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2017 DIGILAW 2667 (ALL)

SHIV NANDAN @ DABBOO v. STATE OF UTTAR PRADESH

2017-11-17

DINESH KUMAR SINGH

body2017
JUDGMENT : Dinesh Kumar Singh, J. The present appeal arises out of the judgement and order dated 18.1.2003 passed by the Additional Sessions Judge/Fast Track Court No. 3, Pratapgarh in Sessions Trial No. 478 of 2001. 2. As per the prosecution case, a written report dated 06.09.2001, Exh.ka-1 was given at Police Station, Udaipur, District, Pratapgarh by the complainant, P.W.1, Ram Naresh stating that when he came back from Ayodhya along with his wife on 5.8.2001, his daughter Vimla Devi, aged about 20 years told him that on 4.8.2001 at about 6:30 pm when she was returning back home from the flourmill of Lal Bahadur, on the way the appellant/accused came from behind and gagged her and laid her forcibly on the ground and raped her. On raising alarm, his younger daughter Sheela and his sister Foolgenda reached at the spot. The accused appellant threatened them that if the incident would be revealed to anyone else, he would finish the family. It is relevant to mention that the prosecutrix, the daughter of the complainant accompanied him to the police station on 6.08.2001 for lodging the F.I.R. 3. On the basis of the aforesaid written complaint, Case Crime No. 53 of 2001, Exh. ka-2 under section 376 read with section 506(2) IPC was registered at the Police Station on 06.08.2001 at 05:45 P.M. The prosecutrix was examined on 07.08.2001 by Dr. C.K. Jaiswal and the medical report of her examination is exhibit Ka-6. On 09.08.2001, on the basis of the X-ray report, Dr. C.K. Jaiswal prepared supplementary report, Exh. Ka-7, X-ray report prepared by Dr. S.C. Mishra is exhibited as Exh. Ka-5. The prosecutrix had menstruation 6 days earlier to the date of alleged incident, however, no injury on the private part of the prosecutrix was found. Neither bleeding was noticed nor was there any sign of discharge and it was opined that she was used to have sexual intercourse as her vagina easily admitted two fingers. On the basis of the said report, the age of the prosecutrix was determined to be around 19 years. Doctor could not give opinion regarding the rape of the prosecutrix. Neither any external injury was found on the body of the prosecutrix. Statement of the prosecutrix was recorded under section 164 Cr.PC before the magistrate. 4. On the basis of the said report, the age of the prosecutrix was determined to be around 19 years. Doctor could not give opinion regarding the rape of the prosecutrix. Neither any external injury was found on the body of the prosecutrix. Statement of the prosecutrix was recorded under section 164 Cr.PC before the magistrate. 4. After concluding the investigation, the Investigating Officer, P.W.-4 submitted the charge sheet Exh.Ka-5 on 14.08.2001 against the accused/appellant under Sections 376 and 506(2) IPC. After taking cognizance, the case was committed to the Sessions Court for trial. The charges were framed under Sections 376 and 506(2) I.P.C. which the accused/appellant denied and prayed for trial. 5. To prove the case, the prosecution examined Ram Naresh Maurya as P.W.-1, prosecutrix as P.W.-2, Constable, Ramesh Chandra as P.W.-3, Sub-Inspector, B.D. Choudhary as P.W.-4, Dr. S.C. Mishra as P.W.-5 and Dr. C.P. Jaiswal as P.W.-6. 6. The accused/appellant in his statement recorded under section 313 Cr.P.C., 1973 stated that the complainant, the father of the prosecutrix was angry with his father for the reason that his father who was appointed as Sarpanch of the village Panchayat gave a decision against the complainant and the complainant did not sign the Panchayatnama and left the panchayat in anger. To teach a lesson to the family of the accused/appellant, the F.I.R. was registered against him. In defence, the papers, 20 Ka/1 to 20 Ka/4 through list-19-Ka were filed. 7. The trial court after considering the evidence found the accused/appellant guilty of committing the offences under Sections 376 and 506(2) I.P.C. and sentenced the accused/appellant for 7 years rigorous imprisonment under Section 376 I.P.C. with fine of rupees 5000/- and in the default of payment of fine, one year additional rigorous imprisonment was awarded. The trial court convicted and sentenced the accused/appellant under Section 506(2) I.P.C. for one year rigorous imprisonment. It was directed that both sentences would run concurrently. 8. I have heard Mr. Ashok Kumar Srivastava learned counsel for the accused/appellant and Ms Meera Tripathi, learned AGA on behalf of the respondent State. 9. It has been argued by the learned counsel for the appellant/accused that the incident of rape alleged to be dated 04.08.2001 at 6:30 P.M whereas the F.I.R. was lodged only on 6.08.2001 on 5:45 P.M. The prosecution could not explain the delay satisfactorily in lodging the F.I.R. Therefore, the alleged incident itself becomes extremely doubtful. 9. It has been argued by the learned counsel for the appellant/accused that the incident of rape alleged to be dated 04.08.2001 at 6:30 P.M whereas the F.I.R. was lodged only on 6.08.2001 on 5:45 P.M. The prosecution could not explain the delay satisfactorily in lodging the F.I.R. Therefore, the alleged incident itself becomes extremely doubtful. However, I notice that there is no cross examination with respect to the complainant's going along with his wife to Ayodhya and coming back only on 05.08.2001. But, there is no explanation coming forth that after coming back from Ayodhya on 05.08.2001 why did the complainant could go to the police station only on the next date i.e. on 06.08.2001 in the evening to lodge the F.I.R. 10. Trial Court has concluded that this delay was because of the social conditions prevailing in the rural areas and to avoid bad name for the girl, the F.I.R. in respect of rape cases are usually lodged after consultation with the family and not otherwise. The trial court did not accept the contention on behalf of the accused/appellant that the delay was such which could deny the incident itself. 11. I find myself in agreement with this finding of the trial court that one day delay in lodging the F.I.R. after the complainant came back to his village from Ayodhya along with his wife on 5.8.2001 is not such which would deny the incident itself and further, I find that the prosecution has been able to explain the delay satisfactorily in lodging the F.I.R. Under prevailing social conditions in the villages, the family of the victim has to consider several aspects including social stigma, bad name and future of the victim. After considering all these aspects, if the family members muster the courage and conviction to pursue the case to secure justice, the F.I.R. is registered as it also involves the prestige and honor of the family and the victim both. 12. It has been submitted by the learned counsel for the appellant that the prosecutrix in her deposition had said that she was coming back after giving wheat for making flour at the flourmill of Lal Bahadur. She further said that a register was maintained at the flourmill where entries were made of the food grains received from various persons. 12. It has been submitted by the learned counsel for the appellant that the prosecutrix in her deposition had said that she was coming back after giving wheat for making flour at the flourmill of Lal Bahadur. She further said that a register was maintained at the flourmill where entries were made of the food grains received from various persons. The weight of the wheat which she took to the flourmill was 20 kg and she got it registered in the name of her father, Ram Naresh. The prosecution however did not examine the flourmill owner nor was his manager/servant got examined to prove this fact. The prosecution also did not produce the register of the flour mill in which entries of food grains brought there were made. This register was not taken in the custody by the Investigating Officer. 13. It has further been argued that it does not reason as to why the prosecutrix would go to get the floor made of wheat to a flourmill situated at a distance of .5-1.0 km from her house whereas the complainant P.W.-1 in his statement had accepted that there was a flour mill nearby his house. Thus, the whole story set up by the prosecution is that the prosecutrix went to the four mill to give wheat for making flour is not convincing and does not inspire confidence. 14. The learned counsel for the accused/appellant submits that it is against the normal human behaviour to say that the prosecutrix had gone to give wheat at a flour mill situated far away instead giving it at a nearby flour mill. Therefore, the incident becomes suspect and doubtful. 15. I have carefully examined the deposition of the prosecutrix. I do not find any question which was put to her in respect of her going to the flour mill of Lal Bahadur and not giving the wheat at the flour mill situated nearby. In absence of the examination of the prosecutrix on this issue who could have been the best person to explain this circumstance, the accused/appellant cannot draw any benefit of this circumstance as it cannot be said that the prosecutrix ought to have given the wheat to a nearby flour mill in all circumstances. This submission of the learned counsel has no force and is liable to be rejected. 16. This submission of the learned counsel has no force and is liable to be rejected. 16. Learned Counsel for the appellant accused has further argued that the incident as alleged in the written complaint was of 04.08.2001. The prosecutrix in her examination said that she came to her father's house from her matrimonial home five/six days before the date of incident. She said that she had come on to 24.07.2001 to celebrate the festival of Raksha Bandhan and to tie Rakhi to her brother. Thus, the learned counsel submits that if the statement of the prosecutrix is to be believed, the incident could have happened either on 29.07.2001 or 30.7.2001 and it could not be on 04.08.2001 as alleged or otherwise. He further submits that the prosecutrix further said that three days after the date of incident when her parents came back home, she narrated the incident. On the basis of this deposition of the prosecutrix, learned counsel submits that as per the F.I.R. version, the complainant came back on 05.08.2001, therefore, the incident would have been of 03.08.2001. However, from the statement of the prosecutrix, the incident could have been of 29.07.2001 or 30.7.2001 or 03.08.2001. He forcefully submits that there are glaring contradictions with respect to the date of the incident as has emerged from the depositions of P.W.-1 and P.W.-2, therefore, the date of the incident is wholly doubtful and cannot be believed and the case set up by the prosecution cannot be believed. 17. I have considered the submissions of the learned counsel on this aspect carefully. The minor contradictions in respect of the date of incident which are in the nature of embellishment cannot be said to be glaring contradictions so as to dislodge the prosecution case. The people who are not well educated usually are not very particular in remembering calendar dates and too much importance cannot be given to the deposition of the prosecutrix on this aspect to say that the incident did not happen on the date mentioned in the F.I.R. There is no substance in the submissions of the learned counsel for the accused/appellant that the incident could not have been of 04.08.2001 as alleged. 18. 18. Learned counsel for the appellant referring to the medical evidence and the statement of the prosecutrix has submitted that as per allegations and deposition of the prosecutrix, the accused/appellant thrashed the prosecutrix before committing the rape and then laid her with force on the ground. She received injuries on her back and she showed those injuries to her parents when they came back home from Ayodhya. She further said that her glass bangles got broken and she received injuries from the broken bangles on her hand. However, as per the medical report no injury was noticed on the body of the prosecutrix and P.W.-6, also in her statement had accepted that she did not notice any external or internal injury on the body of the prosecutrix. On the basis of the aforesaid medical evidence and statement of the witnesses which are contradictory to each other, the learned counsel for the appellant submits that to conclude that the prosecutrix was subjected to rape is wholly unbelievable for the prosecution could not explain these glaring contradictions. 19. The learned counsel has also submitted that there are contradictions in the statements of the P.W.-1 and P.W.-2 and the version in the F.I.R. The relevant witnesses, sister of prosecutrix, Sheela and her father's sister Phoolgenda were not examined. The incident also appears to be false inasmuch as according to the deposition of the prosecutrix, the prosecutrix after the crime went home crying and told the incident to her sister and father's sister whereas according to the F.I.R. these two persons came running to the spot on hearing the cries of the prosecutrix. The place of incident is also said to be not proved. As per the statement of the appellant accused under section 313 Cr.P.C., 1973 the reason for his false implication was the anger of the father of the prosecutrix against his father as mentioned above which cannot be ruled out. 20. It is to be seen that considering the medical evidence and testimonies of the prosecution witnesses whether the prosecution has been able to prove the case against the accused/appellant beyond reasonable doubt. 21. It is trite law that the conviction of the accused can be based on the sole testimony of the prosecutrix provided it is found to be worthy of credence and reliable. 22. 21. It is trite law that the conviction of the accused can be based on the sole testimony of the prosecutrix provided it is found to be worthy of credence and reliable. 22. On this aspect, the judgment of the Supreme Court of India in the case of State of Rajasthan v. Babu Meena (2013) 4 SCC 206 is relevant to mention wherein the following has been held :- "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 prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused." 23. Similarly, in the judgment of the Supreme Court of India in the case of Tameezuddin @ Tammu v. State (NCT of Delhi) (2009)15 SCC 566 it has been held as below :- "It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable." 24. In the light of the law laid down in the aforesaid judgments of the Supreme Court of India, if the evidence on record is examined, it would be clear that though the prosecutrix said to have received injuries on her back and she told and shown the injuries to her parents when they came back from Ayodhya on 5.8.2001 but no such injury was noticed by the doctor during her medical examination. Further, the doctor also did not find any injury on the private part of the prosecutrix nor there was any sign of bleeding or discharge. Further, the doctor also did not find any injury on the private part of the prosecutrix nor there was any sign of bleeding or discharge. The medical evidence also ruled out commission of rape of the prosecutrix. 25. I find that there are contradictions in the statements of P.W.-1 and P.W.-2, in respect of the incident and considering the medical evidence, the case set up by the prosecution is not convincing. No other witness was examined to support the allegation of rape. P.W.-1 is not the witness of the incident and he had deposed on the basis of what he was told by the prosecutrix. However, there are irreconcilable contradictions between the testimonies of two witnesses i.e. P.W.-1 and P.W.-2. Since the allegation of rape is not supported by the medical evidence and there are glaring contradictions in the statements of the prosecutrix and the P.W.-1, the complainant, and medical evidence which does not support the prosecution case, I am of the considered opinion that the prosecution has not been able to prove the case against the accused/appellant beyond reasonable doubt and therefore, the accused appellant is acquitted of the charge under Section 376 I.P.C. Allegation under Section 506(2) I.P.C. is also not proved and, therefore, the accused appellant is acquitted of the charge under Section 506(2) I.P.C. as well. In the result, appeal is allowed. Bail bonds are cancelled and sureties are discharged.