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2019 DIGILAW 1016 (ALL)

Puneet v. State of U. P.

2019-04-19

SIDDHARTH

body2019
ORDER : Siddharth, J. 1. Heard learned counsel for the appellant, learned A.G.A. for State and perused the lower court record. 2. This Criminal Appeal has been preferred against the judgment and order dated 07.09.2016 passed by Additional Sessions Judge, Fast Track Court No. 1, Aligarh, in Sessions Trial No. 933 of 2010 (State vs. Puneet and Others) convicting and sentencing the appellant to 5 years rigorous imprisonment and a fine of Rs. 5,000/-, on failure to deposit the fine to undergo three months additional imprisonment under Section 366 I.P.C. and sentenced to 7 years rigorous imprisonment and a fine of Rs. 10,000/-, on failure to deposit the fine to undergo four months additional imprisonment under Section 376 I.P.C. 3. Prosecution case, in short, is that on 03.10.2009 at about 5:00 p.m in the evening minor daughter of informant (hereinafter referred to as 'victim') aged about 15 years had gone to collect cow dung. In the field of Janki Prasad, appellant, Puneet, was sitting and he forcibly dragged the victim to the field and raped her. When she screamed his son, Chintu Singh, aged about 17 years, who was going to his field on bicycle reached the scene of incident, where the appellant after threatening his son on gun point escaped. His daughter came to the house and informed about the entire incident. Six months ago the appellant had tried to rape the victim, report whereof was registered at Police Station-Pali Mukimpur on 26.03.2009. The informant informed, Nandan and Kanchan and then accuseds, Yashpal and Khushi Pal and other persons entered his house and threatened his son, Chintu Singh, of life and beaten him. When the informant protested Yashpal Singh pointed his country made pistol and abusing him stated that he will see how they will go to lodge the report since he will not permit him to reach there. 4. Report in this regard was registered by the Police Station-Palimukimpur as Case Crime No. 256 of 2009, under Sections 376, 452, 323, 506 I.P.C. and entered in the general diary. 5. The Investigating Officer prepared site plan and after recording evidence of the witnesses submitted charge sheet under Sections 376, 323, 506 I.P.C. 6. On committal, charges were framed against the appellant under Sections 366, 376, 452, 506, 323/34 I.P.C. Appellant denied the charges and sought trial. 7. P.W.-1, informant, reiterated the contents of the FIR in examination-in-chief. 5. The Investigating Officer prepared site plan and after recording evidence of the witnesses submitted charge sheet under Sections 376, 323, 506 I.P.C. 6. On committal, charges were framed against the appellant under Sections 366, 376, 452, 506, 323/34 I.P.C. Appellant denied the charges and sought trial. 7. P.W.-1, informant, reiterated the contents of the FIR in examination-in-chief. In cross-examination he stated that he earlier lodged a report regarding incident of rape on 26.03.2009 at Police Station. He then stated that it was only report of teasing wherein final report was submitted by the inspector after taking money and he filed protest petition against the same which is still pending. He informed this fact to the investigating officer but why he did not mention it in his statement he does not knows. He has no document of the proof of age of victim and he is stating her age on the basis of information given by his mother. He stated that the accuseds had beaten his son and daughter and they were injured but he did not got them medically examined. 8. P.W.-2, the victim, stated in her examination-in-chief that at the time of incident she was aged 15 years. She had gone to dump the garbage at about 4:30 p.m. when the appellant came out from the field of Janki Prasad and after gagging her mouth dragged her to the field. She knows him since he belongs to her village and is her neighbour. The appellant threatened her by country made pistol of life. Thereafter he dragged her to the field and after putting his hand over her mouth committed rape on the pistol point. She screamed and her brother, Chintu, hearing the same came on the spot. Brandishing the country made pistol the appellant ran away. Her brother chased him. She came to her house along with her brother and narrated the entire incident to her father. She, her brother and father went to the house of the appellant for making his complaint to his father and thereafter they came back. After coming back her brother, Chintu, was washing her face and hands when the appellant, Khushi Ram and Yashpal, entered her house and brandishing the country made pistol, they threatened them indulged in violence and stated that in case report is lodged with the police, the victim and her brother would be killed. After coming back her brother, Chintu, was washing her face and hands when the appellant, Khushi Ram and Yashpal, entered her house and brandishing the country made pistol, they threatened them indulged in violence and stated that in case report is lodged with the police, the victim and her brother would be killed. Out of fear they did not went to the police station and on the third day her father and brother went to the police station and lodged the report. Thereafter she was medically examined. She further stated that six months ago also the appellant tried to rape her in the field. 9. P.W.-3, Chintu, stated that on 03.10.2009 his sister went to dump the garbage at about 4:00 -4:15 p.m. When she did not returned, he went in her search and heard the scream of his sister coming out from the field. When he went there he found the appellant over his sister and he quickly got up and tied his pants and after brandishing a pistol ran towards the other side. He chased him but could not get hold of him. He came to his house with his sister and informed his father. They went to the house of the appellant to make his complaint but they were chased away and thereafter the appellant with Khushi Ram and Yashpal came to his house and assaulted him. They also threatened that they will not permit him to reach the police station. 6-7 months ago they also teased his sister and thereafter they entered into compromise. 10. P.W.-4, Doctor Veena Saxena, stated that she did not found any injury on the body of the victim. In her internal examination she did not found any injury on her private part. Her hymen was found old torn, vagina admitted one finger easily. No bleeding or cut was found. She prepared slide of vaginal smear and referred the victim for pathological and radiological examination. In the supplementary medical report the age of the victim was found to be above 16 years and less than 17 years. No evidence of school certificate proving the age of victim was produced. 11. P.W.5, Constable Shameem Khan, proved the registration of the FIR by P.W.-1 on 05.09.2009 at 16:30 and its G.D. entry. 12. P.W.-6, Ram Avatar Singh, the Investigating Officer, proved the investigation record of the case and the charge-sheet submitted before the court. No evidence of school certificate proving the age of victim was produced. 11. P.W.5, Constable Shameem Khan, proved the registration of the FIR by P.W.-1 on 05.09.2009 at 16:30 and its G.D. entry. 12. P.W.-6, Ram Avatar Singh, the Investigating Officer, proved the investigation record of the case and the charge-sheet submitted before the court. 13. The statement of the appellant was recorded under Section 313 Cr.P.C. wherein he denied the occurrence and alleged false implication due to enmity. 14. The court below found that regarding the earlier incident which took place six months ago the father of the victim has lodged a FIR which was registered as Case Crime No. 99 of 2009, under Sections 354, 504, 506 and 120-B I.P.C. The aforesaid report was lodged against the appellant and both the parties accepted the same. On account of compromise between the parties the police submitted the final report therein. The court found that the evidence of P.W.-1, the informant was only a hear say evidence since he was not present on scene of incident. However, statement of P.W.-3 was found reliable. The court below further found that evidence of victim, P.W.-2, has been supported by P.W.-3, who reached on the spot and saw the appellant committing rape of victim. The court did not found any contradiction between the statements of P.W.-2 and P.W.-3 which may compel it to disbelieve the prosecution case. The court below has held that merely because the medical report of the doctor does not supports the prosecution case accused cannot be acquitted of the charges. The court below held that even though the victim admitted that she had suffered injuries on her waist, legs and private part but the doctor did not found any injury, cannot be a ground to disbelieve the prosecution case. If the clothes worn by the victim were not taken in possession by the investigating officer and sent for examination, it will not make any difference. For the lapse on the part of Investigating Officer, the appellant cannot be rewarded. The delay of two days in lodging of the FIR was not considered fatal. The court found that the delay has been properly explained. It was the result of the threat given to the P.W.-2 and P.W.-3. For the lapse on the part of Investigating Officer, the appellant cannot be rewarded. The delay of two days in lodging of the FIR was not considered fatal. The court found that the delay has been properly explained. It was the result of the threat given to the P.W.-2 and P.W.-3. The court below has acquitted, Khushi Ram and Yashpal, of the charges under Section 452, 506, 323/34 I.P.C. and convicted and sentenced the appellant for offences under Section 366 and 376 I.P.C. 15. This court finds that with regard to the incident dated 03.10.2009 at about 5:00 p.m. the first information report was lodged on 05.10.2009 at about 04:30 p.m. by the informant, Rishi Pal Singh, who is father of the victim. The cause of delay has been explained as the threat meted out to the P.W.-2 and P.W.-3 by the appellant and co-accuseds that they will see how first information report is lodged and they will not permit them to reach the police station. In the first information report there is mention of this threat and therefore the finding of the court below that delay of two days in lodging of FIR cannot be said to be fatal to the prosecution case is correct. 16. The statement of the victim was not recorded by the Investigating Officer under Section 164 Cr.P.C. at all. 17. The victim stated that where the incident took place the field was plain but she also stated that it was a field full of standing bajra crops and when she was dragged inside the crops, bajra bushes got broken and a passage got made in the entire field between the crops. From the place where the rape was committed the main road was clearly visible. No one passed through the road and the appellant committed rape for 20-25 minutes. During the commission of rape her mouth was closed by the appellant by his hand. During the period he committed rape the main road was clearly visible and only after he concluded the offence she raised the alarm and her brother came. The story has some improbable features. In a standing bajra crops field if the victim was thrown on the ground and subjected to rape by the appellant after removing her clothes it is unbelievable that not even a scratch was found on the back side of the body of the victim. The story has some improbable features. In a standing bajra crops field if the victim was thrown on the ground and subjected to rape by the appellant after removing her clothes it is unbelievable that not even a scratch was found on the back side of the body of the victim. The broken stems of the crops are pointed and a person lying over them or thrown over them is certain to suffer injuries. In the present case the doctor has not found any injury on the body of the victim in her external examination. P.W.-2 has further stated that after she along with her father and brother went to make complaint of the appellant to his house they were chased away and thereafter the appellant and the co-accuseds came to their house and assaulted them by danda. She also stated that they caused head injuries to P.W.-2 and P.W.-3 and their hands were broken but no such injury was found on the head and hand of P.W.-2 and P.W.3 who was never examined by doctor prior to or after registration of FIR. This shows that the statement of P.W.-2 was not worth reliance without corroboration. 18. The victim P.W.-2 further stated that blood and semen stains were there on her salvar and she had shown the same to the Investigating Officer. She further stated that her upper garment was also torn but the Investigating Officer, P.W.-6 denied that such clothes were ever shown to him by the victim. The victim has admitted that there was dispute regarding nali between the father and elder uncle of the appellant and her family members. She admitted that at the time of incident her field was irrigated by this nali and the accuseds used to say that they will not permit them to irrigate their field from this nali. Therefore, there were other reasons for implication on the appellant and other co-accuseds. It is also possible that the earlier FIR was lodged against the appellant by the father of the victim only to pressurize the appellant and his other family members so that they may not prevent him from irrigating his field from the disputed nali. 19. The statement of the victim considered as a whole cannot be said to be absolutely reliable. The medical report does not supports the prosecution case at all. 19. The statement of the victim considered as a whole cannot be said to be absolutely reliable. The medical report does not supports the prosecution case at all. The doctor has opined that no definite opinion of rape can be given. It is also possible that the FIR was also deliberately lodged with regard to two day's old incident so that the absence of proof of rape in the pathological examination may not be fatal to the prosecution case. The doctor has not given any opinion that the hymen of the victim was found to be recently torn and partly healed. The commission of rape of 20-25 minutes, as alleged in the statement by the victim, is not a reliable statement. When the rape was being committed in full public view for 20-25 minutes and the place was visible from the main road, it is improbable that no one passed from the main road and only P.W.-3, the brother of the victim passed and only then had she made a scream which attracted him. 20. The Apex Court has cautioned against conviction only on the sole testimony of victim in paragraph 21 in the case of Md. Ali @ Guddu (2015) 3 SCC (Cri.) 82 as follows : 21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval to the same. 21. This court in the case of Bhoora Yadav and Ors. vs. State of U.P. MANU/UP/0186/2016 has held in paragraph 10 and 11 as follows:- "10. 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 a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508 . 11. 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 persons even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & others Vs. State of Maharashtra, (1999) 1 SCC 220 ." 22. This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe v. State of Maharashtra MANU/SC/0607/2006: (2006) 10 SCC 92 , wherein it has been observed that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court and if the version given by the prosecutrix is supported by medical evidence and the whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 23. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Ors. v. State of Assam (2001) 1 GLR 516. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 23. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Ors. v. State of Assam (2001) 1 GLR 516. In paragraph 16 of the judgment it is held as under: "It is true that a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises strong doubt which over-shadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion. This is undoubtedly not a case where the prosecutrix has the last 'say'." 24. After considering the above authorities, this court finds that earlier on 26.03.2009 the informant had lodged a report u/s 354, 504, 506 and 120-B I.P.C. against the appellant wherein a final report was submitted by the police. P.W.-1 has admitted in his cross-examination that the Inspector took money from the other side and submitted final report and his protest petition against the same is pending. It is quite possible that P.W.-1 this time lodged the report alleging clear offence of rape against the appellant so that the police may not be able to help him. Along with the appellant his cousins, Yashpal Singh and Khushi Ram were also implicated. Yashpal Singh admitted in his statement that the informant has enmity with their family and he has been falsely implicated. 25. In the FIR informant has stated that he had earlier lodged a FIR of attempt to rape against the appellant. It was also alleged in the FIR that there were other persons, apart from the accuseds, who entered the house of the informant and beaten his son, Chintu Singh. However, the victim claimed that she was also beaten by them and she suffered injuries on head and her heads were broken by the accuseds. It was also alleged in the FIR that there were other persons, apart from the accuseds, who entered the house of the informant and beaten his son, Chintu Singh. However, the victim claimed that she was also beaten by them and she suffered injuries on head and her heads were broken by the accuseds. This fact proves that victim had made a statement which was not stated in FIR nor found to be correct from her medical examination report. 26. The informant himself entered into compromise, in the earlier case of teasing of victim against the appellant, lodged by him before police by filing his affidavit, as clear from record, but later he filed protest petition against the final report submitted by the police and has stated in his cross-examination that police took money from the other side for submitting the final report. 27. Considered as a whole the prosecution case is doubtful. The allegations against the appellant have not been proved beyond doubt. The conviction of the appellant by the court below is unsustainable. 28. The judgment and order of the court below is set aside. 29. This appeal is allowed. 30. Let the appellant be released from jail forthwith. Record of the court below be sent back along with copy of this judgment for compliance.