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2016 DIGILAW 566 (ALL)

KISHORE v. STATE OF U. P.

2016-02-18

RANJANA PANDYA

body2016
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgment and order dated 15.12.2014, passed by Additional Sessions Judge, Court No. 2, J.P. Nagar, in Sessions Trial No. 519 of 2011 (State v. Kishore), arising out of Case Crime No. 128 of 2011, under Sections 376, 506 I.P.C., Police Station Bachraiyoon, District J.P. Nagar, whereby the accused appellant was convicted and sentenced to ten years rigorous imprisonment with a fine of Rs. 5000/- under Section 376 I.P.C. and two years rigorous imprisonment with a fine of Rs. 1000/- under Section 506 I.P.C. with default stipulation. 2. Filtering out unnecessary details, brief facts are that an application under Section 156(3) Cr.P.C. was moved by the informant on 29.1.2011 stating that she is resident of village Dhakowali, Police Station Bachraiyoon, J.P. Nagar. On 21.1.2011 in the evening, the informant was loading the sugarcane on the trolley with the aid of her husband and her son. After that her husband proceeded to the Chhadha Sugarcane Mill with the trolley and the informant was returning home to finish the house hold job. Her son Gajendra followed the trolley for quite some distance. When the informant was returning home at about 06:00 p.m. as soon as, she reached near the jungle of Forest Department, the accused Kishore caught her with bad intention and on the point of country made pistol, forcibly raped her and shattered her reputation. She raised hue and cry at which her son Gazendra Singh who was returning from the Paltoon Bridge, saved her from the appellant. The appellant was apprehended on the spot but he pushed the son of the victim and fled away. The son of the victim brought her mother back to his house with a lot of difficulties. The son of the informant also saw the appellant raping the victim. The victim told the incident to her husband and on the next day, she went with her husband to the Police Station Bachraiyoon and submitted a written report against the accused but no action was taken in the matter. At this the informant personally presented an application to the S.P., District J.P. Nagar on 27.1.2011 and also sent a copy thereof by registered post. But no action was taken in the matter. Hence, she moved an application under Section 156(3) Cr.P.C. before the Court on 29.1.2011. 3. At this the informant personally presented an application to the S.P., District J.P. Nagar on 27.1.2011 and also sent a copy thereof by registered post. But no action was taken in the matter. Hence, she moved an application under Section 156(3) Cr.P.C. before the Court on 29.1.2011. 3. On the basis of this application a case was registered against the accused, investigation of which was entrusted to PW-3 S.I. Virendra Kumar on 11.3.2011 and on the same day, he copied the chick report and G.D. in the case diary. He recorded the statement of the Constable who scribed the chick, inspected the spot on the pointing out of the victim and proved the site plan as Exhibit Ka-2. On 15.3.2011, the affidavit of the informant and the witnesses were received by him which were copied in the case diary. The statements of the witnesses were recorded in the case diary. On 17.3.2011, the medical report of the victim was copied in the case diary. On 31.3.2011, the accused surrendered before the Court, the rob kar regarding his attendance dated 1.4.2011 was received which was copied in the case diary. On 8.4.2011, the supplementary report of the victim was received which was copied in the case diary. On 12.4.2011, the statement of the accused was recorded and the investigation ended into a charge-sheet which was proved by this witness as Exhibit Ka-3. The chick report was proved by this witness as Exhibit Ka-4 and the copy of G.D. was proved by this witness as Exhibit Ka-5. The victim was medically examined by PW-4 Dr. Sujata Gautam on 15.3.2011 at 12:10 p.m. The doctor did not find any external or internal injuries on the body of the victim. The doctor has prepared two slides of vaginal smear and sent it for examination. The doctor proved the medical report as Exhibit Ka-6 and the supplementary report as Exhibit Ka-7. 4. The prosecution examined as many as four witnesses. PW-1 is the victim and also the informant of this case who has proved the application under Section 156(3) Cr.P.C. as Exhibit Ka-1. PW-2 is Gajendra Singh who is said to be the son of the victim. The remaining witnesses have already been discussed earlier. 5. 4. The prosecution examined as many as four witnesses. PW-1 is the victim and also the informant of this case who has proved the application under Section 156(3) Cr.P.C. as Exhibit Ka-1. PW-2 is Gajendra Singh who is said to be the son of the victim. The remaining witnesses have already been discussed earlier. 5. After closure of the prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C., in which he has denied the occurrence and has stated that his money was due, hence he was falsely implicated. However, he has not adduced any defence witness. 6. Learned lower Court after hearing counsel for both the parties returned the find of guilt against the appellant which has been specified in para one of the judgment. 7. Feeling aggrieved, the appellant has come up in this appeal. 8. I have heard Sri Ramesh Chandra Lal, counsel for the appellant, learned A.G.A. and perused the original record. 9. At the outset, it has been submitted on behalf of the appellant that the prosecution case is filled with many lacunas. The whole prosecution story is concocted, unreliable and unworthy of credit, thus the learned lower Court has erred in basing its conviction on illegal and inadmissible evidence. 10. Per contra, learned A.G.A. while supporting the impugned judgment has submitted that the evidence of the prosecutrix is trustworthy and reliable. The findings of the learned lower Court are based on legally admissible evidence which do not deserves any interference. 11. Counsel for the appellant has submitted that as per the chick report, the occurrence is said to have taken place on 21.1.2011 at 06:00 p.m., whereas the report of the occurrence has been lodged as per chick report Exhibit Ka-4 on 11.3.2011 at 10:15 a.m. The distance of the police station from the place of occurrence being 12 Kms. There is inordinate delay in lodging the first information report. Counsel for the appellant has submitted that for purposes of delay, the chick report cannot be relied on, inasmuch as, the date of registration of the report mentioned in the chick report as 11.3.2011 cannot be taken to be the date of lodging of the first information report, inasmuch as, the date of presentation of the first information report should not be less than the date on which the application under Section 156(3) Cr.P.C. was presented i.e. 29.1.2011. 12. 12. Coming to the factum of delay which has been mentioned in the application filed under Section 156(3) Cr.P.C. Exhibit Ka-1 itself, that on the date of incident when her husband returned home, she narrated the incident to her husband. On the next day i.e. 22.1.2011, she accompanied by her husband went to the police station to lodge the report. She also submitted a written report but no action was taken. She then sent a written report to the S.P. by registered post and one copy was handed over personally to him. As far as the evidence of the victim PW-1 is concerned, she has stated that on the next day of the occurrence, she and her husband went to the police station to lodge the report but the police did not lodge her report, hence she went to the S.P., J.P. Nagar, but nothing was done there also. After that she filed an application in the Court. 13. In the cross-examination, this witness has stated that she and her husband went to the police station and they reached there at 8 O’clock. The incident was narrated at the police station orally and the written Tehrir was also given at the police station. The averments of the victim in this regard, are not reliable and do not find favour with the Court, because it is trite law that delay in lodging the first information report castes a shadow of doubt on the prosecution case. Just an averment by the prosecutrix that she went to the police station and submitted a written report there and nothing was done in the matter could not suffice. The Apex Court while laying down the law of the land in Jai Prakash Singh v. State of Bihar and another, 2012 (77) ACC 245, as follows : “The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant’s version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.” 14. In the present case, the complainant has tried to explain the delay by stating that the matter was reported to the police but the police did not take any action. Such statement can hardly be taken to have explained the delay. It is the simplest of things to contend that the police, though report had been lodged with it, had not taken any steps. But it has to be established by calling for the necessary records from the police to substantiate that in fact a report with the police had been lodged and that the police failed to take up the case. Thus, delay in filing a complaint because of police in action has to be explained by calling for the records from the police which was explained by the Apex Court in Khedu Mohton and other v. State of Bihar, AIR 1971 SC 66 . 15. When information is given at the police station, normally two courses are open. A station diary entry can be made or the FIR registered. In case there is any deviation, recourse to Section 154(3) has to be made. If that does not yield any result a complaint can be filed. 16. If at all the victim had actually gone to the police station alongwith her husband on 22.1.2011, she could have easily got the G.D. summoned from the police station. Besides, she could also have filed copy of the application submitted by her to the S.P. which is said to have been submitted by her on 27.1.2011. 16. If at all the victim had actually gone to the police station alongwith her husband on 22.1.2011, she could have easily got the G.D. summoned from the police station. Besides, she could also have filed copy of the application submitted by her to the S.P. which is said to have been submitted by her on 27.1.2011. It is not a case that the informant victim being a helpless lady did not know what to do and how to tackle the situation, inasmuch as, on a complaint, perusal of the application under Section 156(3) Cr.P.C. it reveals that it has been been addressed to the Third Additional Civil Judge (Junior Division)/J.M., J.P. Nagar and names of both the parties have been mentioned besides the name of the witnesses including the formal witnesses i.e. Clerk Post Office, Raipur Khurd district J.P. Nagar and Clerk, S.P., J.P. Nagar have also been mentioned. Even in cross-examination, PW-1 the victim being the informant had admitted that she had engaged an Advocate. Perusal of the application under Section 156(3) Cr.P.C. is speaking volumes for itself, inasmuch as, it bears all the legal requirements of law. Thus, I conclude that there is inordinate delay in lodging the first information report, thus, the benefit has to be given to the accused and the delay in lodging the first information report increases the chances of false implication and embellishment in the first information report. 17. As far as the occurrence is concerned, it is trite law that if the version of the prosecutrix is reliable, it would suffice to convict an accused for rape. In Raju and others v. State of Madhya Pradesh, AIR 2009 SC 858 , the Hon’ble Apex Court has held that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The Hon’ble Apex Court has further laid down as under : “It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 18. Coming to the evidence of the prosecution, the victim PW-1 is a married lady who has stated her age to be 42 years in the year 2013. Corroborating the prosecution version, she has stated in the first information report that when she was returning home and when she reached near the Forest Department Jungle, the accused caught her and raped her on the point of country made pistol. In the examination-in-chief, it has nowhere been stated that she was pulled away from the pathway and raped in the fields which has been shown to be the place of occurrence in the site plan Exhibit Ka-2, proved by the I.O. which is said to be 20 paces away from the place point “B” where the appellant is said to have caught hold of the victim. Reverting to the cross-examination of the victim, she has stated that she sustained nail injuries on her neck and injuries of blunt weapon on her thumb. In cross-examination, she has stated that she is mother of eight children out of which four are married. Infact she is grand mother of many children, even the accused is also father of seven children having great grand children. She has stated that the accused was having a country made pistol with four cartridges, out of which three cartridges were in the hand of the accused and one was loaded in the country made pistol. It is not palatable how a rapist could hold three cartridges in one hand and one country made pistol in the other hand and could conveniently rape the victim. The victim has also stated that while the accused was raping her, he was armed with the country made pistol and when all the “work” was done, her son came. It is not palatable how a rapist could hold three cartridges in one hand and one country made pistol in the other hand and could conveniently rape the victim. The victim has also stated that while the accused was raping her, he was armed with the country made pistol and when all the “work” was done, her son came. Feeling proud on her young son, she has stated that, if her son would have been present at the time of occurrence, he would have thrown the accused on the ground. When her son came, the accused fled away quite far. Since the evidence of this witness is shaky, unbelievable and improbable. Corroboration is needed, which according to the prosecution case is present, inasmuch as, according to the prosecutrix, her son came and saw the appellant fleeing away. What Gajendra Singh PW-2, the son of the victim has to say in the matter is very interesting. He has stated that he heard the shrieking sound of his mother, he saw the appellant raping his mother, he caught the appellant, who was armed with a country made pistol who threatened this witness that if he would apprehend the accused, he would fire at him. He has stated that the place of occurrence was beside the road. He waited at the place of occurrence for 5 to 7 minutes. He saw rape being committed in his complete sense from 8 to 10 paces. His mother raise alarm for 5 minutes, when he heard her shrikes. This witness has stated that he did not himself raised any alarm. I am aware that fear of death is one thing but if a young son sees his mother being raped from 8 to 10 paces, seeing the occurrence for quite sometime and not raising any alarm is against human conduct and the indian values, I would say even in the remotest areas. 19. Although the victim has not stated that she became unconscious, but PW-2 Gajendra Singh has stated that his mother became unconscious and it took him 5 to 10 minutes to reach to his mother. 19. Although the victim has not stated that she became unconscious, but PW-2 Gajendra Singh has stated that his mother became unconscious and it took him 5 to 10 minutes to reach to his mother. I do not understand that if this witness was present at a distance of 8 to 10 paces from his mother, seeing the act of rape committing on his mother, how it took him 5 to 10 minutes to cover the distance of 8 to 10 paces to reach beside his mother. PW-2 Gajendra Singh in utter enthusiasm stated that he caught the accused red handed who took his Paijama with him. He was holding a country made pistol in one hand and in the other hand he was holding his Paijama while fleeing away. This witness denied whether the accused had muffled his face or not. I fail to understand, what was the hesitation with this witness in not stating that the accused had not muffled his face. Although, he has tried to explain that he did not raise any alarm because there was nobody there. His mother was naked, he covered her with clothes, which is a new story introduced by this witness. On one hand the mother is saying that if her son would have been present on the spot, he would have wrestled the accused, whereas the son is saying that he was helpless seeking the country made pistol. 20. Having found it difficult to accept the testimony of the victim on its face value, I searched for support from other material but found complete lack of corroboration on material particulars. First, by the medical examination of the victim which was of no avail since it did not result in any definite opinion that she was subjected to rape because she was medically examined on 15.3.2011, whereas the incident is said to have taken place on 21.1.2011, secondly the son Gajendra Singh PW-2 has shattered the case of the victim. PW-4 Dr. Sujata Gautam in cross-examination has stated that the victim was an aged lady and no opinion regarding rape could be given. 21. Another glaring feature due to which I am not inclined to rely on the prosecution theory is the enmity of the family of the victim with the family of the accused. PW-4 Dr. Sujata Gautam in cross-examination has stated that the victim was an aged lady and no opinion regarding rape could be given. 21. Another glaring feature due to which I am not inclined to rely on the prosecution theory is the enmity of the family of the victim with the family of the accused. The informant has admitted that her husband was convicted in the murder of one Om Singh, although he was acquitted in that appeal. She has also admitted that her husband had given one slip of sugarcane to the accused on his demanding and the money of the slip was to be credited to the account of the holder of the slip. The slip given to Kishore was credited in the account of husband of the victim. The son of the victim PW-2 Gajendra has denied of his father having given any slip to the accused but this witness had admitted that his father was convicted for the murder of Om Singh. Although the victim has stated that Om Singh and the appellant belonged to different families but she has pleaded ignorance whether the appellant and Om Singh were cousins or not. 22. Thus, due to above circumstances, I find it extremely difficult in relying upon the prosecution version to bring home the charges against the appellant. A perusal of the application under Section 156(3) Cr.P.C., reveals that the age of the accused was mentioned to be 40 years which was added by pen in the hand writing. The victim herself has admitted that even the grand daughter of the accused was married. The statement of the accused recorded under Section 313 Cr.P.C. reveals that he has stated his age to be 74 years. The observation that the trial Court felt that the accused was not 74 years of age is wanting in the statement of the accused under Section 313 Cr.P.C. Although this would not be the sole ground for acquitting the accused but this definitely would cause a dent in the prosecution case because a young led of 20 years accompanied by his 40 years old mother witnesses a 74 years old man to commit rape on his mother and both were helpless. All these things make the whole case improbable. 23. All these things make the whole case improbable. 23. The acts and omissions of the prosecutrix cannot be said to be minor contradictions because of such contradictions in the statements of the prosecution witnesses agile an active Court and deficiencies between the genuine cases from frivolous and concocted once. The role of the Court in such cases is to see, whether the evidence, available before the Court is enough and cogent to prove the accused guilty. 24. In the statement under Section 313 Cr.P.C., the accused has denied the occurrence. The statement of the accused finds support from the prosecution case too, according to which his money was due towards the victim for sugarcane. Thus, the prosecution has miserably failed to prove its case against the appellant and the appeal is liable to be allowed. 25. Accordingly the appeal is allowed. 26. The order of conviction and sentence dated 15.12.2014, passed by Additional Sessions Judge, Court No. 2, J.P. Nagar, in Sessions Trial No. 519 of 2011 (State v. Kishore), arising out of Case Crime No. 128 of 2011, under Sections 376, 506 I.P.C., Police Station Bachraiyoon, District J.P. Nagar is hereby set aside. 27. The appellant is in jail. He shall be released from jail forthwith and compliance of Section 437A Cr.P.C. may be complied with. 28. Let copy of this judgment be sent to trial Court.