accused Dawood had also removed his pant, however, he had not removed his shirt. House of ''Suman'' was at a distance of 100 feet from her
house, she was weeping and had called ''Suman'' there, she does not know as to whether somebody else had heard the noise of her weeping, ''
Suman'' had accompanied her up to police post, Belicharana. She has further stated that she had not accompanied the police to the place of
occurrence, as such, she cannot say as to what the police had done there, however, she was in police station. She was not on talking terms with
her parents as she had contracted her marriage out of her own, her parents had no knowledge about the occurrence till date, however, her
husband had knowledge about the same. She had denied the suggestion of learned defence counsel that no such occurrence had taken place with
her. Her husband had not come there on that day as he was undergoing training at Udhampur, after the occurrence, she had left that room, after
ten days, her statement was recorded by the Magistrate, after 2/3 days of the occurrence, police had arrested accused Rajiv Kumar and got him
identified, however, accused Dawood was arrested on the first day. She has further stated that when accused Rajiv had committed rape on her, he
too had removed his pant, her salwar and underwear were seized by the police.
PW-2 Roshan Din and PW-3 Ghulam Hussain who were cited as witnesses to the seizure memo regarding trouser (salwar of prosecutrix) and
underwear (Kachha of accused No. 1 Dawood Khan), in their testimony they have shown a volte face so were declared hostile. They have not
denied their signatures on the seizure memos by claiming that on a blank paper, their signatures were taken.
PW.4 Dr. Naseem Choudhary (Gynaecologist) has stated that the prosecutrix was examined by her. She has issued certificate which is
available on the file exhibited as Ext-4A. In her opinion, the prosecutrix was in her last trimester of pregnancy and was habitual to inter-couse and
might have undergone intercourse within 72 hours.
PW-5 Dr. S. L. Fotra, Pathologist has stated that on 23-8-2009, he had received two dried vaginal smear slides labelled MLC No. 731 from
Dr. Naseem Choudhary, Gynaecologist, Government Hospital Gandhi Nagar, Jammu of prosecutrix name ''withheld'' at 12.15 p.m. Microscopic
examination of both vaginal smear slides showed the presence of spermatozoa. The report which she had prepared is available on the file has been
exhibited as Ext-P5. In the cross-examination, has deposed that life span of spermatozoa is upto to 24 hours but can be seen Non-(dead) up to 48
hours. He had received the samples in tired conditions.
Listed witnesses (PWs. 6, 7 and 8) have not been produced.
PW-9 Ram Prakash, Naib Tehsildar has stated that on 29-8-2009, two sealed packets marked as A and B were produced before him by
Mohd. Ashraf No. 4637 of NGS of P/S Satwari for resealing. The seals of the packet were intact when he resealed them. He has also issued
certificate. Forensic Director, FSL was to open the packets and conduct the chemical examination of the material inside the said packets. He has
proved the contents of the certificate which he has issued. Same stand exhibited as Ext-P9.
PW-10, Anil Mangotra, Tehsildar has stated that in the month of September, 2008, he was posted as Naib Tehsildar Relief pursuant to the
order, dated 18-9-2008 passed by District magistrate, he had gone to P/S Satwari for conducting identification parade of accused Rajiv. He had
got the suspect identified from the victim thrice. She identified the suspect Rajiv Kumar who first was standing at 5th number, second time again
she identified him when he was standing at 7th number and thirdly at 3rd number. In the cross-examination, he has qualified that on all three
occasions, he had got the accused identified after changing clothes and position of the accused (A-2).
PW-11 Shagufta Akhtar, Assistant Scientific Officer, FSL Srinagar has stated that two sealed packets marked as ''A'' and ''B'' submitted by
P/S Satwari in case FIR No. 139/2008 under Section 376/109, IPC sealed by Executive Magistrate, Jammu were received. On opening packet
''A'', one shalwar allegedly stained with seminal stains marked as Exhibit No. S-70/09 and packet ''B- containing one underwear allegedly stained
with seminal stains marked as Exhibit No. S-71/09 by her. Same were examined and had remained under her immediate custody until the
examination was completed. On examination it was found as under:
Human seminal stains were detected on both the exhibits marked as S-70/09 and S-71/09 while giving the report, the result of the report S-
71/09 and S-72/09 has been inadvertently written which in fact was S-70/09 and S-71/09. The mistake was corrected vide corrigendum,
dated 25-3-2009. Corrigendum in original is attached with file which bears her signatures and exhibited as Ext-P-SA. The original report
was prepared by her and same bears her signatures and attested photocopy of the FSL report also bears her signatures. Same has been
exhibited as Ext-P-SA-1.
PW12, Mohd. Ashraf Bhatti (IO). His statement as reflected in the judgment impugned is quoted hereunder:
PW 12, Mohd. Asharf Bhatt, I.O. in his examination-in-chief has stated that on 23-8-2008, he was posted in police station, Satwari. FIR
for the offences under Section 450/376, IPC was registered against the accused and investigation of the case was entrusted to him. During
the course of investigation, he had found that FIR was lodged on the written report, Ext. P-1 of prosecutrix. In her application/report, she
had mentioned that in the night while she was asleep in her room at Belicharana, both the accused forcibly opened the door of the room and
committed rape on her, at the time of occurrence, the prosecutrix was pregnant, the occurrence had taken place in the previous night of 23-
8-2008 and the FIR was registered at 6.45 in the morning, he had prepared the site plan of the place of occurrence on spot, which is in his
handwriting bears his signature and has been exhibited as Ext. P-13, he had also got conducted medical examination of the prosecutrix and
seized the salwar of the prosecutrix, prepared seizure memo, which has been exhibited as Ext. P-13/1, he had also seized underwear
(Kachha) of accused Dawood Khan and prepared seizure memo of the same, which is on the file, he has admitted the contents of the said
seizure memo which has been exhibited as Ext. P-13/2. After getting the seized material resealed, he had sent the same to FSL for its
chemical examination, he had also got recorded the statement of prosecutrix under Section 164-A, Cr.P.C., accused Dawood Khan was
already known to the prosecutrix, however, the other accused was not known to her, so he had got conducted identification parade of said
accused through a Magistrate and in the identification parade, prosecutrix had identified accused Rajiv Kumar, he had also recorded
statements of witnesses under Section 161, Cr.P.C. and after his investigation, offences under Sections 458/376/34, IPC were made out
against accused.
On cross-examination by learned defence counsel, he has stated that the prosecutrix had come alone to the police station for lodging report, at that
time, he was present in the police station, FIR is in the handwriting of Munshi of the police station, prosecutrix had made the written report to SHO
on the basis of which FIR was registered, he does not know as to who had written the said report Ext. P-1. When the prosecutrix had made the
report to SHO, he (witness) was in his room, later on, SHO had handed over the investigation of the case to him. He had commended
investigation on 23-8-2008 at 7.00 a.m., in the morning, occurrence had taken place at 3.00 a.m., in the night, he along with constable Kiran Kour
and Ratta Lal had firstly gone to the hospital and thereafter at the place of occurrence, from the hospital, he had gone to the house of the
prosecutrix, seized salwar of the prosecutrix from her house, prepared seizure memo on spot, the witnesses of the seizure memo are residents of
the same place, their houses are at a distance of one furlong from the house of the prosecutrix. He has further stated that prosecutrix after wearing
other salwar, had handed over the salwar which she was wearing at the time of occurrence to him, he had seized the same, 2/3 ladies were also
present there, he does not know their names, nor he had cited them as witnesses to the seizure of salwar. He has further stated that prosecutrix had
told him that at the time of occurrence, accused had gagged her mouth, she couldn''t raise any alarm, the house in which she was residing was
comprising of three rooms, there was a lawn also, the house belongs to Mohd. Rashid, resident of Poonch, Mohd. Rashid along with his family
was residing in the said house, however, he had not enquired anything from the house owner (landlord) as on the day of occurrence, he was not in
his house but had gone to Poonch. He had also not enquired from other persons as the occurrence had taken place at 3.00 a.m., in the night. He
has further stated that he had enquired from the people of the area and they had told him that as the occurrence had taken place in the night, so
they were not knowing anything about the occurrence, the prosecutrix was residing alone in the said house. He has further stated that prosecutrix
was a married lady, she was not a divorcee, her husband was serving in police department and was posted at Banihal, he (witness) had not called
husband of the prosecutrix and enquired anything from him as the prosecutrix had told him that she was not having good relations with her
husband, prosecutrix had also told him that she against the consent of her parents had married a Hindu boy, so she had told him that he should not
call her father. He has further stated that he had recorded the statement of prosecutrix on 23-8-2008 and had got her statement recorded under
Section 164-A, Cr.P.C. on 17-9-2008. Lady constable was also accompanying him when he had taken the prosecutrix for recording her
statement under Section 164-A, Cr.P.C. He has admitted the suggestion of learned defence counsel that prosecutrix had come alone to the police
station, he had prepared site plan of the place of occurrence upon the identification of the prosecutrix, the bed on which the prosecutrix was raped
by the accused was also lying there, however, there were no semen stains or blood stains on the bed sheet, so he had not seized bed sheet. He has
further stated that he had arrested accused Dawood Khan on 24-8-2008 and accused Rajiv Kumar on 8-9-2008, he had got conducted
identification parade of accused Rajiv Kumar through Executive Magistrate Sh. Anil Mangotra. On 18-9-2008, he had requested District
Magistrate, Jammu for conducting identification parade of the said accused.
The prosecutrix name withheld is the only witness to the actual occurrence because at the time of occurrence, even during the night, no other
person was present in the building where she was residing in a rented room. She has given the complete eye account of what happened to her.
Learned counsel for the appellants first contended that on the sole testimony of the prosecutrix in absence of corroboration, learned trial court
should not have recorded the conviction.
True it is that corroboration is imperative but not in all facts and circumstances. Every case has to be judged on its own merits in the
background of its peculiar facts. The ''litmus test'' is that the sole testimony must be such which shall lend assurance, based on which conviction can
be recorded. In case court finds reasons not to accept the version of the prosecutrix on its face value then it has to look for corroboration. This
view is supported by paras 16 & 24 of the judgment rendered by the Hon''ble Apex Court in the case of Narinder Kumar v. State of (NCT) of
Delhi, AIR 2012 SC 2281. Same are advantageous to be quoted hereunder:
''16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such,
conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling
reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition of
judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or
insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of
having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter
being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search the
evidence, direct or substantial which may lend assurance to her testimony. (vide : Vimal Suresh Kamble v. Chaluverapinake Apal S. P. and
anr., 2003 (1) R.C.R. (Criminal) 39 : (AIR 2003 SC 818); and Vishnu v. State of Maharashtra, 2006 (1) R.C.R. (Criminal) 201) : (AIR
2006 SC 508.)''
Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be
proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the
prosecution provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face
value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be
improbable, the prosecutrix case becomes liable to be rejected.
The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the
prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the
accused committed rape on the victim on the occasion complained of.''
Emphasis added.
It shall also be advantageous to quote the following portion from para 7 of the judgment rendered by Hon''ble Apex Court in the case of
Tameezuddin alias Tammu v. State of (NCT) of Delhi, 2009 (15) SCC 566 : AIR 2009 SC (Supp) 2519)
''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................................''
The Hon''ble Apex Court in the case of Moti Lal v. State of M.P. (2008) 11 SCC 20 : (AIR 2008 SC (Supp) 882) has held that a woman or
a girl who is raped is not accomplice. Corroboration is not the sine qua non for conviction in a rape case.
The Hon''ble Apex Court in the judgment rendered in the case of Rajinder alias Raju v. State of H.P. (2009) 16 SCC 69 (AIR 2009 SC
3022), para 21 is relevant to be quoted:
''21. In the context of Indian culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody.
Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone
but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self-respecting woman
would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her
testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be
based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial
credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.''
Now the question which emerged for consideration is as to whether version of the prosecution is improbable and belies the logic and as to
whether giving predominant consideration to the version of the prosecutrix any violence be done to be very principles which govern the
appreciation of the evidence in a criminal matter.
The prosecutrix in her statement as referred to above has given the actual and accurate eye account as to what happened to her:
(I) She has made it clear that she had contracted marriage with a Hindu boy against the will of her parents, so was not on good terms with
them. She has also made it clear that her relations with the husband (police constable) were strained, that is why, she was residing in a
rented room at village ''Belicherana''. She has made it clear that she was in (8th) eighth month of her pregnancy which fact is supported by
the statement of PW, Naseem Choudhary, Gynaecologist by stating that the prosecutrix was in her last trimester of pregnancy.
(II) She was alone asleep in the rented accommodation. The position has been supported by the IO, PW Mohd. Ashraf Bhatti who has
stated that the house in which the prosecutrix was residing comprised of three rooms, the house belongs to Mohd. Rashid resident of
Poonch. Mohd. Rashid along with his family was residing in the said house, however, he had not enquired anything from the house owner
(landlord) as on the date of occurrence he was not in his house as he had gone to Poonch.
(III) The prosecutrix in her testimony has further made it clear that she had requested the accused that she being in her advance stage of
pregnancy, therefore, they should not commit such act, ignoring the request they did not spare her and committed rape upon her one by one.
(IV) She has made it clear that in the wee hours of the morning, she went to the police post Belicherana, wherefrom she was taken to the
Police Station, Satwari where the report was lodged, same is proved and exhibited Ext. P-1.
(V) In her statement both in examination-in-chief and cross-examination, there is not even a single word or whisper which would suggest
that she is or was having any type of enmity or acrimony with the accused. Statement of prosecutrix is free from exaggeration, improvements
and embellishments.
(VI) She is clear to state that at about 3.00 a.m. in the intervening night of 22/23rd-8-2008, she heard the noise of pushing wire mesh door
of her room and cried but the moment she could stand up, the two persons had come in. Accused No. 1 gagged her mouth with his hands,
she was crying, thereafter another accused gagged her mouth and made her to lie on her bed. Accused No. 1 (appellant No. 1) had forcibly
removed her clothes and committed rape on her, thereafter the accused No. 2 also committed rape upon her as against her consent. While
leaving from the place, they had threat ended her in case she discloses the said act to anyone, they will kill her.
(VII) The prosecutrix while lodging the report Ext. P-1 had made it clear that out of two accused, one was identified by her being resident
of Belicherana and known by the name of ''Kalu'', son of ''Muneera'' whereas regarding accused No. 2, she had said she can identify him.
The case, in essence, hinges on the sole testimony of the prosecutrix. After sifting and scanning the testimony of the prosecutrix for the purpose
of ascertaining as to whether predominant consideration can be given to the same so as to form base for conviction, answer has to be in
affirmative. There is no requirement of looking for corroboration.
On thoughtful consideration of the testimony of the prosecutrix, in the context of the law as referred to above, it shall be safe to hold that her
statement inspires confidence so has to be accepted even in absence of corroboration.
Learned counsel for the appellants tried to project that she had not shown any resistance nor her body or vital parts were injured, same pales
into insignificance in view of the clear statement of the prosecutrix supported by P.W. Gynaecologist, that prosecutrix was in advanced stage i.e.
was in 8th month of pregnancy. Quite understandable how could she resist except for requesting which she has, but was not spared. How could
there be a tear when she was a married lady and habitual to intercourse as has also been rightly said by PW-Naseem Choudhary.
Learned counsel for the defence next tried to contend that PW-Dr. Naseem Choudhary had stated that the prosecutrix might have undergone
intercourse within 72 hours. When she was examined by the doctor at 12.15 p.m. on 23-8-2008 i.e., within nine hours from the time of
occurrence, the argument is without any substance, within 72 hours would also include nine hours because no question has been put by the party
whether intercourse has taken place within nine hours. Doctor perhaps in her wisdom has kept it within 72 hours. That apart, PW-Dr. S.L. Forta,
Pathologist has also stated that two dried vaginal smear slides labelled MLC No. 731 from Dr. Naseem Choudhary Gynaecologist were received
and on microscopic examination both vaginal smear slides showed the presence of spermatozoa as he has made mention of in the report Ext. P5.
Such a submission in any manner will not give rise to any suspicion about the commission of offence that too in the background of the clear credible
statement of the prosecutrix. The testimony of the prosecutrix has not been impeached in any manner. Her statement is free from concoction. How
can that be ignored. Why should a lady being in her advanced stage of pregnancy (with eight months pregnancy) exposes herself, even, otherwise if
she would have been the consenting party, then what could be the reason for her to report the matter to the police. In that direction, nothing
adverse has come on the records, so theory of consent is totally excluded.
Learned counsel next contended that there has been delay in identification parade regarding accused No. 2 arrested on 8-9-2008 whereas the
identification parade has been held on 18-9-2009. This argument is also without any substance because the prosecutrix is clear and categorical in
her statement and has been also clear and categorical while lodging the First Information Report Ext. P1 that two persons entered into her room,
one '' Kalu'' son of '' Muneera'' (Dawood Khan, appellant No. 1) and second person whom she could identify as he too had committed rape upon
her. Then she has identified accused No. 2 in presence of a Magistrate, who thrice after changing clothes and the place in a long queue was
identified.
It is true that there should not have been delay in conducting the identification parade but delay in all cases is not fatal. It could be fatal in case
there would have been doubt about the identity of the accused No. 2. The victim (prosecutrix) in categorical terms has been aware and firm that
she would identify the 2nd accused.
While considering the statement of IO (Mohd. Ashraf Bhatti) as recorded by the learned Trial Court in Urdu language as is available on the
trial court records, wherein it is clearly stated by him that he arrested the accused Dawood Khan on 24-8-2008 and on the same date he
(Dawood Khan) had divulged the name of the accused Rajiv Kumar and thereafter he was arrested on 8-9-2008 from his house at Belicherana
which means that the accused No. 1 had divulged the name of the 2nd accused, it is only because of that he was arrested. In addition, thereto the
prosecutrix in categorical terms, confidently made it clear at the time she lodged the First Information Report Ext. P1 on 23-8-2008, that she can
identify the 2nd accused, therefore, on such count her testimony regarding identification of accused No. 1 is unblemished.
Learned counsel for the appellant next contended that it has come in the statement of the prosecutrix that she in the wee hours of the morning
of 23-8-2008 had called a ''Bihari'' lady namely ''Suman'' who accompanied her to police post Belicherana. The said lady ''Suman'' has not been
listed as witness. It is true that she has stated so but ''Suman'' was not the witness to the occurrence. In addition thereto, the lady from Bihar
namely ''Suman'' who had not seen the occurrence could be of no help to the prosecution or defence, that is why she has been ignored and has not
been listed as witness. The prosecutrix has not stated anywhere that she divulged occurrence to the said lady. Only she has said she called her,
stayed with her till morning, so she could not be a witness to anything.
Learned counsel for the appellants next contended that prosecutrix has stated that in the morning of 23-8-2008, she went to police post
Belicherana wherefrom she was taken to Police Station Satwari where she lodged report. It is not forthcoming as to why in Belicherana report has
not been recorded in the daily register as to why she has been taken to Police Station Satwari. Quite obvious seriousness and heinousness of
offence taken note of by the police post Belicherana must have persuaded them to take her to police station Satwari. May be in their wisdom they
may have though it proper to report it to the Police Station Satwari, therefore, on such count no benefit can be derived by the appellants.
Learned counsel for the appellants also contended that the potency test of the accused has not been conducted. That is not true. Records
reveal that during investigation regarding accused No. 1 (Dawood Khan), doctor on 26-8-2008, on examination has recorded that there is nothing
to suggest that the person cannot perform sexual intercourse. Likewise, regarding accused No. 2, on 11-9-2008, it has been recorded by the
doctor after examining him that there is nothing to suggest that he cannot perform a sexual act. The said doctors who certified about the fitness of
the appellants have been listed as witness Nos. 6 and 7 but during trial not produced, even though not produced, that will not have any negative
impact on the case because prosecutrix in clear terms has qualified that both the accused committed rape upon her one by one within a span of
fifteen minutes. Both the accused, as such, raped her, which fact, as stated by the prosecutrix, is not open to question. Therefore, minior
contradictions, which is a normal feature in such type of cases, are to be overlooked, that too when direct evidence of unimpeachable character
inspiring confidence is available.
Learned trial court has very lucidly noticed all features of the case and after proper appreciation of prosecution evidence, has drawn
conclusions consistent therewith.
We have bestowed our thoughtful consideration and noticed that the learned trial court has applied the law as referred to the judgment
appropriately and has appreciated the evidence in its right perspective.
For the stated reasons and facts and the position of the law coupled with the reasoning recorded by the learned trial court, we do not find any
illegality or perversity in the judgment and order impugned. Same, in our view, is uninterferable. Therefore, the impugned judgment, dated 25-5-
2015 recording conviction is upheld. The order impugned dated 26-5-2015 awarding sentence, in our view, required modification only to the
extent of the period of 14 years as awarded for commission of offence under Section 376, IPC being inconsistent with the imprisonment
prescribed. The sentence prescribed is rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and liable
to fine Though the ferocious act committed, that too with a lady in 8th month of pregnancy, is unpardonable but 10 years rigorous imprisonment
and fine as imposed shall be proportionate.
In the upshot the judgment dated 25-5-2015 recording conviction for commission of offence by the accused punishable under Sections 458
and 376 (2)(g), IPC is upheld. The sentence of rigrous imprisonment for period of seven years each under Section 458, IPC and fine of Rs.
20,000/- each and in default of fine to undergo simple imprisonment for a period of three months is maintained. Under Section 376 (2)(g), IPC,
both the accused are sentenced to 10 years of rigorous imprisonment each and fine of Rs. 50,000/- each in default of fine, both shall undergo
simple imprisonment for a period of six months each, both the sentences shall run concurrently. The period for which appellant have been in the
custody during investigation, trial and during pendency of this appeal shall be set off against the period of sentence awarded. The amount of fine i.e.
Rs. 1.4 lakhs in case realized from the convicts, as directed by the learned trial court, shall be paid to the prosecutrix as compensation. The appeal,
except to the modification vis-a-vis period of sentence to the extent indicated above, is destined to fail being devoid of merit as such is dismissed.
Copy of the judgment along with trial court record be sent back to the trial court.
Copy of the judgment be also furnished to the appellants.
Appeal dismissed.