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2014 DIGILAW 2649 (ALL)

Rajendra v. State of U. P.

2014-08-28

SURENDRA VIKRAM SINGH RATHORE

body2014
JUDGMENT Surendra Vikram Singh Rathore, J. 1. Both these appeals [Criminal Appeal No. 09 of 2011-Rajendra Vs. State of U.P. and Criminal Appeal No. 123 of 2011-Saheed Vs. State of U.P.] arise out of same judgment, therefore, the same are being disposed of by a common order. 2. Under challenge in the instant criminal appeals is the judgment and order dated 24.12.2010 passed by learned Additional Sessions Judge/Fast Track Court No. 28, District Barabanki, in Sessions Trial No. 95 of 2005, relating to Case Crime No. 252 of 2004, Police Station Fatehpur, District Barabanki whereby the appellants-Rajendra and Saheed were convicted and following sentences were imposed on them: (a) Under Section 363 IPC-5 Years' rigorous imprisonment with fine of Rs. 1000/- with default stipulation of one year's additional imprisonment each. (b) Under Section 366 IPC-5 years' rigorous imprisonment and also with fine of Rs. 1000/- with default stipulation of one year's additional imprisonment each. (c) Appellant Saheed was also convicted for the offence under Section 376 IPC and was sentenced with 7 years' rigorous imprisonment with fine of Rs. 2,000/- with default stipulation of two years' additional imprisonment. All the sentences were directed to run concurrently. In the instant case one accused Hasnu was also tried alongwith the present two appellants. It has been informed that accused Hasnu has not preferred any appeal against his conviction and he has been released from jail after serving out his entire sentence. 3. Brief facts necessary for the disposal of instant appeals are that the occurrence of this case is alleged to have taken place on 02.12.2004 at about 9.00 p.m. while the FIR of this case was lodged by the complainant on 06.12.2004 wherein he has stated that his minor daughter aged about 12 years (hereinafter referred as victim) has been enticed away by the appellants Saheed, Rajendra and Hasnu. This incident is alleged to have taken place in the night at about 9.00 p.m. when the victim had gone to attend the call of nature. When she did not come back then the complainant started the search of her daughter. He went to several relations and the expected places where the victim could have been found but he failed in his efforts. When she did not come back then the complainant started the search of her daughter. He went to several relations and the expected places where the victim could have been found but he failed in his efforts. It was also mentioned in the FIR that one Kamlesh and Rameshwar had seen the victim going alongwith accused persons on the said date and thereafter, the FIR of this case was lodged. During investigation, the victim is alleged to have been recovered on 07.12.2004 at 7.30 p.m. from a place which was very close to the railway station, Fatehpur. The recovery memo is alleged to have been prepared which was proved as Exhibit Ka-2. All the three accused persons were arrested at the time of recovery of the victim and after completing the investigation charge-sheet was filed. 4. The case of the defence of the accused Rajendra and Saheed was that they have been falsely implicated on the behest of Dr. Rahi and Thakur Rajendra Singh. In support of his contention they have examined DW-1 Babu Ram. 5. In order to prove its case, the prosecution has examined PW-1, the complainant, Shyam Lal, PW-2 the victim, PW-3 Constable Sharda Bux Singh, who has prepared the chik report and GD of this case, PW-4 is S.I. Shri Kant Pathak who has prepared recovery memo and initiated the investigation. Since the case was under the SC/ST Act, therefore, the investigation was handed over to PW-5 Sri Nand Lal Singh, C.O. who has completed the investigation and filed charge-sheet, PW-6 Dr. Anjali Srivastava who has medically examined the victim, PW-7 Rameshwar and PW-8 Kamlesh who are eye witnesses mentioned in the FIR but both these witnesses have not supported the prosecution story. 6. After appreciating the evidence on record, the trial court convicted the appellant as above. Hence, the instant appeal. 7. Learned counsel for the appellant, learned Additional Government Advocate were heard in detail. 8. Submission of the learned counsel for the appellants is that the evidence of the prosecutrix was so contradictory that the same cannot be categorized as wholly reliable. After appreciating the evidence on record, the trial court convicted the appellant as above. Hence, the instant appeal. 7. Learned counsel for the appellant, learned Additional Government Advocate were heard in detail. 8. Submission of the learned counsel for the appellants is that the evidence of the prosecutrix was so contradictory that the same cannot be categorized as wholly reliable. Apart from the evidence of the victim, there was no other evidence to connect the appellants with the instant offence, the manner of her taking away and the manner in which the prosecution claims to have recovered the victim, have not been supported by the victim and she has given evidence which is entirely contradictory to the initial prosecution version. It has further been submitted that the victim was major and the trial court has not considered this aspect in correct perspective and has also not considered the material contradictions which occurred in the prosecution evidence in a correct perspective which renders its judgment unsustainable under law. 9. Learned Additional Government Advocate has submitted that all the points which have been raised before this court, were also raised before the trial court and the same have been considered in a correct perspective by the trial court and by a detailed and reasoned judgment the same have been found to be of no substance. So no interference is called for in the impugned judgment. 10. PW-1 the complainant Shyam Lal is not a witness of any fact he has stated that the victim had gone at about 9.00 p.m. to attend the call for nature and when she did not come back for a period of about 15 minutes then he went for her search. He continued his search on the following days also. During search Kamlesh and Rameshwar told him that they had seen the victim going with the appellants alongwith Hasnu but as stated earlier, Rameshwar and Kamlesh have not supported this part of the prosecution version. PW-1 on the point of recovery has stated that the victim was recovered after 3-4 days of the incident. From the place where the accused persons were arrested, an information was sent to him and the person had come on a motorcycle then he went to Suratganj where he met with her daughter. He has stated that he had gone to Suratganj in the night. From the place where the accused persons were arrested, an information was sent to him and the person had come on a motorcycle then he went to Suratganj where he met with her daughter. He has stated that he had gone to Suratganj in the night. He has also stated that at the time of incident apart from him and her daughter none other was present in the house. He has further stated that the victim served his dinner before him and thereafter at 9.00 p.m. she went to attend the call of nature. This witness has also furnished the details in his cross-examination as to the place where he made search of the victim. However, he has stated that he has never asked his daughter as to how she was taken away by the accused persons and this fact was never disclosed by the victim to him. He has stated that the person who had come to call him after the recovery of the victim had come to him in the evening and by the time he reached Suratganj it was dark. 11. In the instant appeal the only evidence available against the appellants is of the victim. Law is settled on the point that in case, the evidence of the prosecutrix is found to be wholly reliable then there is no illegality in recording conviction on the sole testimony of the prosecutrix and there would be no need to seek for corroboration. But the condition precedent is that her evidence must be wholly reliable. Hon'ble Apex Court in the case of State of Rajasthan Vs. Babu Meena reported in : (2013) 4 SCC 206 has considered this aspect and has observed in para 9 as under: - "We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and, (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused." Hon'ble the Apex Court in a recent judgment in the case of Hem Raj S/o. Moti Ram Vs. State of Haryana reported in JT 2014(2) SC 399 has observed in paragraph no. 6 as under: - "In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. [State of Maharashtra v. Chandraprakash Kewalchand Jain : [JT 1990(1) SC 61 : 1990(1) SCC 550 ]]. Such weight is given to the prosecutrix's evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it." 12. In another case of Mohd. Iqbal Vs. State of Jharkhand reported in JT : 2013 2010 SC 53, Hon'ble Apex Court has expressed the similar view. 13. The case of the prosecution from the very beginning was that the victim was allured by the accused persons and on their allurement she accompanied them. There was absolutely no allegation that the victim was compelled or she was taken away by them forcefully. PW-2 the victim has also stated in her examination-in-chief that the accused persons have stated that she shall be provided a lot of jewellery. She has also stated that all the three accused persons had told her that she shall be loaded with jewellery and Hasnu and Saheed have stated that they will marry with her. PW-2 the victim has also stated in her examination-in-chief that the accused persons have stated that she shall be provided a lot of jewellery. She has also stated that all the three accused persons had told her that she shall be loaded with jewellery and Hasnu and Saheed have stated that they will marry with her. Thereafter, all the three took her to Meer Nagar where the sister of accused Hasnu resides. Hasnu and Saheed stayed in the house and appellant Rajendra came back from there. The rape is alleged to have been committed by the appellant Saheed only in the said house of Hasnu's sister. She has also stated in her examination-in-chief that she was recovered by the police at the railway station and at that time all the three accused persons were present there. But in her cross-examination the victim has stated that on the date of incident she had taken her dinner at about 5.00 p.m. and her father had also taken dinner at the same time. After about 2 hours of taking the dinner, she went to attend the call of nature. So it means that she went to attend the call of nature around 7.00 p.m. while the case of the prosecution was that she went to attend the call of nature at about 9.00 p.m. She has stated in her cross-examination that while she was coming back after attending the call of nature and she came on the road then all the accused persons came from behind and closed her mouth with a cloth and when they made effort to pick her up then she laid down on the ground but she was not beaten by the accused persons. But she was threatened that in case she cried then she shall be shot dead. The appellant Saheed had shown a pistol to her and she was asked to sit on the cycle which was being driven by Saheed. Cycle was having a carrier and Hasnu was sitting on the front side of the cycle and she was sitting on the carrier and Rajendra was running behind the cycle. She has stated that while driving the cycle the accused persons had put the country made pistol on her because of which she could not cry. Cycle was having a carrier and Hasnu was sitting on the front side of the cycle and she was sitting on the carrier and Rajendra was running behind the cycle. She has stated that while driving the cycle the accused persons had put the country made pistol on her because of which she could not cry. It is an admitted case of the prosecution that the victim was seen by Kamlesh and Rameshwar and it is unbelievable that a person while pulling on a cycle with three persons riding the same can put the country made pistol on the person who is sitting on carrier. So this statement of the victim is entirely different from her statement given by her in her examination-in-chief and if falsifies the story of allurement. This statement clearly shows that she was forcibly taken by them. She has stated that she remained in the house of Hasnu's sister and she met with the wife and mother of Hasnu but she never asked them for help nor told them that she has been brought to their house against her will nor she made any request to the family members, present in the house, to send her back. She has further stated that by the time she reached the police station, her father had not lodged the FIR and the case was registered after three days thereof. She has further stated that she was recovered in Suratganj and at Suratganj police outpost there were three police personnel and no lady constable was there. She has stated that when she reached the police station then her father was present there and Rajendra was detained in Hawalat. She has stated that from the house of Hasnu's sister she again went on cycle which was being pulled by Hasnu and she was sitting on the front part of the cycle and the cycle was not having any carrier. No other person was on the said cycle. When she went with Hasnu on cycle at that time, she was not taken on gun point and no person was running behind her. She has admitted that while she was going on cycle, she made no effort to cry nor made any effort to get down from the cycle. She has stated that while Hasnu was pulling cycle he was holding her tightly with his both hands and also closed her mouth. She has admitted that while she was going on cycle, she made no effort to cry nor made any effort to get down from the cycle. She has stated that while Hasnu was pulling cycle he was holding her tightly with his both hands and also closed her mouth. This statement of the victim is unbelievable because any person while pulling cycle cannot use both of his hands to hold the person who is sitting on the front side of the cycle and can also close her mouth and also maintain his balance to pull the cycle. The defence has come with a specific defence that the recovery as alleged by the prosecution was absolutely false and the manner in which this incident is alleged to have taken place was also false. Victim has stated that the cycle stopped in Bhitwara and she again went in the house of Hasnu, mother of Hasnu and his wife met there and she stayed for one and half hours. She reached Bhitwara at about 9.00 p.m. while the initial case of the prosecution was that she went to attend the call of nature at about 9.00 p.m. So the time of occurrence as alleged by the prosecution is not supported by the evidence of the victim. She has stated that even in Bhitwara she made no effort to ask any person to send her back. She has given statement which does not even support her own earlier statement. She has stated that when at 10.00 a.m. in the morning she went with Hasnu then she reached on the same day at about 9.00 p.m. at Bhitwara. It appears that she left her house in the morning at about 10.00 a.m. and reached Bhitwara at 9.00 p.m. She further states that at about 11.00 p.m. she reached Meernagar and she met sister of Hasnu there, Cycle was being pulled by Hasnu and she was sitting on carrier and Saheed was sitting on the front rod of the cycle. Katta was not used by the accused persons at that time and Rajendra was not present there and she was not crying. She stayed there whole night. 14. Next day in the morning they started from Meernagar to Suratganj and reached Suratganj at about 4.00 p.m. cycle was pulled by Hasnu and she was sitting on carrier. Katta was not used by the accused persons at that time and Rajendra was not present there and she was not crying. She stayed there whole night. 14. Next day in the morning they started from Meernagar to Suratganj and reached Suratganj at about 4.00 p.m. cycle was pulled by Hasnu and she was sitting on carrier. Saheed was sitting on the front side and Rajendra was not present at that time. While she was going on cycle several persons met on the road which was a busy road but she made no effort for her rescue. In Suratnagar she was taken to the house of the younger sister of Hasnu, where the husband of Hasnu's sister met her. She asked him to send her back to her house. He had assured her that he will send the victim to her house and he was the person who brought her to the police station. All the four persons were sent to the police station by Hasnu's brother-in-law. When she reached the police station at that time, Dr. Rahi and his father were also present there. So this evidence of the witness clearly shows that a false recovery of the victim has been shown by the prosecution from a place near the railway station Fatehpur, was not made and false recovery has been shown. On this point, arresting officer PW-4 Shrikant Pathak, has stated that at the time of the arrest there was lot of crowd but none agreed to become a witness. This witness has also stated in his cross-examination that the recovery was made on 07.12.2004 in the noon while as per the recovery memo the recovery was made as 7.30 however, it was not mentioned in the memo whether it was 7.30 a.m. or p.m. but definitely it was not noon. PW-1 also says that he got the information of the recovery in the evening. So the fact of recovery becomes extremely doubtful. The incident as alleged by the prosecution that she was allured by the accused persons and on their allurement she left her house also does not find support from the statement of the victim given in her cross-examination which shows that the victim herself was not certain as to what happened with her and it appears that she has stated what has been told to her to say in the court. The conduct of the victim that she met with several persons while she was going on cycle but she never raised any voice or made any effort to run away from there also shows that she was freely moving with the accused persons out of her own free will. The appellant Rajendra has come with a definite defence that he used to grow Singhara in his pond. The complainant had stolen Singhara from his pond due to which some altercation had taken place between Rajendra and Shyam Lal prior to this incident and because of this enmity he has been falsely implicated. 15. DW-1 Babu Ram has been examined on this point. As CW-1 Ram Chandra Verma, Principal of the school has been examined who has stated that the victim has studied in his school and her date of birth was 11.02.1992. He has filed the school leaving certificate and the marksheet of the victim. According to this, date of birth of the victim her age was more than 12 years at the time of incident and her radiological age was reported to be about 16 years. In the medical examination report no fresh injury was found and hymen was old torn and no definite opinion about rape was given. The evidence of the victim is full of contradictions. So her evidence does not inspire confidence. Submission of the learned counsel for the appellant would be that they become entitled for benefit of doubt. 16. Hon'ble Apex Court in the case of Ramesh Harijan Vs. State of Uttar Pradesh reported in (2012) 5 SCC 777 in which the Apex Court has held in para 31 as under: - "31. Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense." 17. Hon'ble Apex Court in the case of Nagesh Vs. State of Karnataka reported in (2012) 6 SCC 477 in which the Apex Court has held in para 27 which is as under: - "27. This Court in Sucha Singh Vs. State of Punjab has stated that (SCC pp. 653-54 para 20) "20. Hon'ble Apex Court in the case of Nagesh Vs. State of Karnataka reported in (2012) 6 SCC 477 in which the Apex Court has held in para 27 which is as under: - "27. This Court in Sucha Singh Vs. State of Punjab has stated that (SCC pp. 653-54 para 20) "20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh Vs. Satpal Singh). The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. Vs. Ashok Kumar Srivastava). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh Vs. State (Delhi Admn.] Vague hunches cannot take place of judicial evaluation. A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. [Per viscount Simon in Stirland Vs. Director of Public Prosecutions quoted in State of U.P. Vs. Anil Singh. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth." 18. Hon'ble Apex Court in the case of Raj Kumar Singh alias Raju alias Batya Vs. State of Rajasthan reported in : (2013) 5 SCC 722 in which the Apex Court has held in paras 43, 44 and 45 as under: - "In the instant case, there have been major contradictions/improvements/embellishments in the deposition of witnesses which cannot be ignored when they are examined in the correct perspective. State of Rajasthan reported in : (2013) 5 SCC 722 in which the Apex Court has held in paras 43, 44 and 45 as under: - "In the instant case, there have been major contradictions/improvements/embellishments in the deposition of witnesses which cannot be ignored when they are examined in the correct perspective. The chain of links connecting the appellant with the crime appears inconclusive. It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labeled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinize the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused. (Vide: Bihari Nath Goswami v. Shiv Kumar Singh & Ors., : (2004) 9 SCC 186 ; Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191 ; and Sampath Kumar v. Inspector of Police, Krishnagiri, : AIR 2012 SC 1249 ). In Kehar Singh & Ors. v. State (Delhi Admn.), : AIR 1988 SC 1883 , this Court has held that if the discrepancies are material it would be safer to err in acquitting than in convicting the accused. 39. In Subhash v. State of Haryana, : AIR 2011 SC 349 , this Court has held that a significant omission in the statement of a witness recorded under Section 161 Cr.P.C. may amount to a major contradiction. However, it may depend upon the facts of case and in case of a material contradiction the accused becomes entitled for benefit of doubt and thus acquittal." 19. Keeping in view the contradictory statement of the victim recording every stage of the case of the prosecution regarding her elopement and also regarding her recovery are so contradictory that goes to the root of the case. Apart from it, there is one other aspect that in her cross-examination she has stated that she told the Investigating Officer that she went to the Meernagar in the house of Hasnu's sister and she has also told the Circle Officer that father-in-law of Hasnu's sister had handed over to her to the police alongwith the accused. In this case, salwar and kurta of the victim were taken by the police in custody. Admittedly, the same were not sent for chemical examination, therefore, mere recovery is of no consequence. Keeping in view the contradictory statements given by the victim at different stages this Court is of the considered view that the prosecution has not come forward with clean hands and the incident has taken place in different manner and the true facts have not been brought before the court. The evidence of the victim does not fall within the category of wholly reliable. The evidence of the victim does not fall within the category of wholly reliable. Her evidence suffers from many improbabilities. The finding of the trial court to the contrary, becomes unsustainable under law. Therefore, the appellants are entitled to doubt of benefit. 20. In view of the above, these appeals deserve to be allowed and are hereby allowed and the impugned order dated 24.12.2010 is hereby set aside. Appellants are acquitted of the charges levelled against them. They be set at liberty. They are on bail. Their bail are cancelled and sureties are discharged. 21. Office is directed to communicate this order to the court concerned forthwith for compliance and also to send back the lower court record.