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Allahabad High Court · body

2016 DIGILAW 326 (ALL)

PRADEEP v. STATE OF U. P.

2016-01-25

RANJANA PANDYA

body2016
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgment and order dated 28.2.2015 passed by Sri Vinod Singh Rawat, Additional Sessions Judge, Room No. IX, Ghaziabad, Fast Track Court No. 1 (Crime against women), in S.T. No. 69 of 2014 (State v. Pradeep), registered as Case Crime No. 1109 of 2013, under Sections 376 I.P.C. and Section 66(A) and 67 I.T. Act, Police Station Sihani Gate, District Ghaziabad, whereby the appellant was acquitted for the charges under Section 66 (E) I.T. Act but the accused appellant was found guilty under Section 376 and 506 I.P.C and had been sentenced for seven years rigorous imprisonment with Rs. 20,000/- as fine, under Section 376 I.P.C. and two years imprisonment and Rs. 5000/- as fine under Section 506 I.P.C. with default stipulation. 2. Filtering out unnecessary details, the prosecution version as unfolded during trial is that a report was lodged by the prosecutrix stating that she is resident of 226, Nasirpur, P.S. Sihani Gate, District Ghzaiabad. She was married on 22.5.2013 to one Jeetu resident of village Abdullahpur, Police Station Bhawanpur, Meerut but at the time of lodging of the First Information Report she was residing with her mother. She was being defamed for the last one year by the accused Pradeep. He had in his possession some obscene photographs of the victim and the accused. The accused prepared some obscene video clips of the informant on the basis of which he blackmailed the victim. He made physical relations with the victim by threatening her and showing her the video clips to the in-laws of the victim at Meerut due to which her husband has divorced her. He has also uploaded these photographs and video clips on the internet. The victim is finding it difficult to live in the society and any untoward incident may take place with her, hence, the written report has been lodged. 3. On the basis of this written report, a case was registered at Case Crime No. 1109 of 2013. The investigation was entrusted to PW-5 S.I. Subhash Chandra Gautam. He recorded the statement of the victim and sent the victim for medical examination. He arrested the accused, on the basis of information given by the informer and from his possession a mobile Nokia C-3 was recovered about which the accused confessed that it was having obscene videos of the victim. He recorded the statement of the victim and sent the victim for medical examination. He arrested the accused, on the basis of information given by the informer and from his possession a mobile Nokia C-3 was recovered about which the accused confessed that it was having obscene videos of the victim. The Sub Inspector tried to find independent witnesses but nobody was willing to become a witness, hence the mobile was sealed on the spot. Recovery memo was prepared, signatures of the accused and police personnel were obtained on the recovery memo which was proved as Exhibit Ka-9. The arrest memo was also prepared on the spot which was signed by the accused and proved by this witness as Exhibit Ka-10. The G.D. was prepared by the Constable Clerk which was proved by this witness as Exhibit Ka-11. During the course of statement of this witness, a sealed bundle was opened before the Court. The clothes were proved as material Exhibit -1, mobile as material Exhibit -2, battery as material Exhibit -3, SIM as material Exhibit -4 and memory card as material Exhibit Ka -5. After that, this witness was transferred, due to which, further investigation was done by S.I Mahaveer Singh PW-7. He perused the case diary and got the statement of the victim recorded under Section 164 Cr.P.C. on 19.10.2013. He copied this statement in the case diary and proved the application as Exhibit Ka-13. He further summoned the report whether the victim was a member of Scheduled Caste or Scheduled Tribes. He also summoned the evidence regarding the accused belonging to a Back Ward Class. The father of the accused had stated that he belonged to Scheduled Caste (Kori) and he concluded that no case under Scheduled Caste/Scheduled Tribes Act was made out. When he tried to trace the medical report, he found that lady Constable Minakshi had got the victim medically examined on 4.9.2013 and she has also received the original copy of the medical report who has stated that she had handed over the original medical report to the Clerk. The previous Investigating Officer was asked about the medical report who stated that he did not receive the medical report. He obtained the copy of the medical report and submitted the carbon copy in the Court and proved it as Exhibit Ka-14. The medical report of the victim was incorporated in the case diary. The previous Investigating Officer was asked about the medical report who stated that he did not receive the medical report. He obtained the copy of the medical report and submitted the carbon copy in the Court and proved it as Exhibit Ka-14. The medical report of the victim was incorporated in the case diary. On the basis of investigation, the offence under Section 66(A)/67 I.T. Act was also found to have been committed, hence the application was moved to get the investigation done by an officer of the rank of Inspector. This application was moved as Exhibit Ka-15. On 8.11.2013, a supplementary report of the victim was copied in the case diary. The I.D. of the victim was searched on the facebook which was located while the Mobile Nos. 9267313332 and 09837940669 were also mentioned in the site and it was mentioned that there was an offer of Rs. 2000/- per night. Both the aforesaid numbers were said to be of the agents who supplied the girls. Under this, the obscene and vulgar photographs of the victim and accused were loaded. Another I.D. were also traced on which obscene and vulgar videos of the victim were loaded at You Tube.Com. After that investigation was transferred to the S.O. Incharge Ashok Kumar Sisodia on 1.12.2013 on the orders of S.O. who got a print of the facebook account and got it certified in which there were obscene and vulgar photographs of the accused and victim. 4. PW-6 is Inspector Ashok Kumar Sisodia who also conducted part of the investigation. He perused the case diary prepared by the previous I.O’s obtained the C.D.R. of the victim and mentioned it in the case diary and submitted charge-sheet against the accused which was proved as Exhibit Ka-12. 5. The prosecution produced as many as seven witnessed. PW-1 is the victim who has proved the written report as Exhibit Ka-1, her statement under Section 164 Cr.P.C. as Exhibit Ka-2 and the certified copy of the loaded photographs as material Exhibits 1 to 7. PW-2 is Constable Rajnish Kumar who prepared the G.D. and proved it as Exhibit Ka-3. constable Vimlesh Kumar is PW-4. Dr. Anita Joshi. PW-5 has medically examined the victim who did not find any external or internal injury on the body of the victim and proved her report as Exhibit Ka-5 and the supplementary report the victim as Exhibits Ka-6 and Ka-7. constable Vimlesh Kumar is PW-4. Dr. Anita Joshi. PW-5 has medically examined the victim who did not find any external or internal injury on the body of the victim and proved her report as Exhibit Ka-5 and the supplementary report the victim as Exhibits Ka-6 and Ka-7. She further proved the pathology report as Exhibits Ka-6 and Ka-7 and the supplementary report as Exhibit Ka-8. Evidence of PW-5 is S.I. Subhash Chandr, PW-6 Inspector Ashok Kumar Sisodia and PW-7 S.I. Mahaveer Singh whose evidence have been discussed earlier. 6. After examining as many as seven witnesses, the prosecution evidence was closed. The statement of the accused was recorded under Section 313 Cr.P.C. in which he denied the occurrence and has stated that he was already married from before and had a baby girl which was in the knowledge of the victim. He denied the recovery. He further examined himself as DW-1. 7. Learned trial Court after hearing counsel for both the parties has acquitted the accused under Section 66(A) I.T. Act but has convicted the accused under Sections 376, 506 I.P.C. as mentioned in para one of this judgment. 8. Feeling aggrieved, the accused has come up in this appeal. 9. I have heard counsel for the parties at length and perused the original record of the trial Court. 10. Learned counsel for the appellant castigating the impugned judgment has argued that the trial Court was swayed away with the fact that the victim has stated that she was blackmailed for a year and has been raped during the same period. He has further submitted that the conviction could not be sustained in the eyes of law because the victim being the major lady was a consenting party. 11. Counsel for the appellant has placed reliance in Abbas Ahmad Choudhary v. State of Assam, 2010 Cr.L.J. 2060, in which it has been laid down that in a matter of rape, the statement of prosecutrix must be given primary consideration, but, at the same time, a 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 the prosecutrix would always tell the entire story truthfully. 12. Per contra, learned A.G.A. while supporting the impugned judgment of the trial Court has argued that it is crime against society. A lady has been shattered. 12. Per contra, learned A.G.A. while supporting the impugned judgment of the trial Court has argued that it is crime against society. A lady has been shattered. There was no reason for the victim to falsely implicate the accused, so there is no illegality, factual or legal in the findings recorded by trial Court and the appeal is liable to be dismissed. 13. Before we proceed to analyze the evidence on record to appreciate the argument advanced by the parties’ counsel, it would be in the fitness of things, if the law laid down by the Apex Court as regards the evidence of rape of victim is looked into. 14. In State of Punjab v. Gurmit Singh and others, 1996 AIR 1393, the Apex Court has held as under : “Before, parting with the case, there is one other aspect to which we would like to advert to. OF late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 15. The right to life includes the right to live with human dignity and all that goes alongwith it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expression oneself in diverse firms, freely moving about and mixing and commingling with fellow human beings. 16. I have no hesitation in saying that no person exposed to severe trauma is immune to suffering and the Signs of that suffering are referred to as symptoms. When these symptoms can be grouped as a pattern over time, they are referred to as a syndrome. Once the pattern becomes entrenched or unlikely to change, and affect a persons’ functioning in a permanent way it is referred to as a disorder and is regarded as a mental illness. This is a “Rape Trauma Syndrome”. 17. In the present case admittedly, the victim is a major lady. Generally, in cases of rape, the Court does not ponder to find corroboration if the statement of the 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 for judicial reliance is not 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 of the crime. 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 of 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 for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu v. State of Maharashtra, AIR 2006 SC 508 . 18. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare and others v. State of Maharashtra, (1999) 1 SCC 220 . 19. It has been contended on behalf of the appellant that there is inordinate delay in lodging the First Information Report, inasmuch as, according to the First Information Report, the accused was raping the victim for the last one year. She kept quiet for a year and permitted the accused to have sexual intercourse with her and she lodged the report after one year. As is also evident from the written report Exhibit Ka-1. 20. As regards the delay, the victim has stated in her First Information Report that since the accused showed her vulgar photographs and videos to her husband and brother-in-law due to which he was divorced and they were made viral on the internet and when she got fed up, she lodged the report. No reason came forth as to why although the victim did not have a father what prevented her from telling her mother about all the facts because it is considered that the mother is the best friend of her young daughter. 21. No reason came forth as to why although the victim did not have a father what prevented her from telling her mother about all the facts because it is considered that the mother is the best friend of her young daughter. 21. In the Statement under Section 164 Cr.P.C., the victim has corroborated the First Information Report but the statement of the victim under Section 164 Cr.P.C. is only a corroborative piece of evidence. 22. PW-1 victim (name withheld by me) has admitted that she was serving in the Tantra Boutique where Pradeep was also working. Pradeep took her to his house on the pretext to marry her and to enable her to meet his parents but instead of taking her to his house, he took her elsewhere and rape her. The first instance of rape was about a year prior to the lodging of the First Information Report. The veracity of a witness can very well be tested on the test of cross-examination in which this witness has stated that Pradeep proposed her for marriage “after leaving the job”. Although she had no liking for him, but in the opening line of her examination-in-chief, she has said that “at the time of incident the accused was also working with her”. Regarding the first incident, this witness has stated that she did not meet Pradeep’s parents. She has not gone with the Pradeep on her own will but had gone on the instigation of the accused as she knew him from before, hence she went with him. She has further admitted that on the first day, she went with the accused on her own will and did not inform her parents or family members. Pradeep took her on his bike but instead of taking her to his house, he took her in a room where papers were stuck on the wall. A chair was lying in the room. She did not remember, whether there was single or double bed in the room. The accused bolted the door of the room. She was offered cold drink by the accused and said that he was going to call his mother and started catching her hands. After that, the accused raped her on the bed and also raped her on the ground. The accused derobed her. She objected to it but the accused derobed her forcibly. She was offered cold drink by the accused and said that he was going to call his mother and started catching her hands. After that, the accused raped her on the bed and also raped her on the ground. The accused derobed her. She objected to it but the accused derobed her forcibly. He caught her hand in such a way that she did not sustain any injury on her hands. Pradeep, the accused derobed himself also. The accused gagged her mouth, hence she could not shout. The accused raped her for one hour. Before leaving the room both dressed themselves and came out. The accused took off the cloth from her mouth. She sat on the bike of the accused who dropped her at her Boutique. On that day, she left her job at 06:00 p.m. She went home straight where all her family members were present. The million dollar questions which arise at this stage is, what prevented this lady from telling this fact to her mother is a question which remained un-answered throughout the trial, inasmuch as, she was a major, working girl who could have freely understood that when her mouth was fully gagged and the accused was raping her definitely, it was not an act of love or affection. This means that on the first occasion itself the victim was a consenting party to the act and went on her own accord with the accused and did not tell anyone about the incident. At the time of occurrence, it is not the case of the victim that the accused has proposed to marry her because her testimony itself shows that the accused had proposed to marry her after he had left the job. 23. There is nothing on record to show that the accused had been pestering the prosecutrix for any alliance as has been laid down by in recent judgment by the Apex Court in Tilak Raj v. State of Himachal Pradesh, in Criminal Appeal No. 13 of 2016 decided on 6.1.2016. 24. The prosecutrix in her cross-examination has admitted that after the date of first incident also the accused was constantly in her touch and kept meeting her and both had continued physical relations. Pradeep took her to several places and had physical relations with her. 24. The prosecutrix in her cross-examination has admitted that after the date of first incident also the accused was constantly in her touch and kept meeting her and both had continued physical relations. Pradeep took her to several places and had physical relations with her. The physical relations continued for one year but since the accused did not repeat the proposal of marriage, hence she also did not say for marriage. Thus, as per the observations in the Tilakraj v. State of Himachal Pradesh (Supra), this cannot be termed to be a case of forceful sexual assault. The prosecutrix has stated that the accused went to her in-laws house, showed the videos and clippings to her husband and brother-in-law (Jeth) due to which she was divorced but there is nothing on record to substantiate this statement. The victim has also stated that the accused had uploaded her videos and obscene pictures on the internet but the offence under I.T. Act was not proved before the trial Court besides there is nothing on record to show by which mobile, these photographs were uploaded, who uploaded them from which device they were uploaded, thus, the allegations that the accused uploaded the obscene and vulgar videos and photographs of the prosecutrix do not stand proved by the prosecution. 25. PW-1, the victim has specifically stated that she knew about the video clippings and vulgar photos but since the accused had threatened to kill her and her brother, she did not tell about this to anybody. This is an absolutely false plea not palatable to the human conscience, especially when the girl is going to her home and her working place for a complete year. Although the victim has admitted that she herself lodged the First Information Report. The victim was intelligent enough, lodged the report on 3.9.2013 after her divorce which is said to have taken place on 25.7.2013. She has also stated that the accused forcibly used to talk to her on phone and the conversation between her and the accused was by force. I fail to understand, how one can talk forcibly on phone because if the victim would have decided not to converse with the accused on phone she could conveniently have disconnected the phone which she did not do. Hence, the victim was a consenting party to the act. I fail to understand, how one can talk forcibly on phone because if the victim would have decided not to converse with the accused on phone she could conveniently have disconnected the phone which she did not do. Hence, the victim was a consenting party to the act. The complete prosecution story has rested upon the evidence of the victim, whose testimony was accepted by the trial Court as worthy of credence but we cannot loose sight of the fact that the victim being a major lady was all along moving at various places with the accused even when she came to know that the accused had some vulgar and obscene sexual videos and photographs of her. Even then she did not confide in her mother or to the police. I am aware of the fact that a woman, howsoever dissolute, she may be, would not ordinarily consent to insulting, humiliating and repulsive act of sexual intercourse on her. 26. Law recognizes that a woman even of easy virtue or even a whore for that matter, has personal dignity and owner. The weakest part in the version given out by the prosecutrix was her subsequent conduct and also the circumstances that she lodged report of the alleged incident one year afterwards, only when she felt compelled to do so. She had on her own admission first concealed the alleged incident from everybody. There is a reason to think that the victim (name withheld by me) gave the false explanation that she was threatened that she and her brother would be killed. 27. Although, there is discrepancy about the name of the father of the accused but otherwise there is no dispute about the identity of the accused. Practically all the I.Os. in this case have added insult to injury by the manner in which they have conducted the investigation, inasmuch as PW-6 Ashok Kumar Sisodia has admitted that the room in which the obscene photographs were clicked was not visited by him. He did not bother to contact the family members or in-laws of the victim. He admitted that during the course of investigation, he neither visited the house of the victim nor the accused nor recorded any statement. He has also admitted that he did not bother to investigate on the point as to from which cybercafe. He did not bother to contact the family members or in-laws of the victim. He admitted that during the course of investigation, he neither visited the house of the victim nor the accused nor recorded any statement. He has also admitted that he did not bother to investigate on the point as to from which cybercafe. The obscene videos were uploaded, although when any video has to be loaded on the internet a URL number has to be generated by which its link can be identified. This I.O. did not bother to find out, whose numbers were given on the facebook account and he also did not bother to know about the mobile number of the accused. He further did not think that it was his duty to find out about the SIM and memory card recovered from the accused because it was recovered by the previous I.O. The conduct of PW-7 S.I. Mahaveer Singh is no better, inasmuch as he has admitted that he did not seek the police custody remand of the accused. He has admitted that when he saw the video of the victim, her mouth was not gagged and the victim was not beaten. He did not also find out as to by which computer, this video was uploaded on the You Tube. He did not also tried to find out about the telephone nor tried to download the video from the You Tube. Thus, the investigation as conducted by all the three Investigating Officers, is speaking volumes for itself. Although faulty investigation in this particular case would not make any difference because the victim herself has miserably failed to prove her case. 28. DW-1, the accused whose ill intention is evident from his statement who had admitted that he knew the victim. He has stated that he recorded the conversation of the victim which proved that the victim has lodged an incorrect complaint. No doubt it has no relevancy with the case but this definitely reflects about in the conduct of the accused who brought his statement in writing from the jail to the Court and tried to read that, when he was deposing before the Court, as is evident from his statement. This shows that the accused has acted malafidely enough and has not even hesitant to cheat the Court. This shows that the accused has acted malafidely enough and has not even hesitant to cheat the Court. When material Exhibit-4 was referred to this witness he replied as under : xokg dk oLrq izn'kZ&4 es QksVw dk fn[kk;k x;k rks xokg us dgk eS bls tkurk gWwA ;g ogh gS ftlus esjs f[kykQ vnkyr es xokgh nh gSA** xokg dks oLrq izn'kksZ dh UkXuk voLFkk es mldh QksVw fn[kk;h x;h rks mlus dgk fd ;g esjk QksVw lkQ fn[kk;h ugh ns jgk gSA 29. The answers given by this witness in his cross-examination make it clear that the accused has missed no occasion to speak lies, thus, the accused who has preferred to appear as a witness before the Court can be termed to be a total “liar” who did not hesitate to even cheat the Court by reading his statement in Court. 30. Be that as it may in the present case, since the prosecution has miserably failed to prove the case and no doubt conviction can be based on the sole testimony of the prosecutrix too, but the evidence of the prosecutrix in this case, when read as a whole, is full of discrepancies and does not inspire confidence. The gap in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that the victim was raped. Infact according to the evidence on record she was a consenting party. 31. Hence on the basis of what has been discussed above and on the basis of record before this Court, I come to the irresistible conclusion that the prosecution has miserably failed to prove its case beyond reasonable doubts and the appeal is liable to be allowed. 32. Accordingly the appeal is allowed. 33. The impugned judgment of conviction and sentence dated dated 28.2.2015 passed by Sri Vinod Singh Rawat, Additional Sessions Judge, Room No. IX, Ghaziabad, Fast Track Court No. 1 (Crime against women), in S.T. No. 69 of 2014 (State v. Pradeep), registered as Case Crime No. 1109 of 2013, under Sections 376 and 506 I.P.C., Police Station Sihani Gate, District Ghaziabad is hereby set aside. 34. The appellant Pradeep is on bail. His bail bond are cancelled and the sureties are discharged. However, the appellant Pradeep is directed to comply with the provision of Section 437-A Cr.P.C. 35. 34. The appellant Pradeep is on bail. His bail bond are cancelled and the sureties are discharged. However, the appellant Pradeep is directed to comply with the provision of Section 437-A Cr.P.C. 35. Let the copy of this judgment be sent to the trial Court concerned for compliance.