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2019 DIGILAW 607 (ALL)

Gaurav v. State of U. P.

2019-03-06

SIDDHARTH

body2019
ORDER : 1. This Criminal Appeal has been preferred against the judgment and order dated 01.07.2017, passed by Additional Sessions Judge/FTC Court, Saharanpur in Sessions Trial No. 07 of 2015, State vs. Gaurav @ Rikki, sentencing and convicting the appellant under Section 366 I.P.C. for rigorous imprisonment for seven years and fine of Rs. 20,000/- under Section 368 I.P.C. rigorous imprisonment of Seven years and fine of Rs. 20,000/- and under Section 376 I.P.C. for seven years rigorous imprisonment and fine of Rs. 20,000/- with default stipulation. 2. The prosecution case is that the first informant, Rajesh Kapoor, gave an application before the police station Kotwali, Sadar Bazar, Saharanpur on 26.05.2014 stating that his daughter, Ena Upadhyay, aged about 23 years, wife of Sri Siddharth Upadhyay and their, daughter, Kumari Pearl Upadhyay, aged about one and the half years had come to his house from Nasik for few days. On 18.05.2014 when he and his wife and son had gone to Satsang at 9:30 am leaving behind Ena and Pearl along with their servant, Sunil Rawat, he received a phone call at 12 p.m. from his servant, Sunil Rawat, that Gaurav Juneja, father of Naresh Juneja, mother, Madhubala and Sister, Ritika, came to my house and compelled Ena to accompany them. Gaurav Juneja took and a box from his almirah containing Rs. 50,000/- cash, one gold chain of two tolas, two gold rings and some jewellery. On the sound of the falling of box, his servant, Sunil Rawat, saw it. When his daughter, Ena, refused to go with them they forcefully took her with them and thereafter the servant called him on phone and he came back and is lodging FIR. 3. A Case Crime No. 268 of 2014 under Sections 366, 380 I.P.C. was registered on 26.05.2014 and investigation was started and after recording the statement of the witnesses the investigating officer submitted charge sheet under Sections 366, 368, 380, 411, 376 I.P.C. whereof the Magistrate took cognizance and committed the case for trial. The trial court framed charges under Section 368 I.P.C. against accused, Rajiv Gosai, and charges under Sections 366, 368, 380, 411, 376 I.P.C. against accused Gaurav @ Rikky Juneja. 4. The Investigating Officer on 30.05.2014 in the presence of Rajesh Kapoor, Advocate, Vinod Kumar and Vishwesh Kumar, recovered certain jewellery wrapped in a cloth from the possession of the appellants. 5. 4. The Investigating Officer on 30.05.2014 in the presence of Rajesh Kapoor, Advocate, Vinod Kumar and Vishwesh Kumar, recovered certain jewellery wrapped in a cloth from the possession of the appellants. 5. The prosecution examined PW-1, Rajesh Kapoor, the informant who repeated the FIR version and in his cross-examination he proved that the goods recovered by the Police from the possession of appellant belonged to him. He denied that he is aware that his daughter has left the company of her husband because of some dispute. 6. The victim, Ena Upadhyay, was examined as PW-2 who admitted that she knows the accused, Gaurav Juneja, since last six years, he took her in the year 2008 from her house but where, she does not remembers. He raped her and took her photographs and blackmailed her. He used to say that accompany him otherwise he will disclose the photograph to her parents. She got married to Siddharth Upadhyay five years back. She came to her parent's house on 05.04.2014. On 29.04.2014 she went to Nasik with her father. On 03.05.2014 she had a quarrel with her husband and she came to Saharanpur at her father's place on 05.05.2014. On 18.05.2014 when her father and mother had gone to temple, accused, Gaurav, came and stated that he has to talk to her and he took Rs. 50,000/- and other valuables from the almirah of her father. He took her and her daughter forcefully in car and gave her some drink which made her unconscious and when she gained conscious she was in a flat at Delhi. In the flat at Delhi his friend Rajiv was also there. Gaurav raped her at Delhi and when his money got finished he brought her to the house of the parents-in-law of Rajiv at Jagadhari. Gaurav raped her at Jagadhari also on 29.05.2014. Police recovered her along with her daughter alongwith gold of her father at Jagadhari. She was medically examined and her statement under Section 164 Cr.P.C. was recorded before the Magistrate. She was given in the custody of her father. 7. In her cross-examination she stated that she came from Nasik to Ambala after quarreling with her husband. She admitted that in the case of year 2008 she gave her statement on her free will. She was medically examined and her statement under Section 164 Cr.P.C. was recorded before the Magistrate. She was given in the custody of her father. 7. In her cross-examination she stated that she came from Nasik to Ambala after quarreling with her husband. She admitted that in the case of year 2008 she gave her statement on her free will. The defense filed number of photographs of the victim along with accused, Gaurav, and in her cross-examination when the victim was asked whether the photographs are hers, she denied that the face of the girl does not resembles her face. She admitted that in the year 2008 she gave her statement before the Magistrate on her own. She stated that when she was abducted by accused, Gaurav, he put hanky on her mouth and she became giddy but she admitted that she had not stated this fact in her statement before the Magistrate and also admitted that she did not stated that she was also raped by Gaurav at Jagadhari. She stated that after being kidnapped from Saharanpur she was unconscious till she reached Delhi and was always unconscious and therefore she never made any alarm nor told anything to neighbours. She stated that she never changed the clothes throughout her stay at Delhi nor her daughter changed the clothes. When the defense asked her to show the tattoo in her hand bearing the nick name of accused "Rikki" tattooed thereon she refused to show the same. She denied that she has no photo ID proof and all the photographs taken at Ashok Hotel, Delhi, where she stayed with Gaurav, were denied by her. She also denied that she did not stated in her statement 164 Cr.P.C. that when she was going with Gaurav she said that let her take her daughter along. She denied that her father has lodged a false case. She further denied that she never stayed with the accused, Gaurav, at Room No. 101 at Ashok Hotel, Delhi. She denied her photographs taken in the aforesaid hotel which were filed by the defense in evidence. 8. PW-3, doctor, Gurmeet Kaur, proved the medical report, supplementary medical report and pathological report and did not found any evidence of sexual assault. PW-4, Inspector, Vikram Pal Sharma, proved the documents regarding investigation, charge sheet, FIR, etc. She denied her photographs taken in the aforesaid hotel which were filed by the defense in evidence. 8. PW-3, doctor, Gurmeet Kaur, proved the medical report, supplementary medical report and pathological report and did not found any evidence of sexual assault. PW-4, Inspector, Vikram Pal Sharma, proved the documents regarding investigation, charge sheet, FIR, etc. He stated in his cross-examination that the informant is an advocate and he lodged FIR after 7-8 days and the victim is married woman having child. He admitted that the victim and the accused, Gaurav, were known to each other and they used to frequent each others house. The father of the victim has earlier lodged a case against the accused-appellant, Gaurav. In the medical examination of the victim no injuries were found on her body. He also admitted that in the FIR there was no mention of theft of the two gold bangles and it was mentioned that some other articles have been stolen which shall be informed later. He admitted that in the FIR the theft of two gold sets was not mentioned but they were shown in the recovery. When the recovery of the victim and her daughter was made from Jagadhari no statement of any local witnesses was recorded there. 9. PW-5, Sunil Rawat, servant of the informant proved that the incident took place on 18.05.2014 and he further stated the facts mentioned in the FIR. 10. The statement of the accused was recorded under Section 313 Cr.P.C. and he denied the alleged offence. The accused, Gaurav, said that he has been falsely implicated in this case after being caught outside the civil court, Saharanpur. 11. The defense filed number of documents before the trial court in evidence, viz. the FIR dated 25.05.2008 registered as Case Crime No. 225 of 2008 under Sections 363, 366 I.P.C. and the judgment of acquittal in the aforesaid Case Crime No. in Sessions Trial No. 472 of 2009 dated 19.04.2010. Original photographs of the victim, Ena and Pearl and her statement in Sessions Trial No. 472 of 2009. Statement of Rajesh Kapoor, her father, were also filed. 12. Original photographs of the victim, Ena and Pearl and her statement in Sessions Trial No. 472 of 2009. Statement of Rajesh Kapoor, her father, were also filed. 12. The court after going through the material on record found that the victim was a married woman and the accused, Gaurav Juneja, kidnapped her against her will and committed rape of her and therefore he is liable to be punished under Section 366, 368, 376 I.P.C. The other accused, Rajiv Gosai, was acquitted of the charges under Section 368 I.P.C. on the ground that the prosecution failed to prove that the victim was kept in the house at Jagadhari belonging to the parents-in-law of accused, Rajiv Gosai. 13. The appellant, Gaurav Juneja, has preferred this appeal against the judgment and order of conviction before this court. 14. Heard Sri Noor Mohammad learned counsel for the appellant, learned A.G.A. for the state and perused the record. 15. Learned counsel for the appellant has argued the matter and has placed the following basic points which are being reproduced herein-below:- (i) The alleged incident taken place on 18.05.2014 at 12.15 p.m. while the first information report was lodged after 8 days i.e., 26.05.2014. There is no plausible explanation regarding the delay of 8 days. (ii) Regarding the same charges co-accused, Rajiv Gosai, was acquitted by the trial court. (iii) It is case of consenting party, the prosecutrix left the house on her own free will. There was no illegal abduction and detention of the victim by the appellant. (iv) Reliance has been placed on the Case of Raj Kumar @ Raju Yadav @ Raj Kumar Yadav vs. State of Bihar, 2006 (2) All JIC 414 (SC). In this case the trial court awarded the sentence of 7 years under Section 376 I.P.C. Appeal was preferred before High Court. The High Court affirmed the conviction and sentence awarded to the appellant. The appellant approached the Apex Court by filing Special Leave Petition. The Apex Court reduced the sentence awarded to the appellant to period already undergone, while the appellant served approximately 3 and half years of incarceration. (v) Another judgment in Case of Santosh alias Mahesh vs. State of U.P. passed by this Court in Criminal Appeal No. 1757 of 2005 reported in 2008 (60) ACC 782 Allahabad High Court has been cited. (v) Another judgment in Case of Santosh alias Mahesh vs. State of U.P. passed by this Court in Criminal Appeal No. 1757 of 2005 reported in 2008 (60) ACC 782 Allahabad High Court has been cited. In this case High Court modified the sentence of 7 years to 5 years while the victim was 8 months old girl and the trial court awarded the sentence under Section 376(ii)(f)/511 I.P.C. 16. Per contra, learned A.G.A. has submitted that the prosecution has proved the case against the appellant beyond reasonable doubt and the finding of the court below is that the appellant kidnapped the victim knowing well that she is a married woman and thereafter raped her. The judgment of the court below does not suffers from any illegality in view of the evidence on record. He has justified the judgment of the court below and has stated that the punishment awarded to the appellant is justified and calls for no interference and the criminal appeal may be dismissed. 17. After considering the rival submissions this court being the court of appeal has gone through the material on record and has found that the judgment of the court below is not absolutely justified. 18. The defense produced considerable evidence on record in the form of the photographs of the victim in the company of the accused. The details of chatting on mobile phone between the victim and the appellant. The photographs are clearly of the victim and she has although denied that the face of the girl is not hers but all the photographs are of the same girl/woman and belong to the victim. In her cross-examination, she has admitted that in one photograph there is some semblance of the face with her. 19. PW-1 and PW-2 have refused to accept the photographs of the victim as that of the victim but the fact is apparent from the record. 20. One of the photograph of the victim clearly bears a tattoo on the inner side of her left hand which bears nick name of the appellant, Gaurav (Rikky). In the cross-examination, the defense asked the victim to show her hand bearing the tattoo in the name of the appellant but she refused to show the same. This clearly shows that the victim was concealing the correct facts from the court. 21. In the cross-examination, the defense asked the victim to show her hand bearing the tattoo in the name of the appellant but she refused to show the same. This clearly shows that the victim was concealing the correct facts from the court. 21. The court below has recorded the finding that the details of chatting between the victim and the appellant are not clear as to who were the persons chatting. A careful consideration of contents of the chatting details shows that it is between the victim and the appellant and in their chatting the name of husband of the victim, Siddharth Upadhyay, finds mention. The chat details clearly shows that the victim was unhappy with her marriage and she had premarital affair with the appellant and therefore she wanted to divorce her husband. The incident dated 18.05.2014 and the call details from 01.05.2014 show that the victim was trying to get rid of her husband and to live with the appellant. Finally, when she has left her matrimonial house on 04.05.2014 she has sent a message to her husband stating that is leaving the house and has stated that do not try to search me. 22. From the certified copy of the judgment of the Sessions Trial No. 472 of the 2009, it is clear that the victim had eloped with the appellant earlier also in the year 2008, but in her statement before the trial court she stated that she left her house on her own will and went to different places and this resulted into acquittal of appellant and his mother. Despite her statement in that case that she left house of her own will she has stated in the present case that in the year 2008, Gaurav took him to the Hotel and took his vulgar photograph and thereafter kept on blackmailing him for coming alongwith him. In the year 2008 her father had lodged the FIR against the appellant and his mother that they have abducted her minor daughter along with others and her daughter had taken rupees 1 lakh and jewellery of about rupees 1 lakh along with her while running away with Gaurav. This case resulted into acquittal because the victim did not supported the prosecution case therefore her statement that in the year 2008 the appellant abducted her and raped her is clearly false. 23. This case resulted into acquittal because the victim did not supported the prosecution case therefore her statement that in the year 2008 the appellant abducted her and raped her is clearly false. 23. The trial court found part of the story set up by the prosecution as false regarding the allegation under Sections 380, 411 I.P.C. The trial court has recorded the finding that the ornaments recovered are not the same as alleged to have been stolen and the prosecution has not stated anything about the recovery of rupees 50,000/- allegedly taken away by the accused-appellant from the house of the informant. 24. One very vital aspect of the case is that there is unexplained delay of 8 days in the lodging of FIR. The incident took place on 18.05.2014 and the first information report was lodged on 26.05.2014. There is no explanation at all on record as to why when the informant got the information that theft has taken place in his house and his daughter was abducted by the appellant on 18.05.2014 he did not lodged the FIR till 26.05.2014, himself being a lawyer in the district court, Saharnapur. This conduct of the prosecution shows that the informant and his family members were aware that their daughter is not happy with her marital relationship and has gone with the appellant with whom she had per-marital affair and it is possible that on account of anger towards his daughter no FIR was lodged but thereafter in order to save honour of family and future of his daughter, who was married, he lodged the FIR under social compulsion. 25. The Apex Court in the case of Md. Ali @ Guddu vs. State of U.P. (2015) 3 SCC (Cri) 82 has held that where there is unexplained delay in lodging of the FIR the prosecution case comes under the cloud. It has been held in paragraph 20 as follows:- "20. The obtaining factual matrix has to be appreciated on the touchstone of the aforesaid parameters. Be it clearly stated here delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW-2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown up daughter. In the absence of any explanation, it gives rise to a sense of doubt. That apart, the factum that the appellant informed the mother of the victim that he had left the prosecutirx at the door of her house also does not command acceptance. The recovery of the prosecutrix by the brother and her friends also creates a cloud of suspicion. We are not inclined to believe the prosecution version as has been projected that one Arif had informed the brother of the prosecutirx that his sister was at his place but for reasons best known to the prosecution, Arif has not been examined. That apart, the persons who were accompanying the brother have also not been examined by the prosecution. Thus, the manner of recovery of the prosecutrix from the house of Arif remains a mystery." 26. The finding of the court below that no woman would make the allegation of rape against anyone putting her reputation to stake without there being justifiable reason and reliance upon the some judgments of the Apex Court in this regard is not attracted to the facts of the present case. The Apex Court in paragraph 21 in the case of Md. Ali @ Guddu (supra) had held:- "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 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. 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 un-reproachable, 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." 27. In this case the victim is a major and married woman having a child. In this case the victim is a major and married woman having a child. She is unhappy with her marital relationship with her husband and has absconded with her pre-marital paramour. Record reveals that she has not leveled the allegation of rape because of any crime committed against her by the appellant but it is clear that she has made the allegation only to protect herself from social stigma because of running with her pre-marital paramour despite being married to a man from whom she has already begotten a daughter. This court in the case of Bhoora Yadav and Others vs. State of U.P. 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. 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 and Others vs. State of Maharashtra, (1999) 1 SCC 220 ." 28. This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe vs. State of Maharashtra, (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. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Others vs. 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." 29. 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." 29. The Apex Court in the case of Raju Yadav @ Rajkumar Yadav vs. State of Bihar, 2006 (2) All JIC 414, has already cited on behalf of the appellant has considered the delay of 3 days in lodging of the FIR and inconsistencies in the medical evidence regarding rape and has reduced the punishment of rigorous imprisonment of 7 years to the period of approximately three and the half year undergone by the accused as sufficient punishment. In the present case the appellant has undergone about four years and 9 months of imprisonment out of maximum sentence of 7 years awarded to him. 30. Keeping in view the overall facts and circumstances of the case and the fact that the appellant has undergone about 4 years and 9 months of imprisonment, there is adequate and special reasons for reduction of the sentence below the statutory minimum sentence. 31. Keeping in view the fact that the appellant got involved and entered into physical relationship with a married woman, although she was also equally liable for her fault of entering into such relationship, this court feels that conviction of the appellant be confirmed but the sentence awarded to him be reduced to the period already undergone. The appellant is directed to be released forthwith, if not, required in any other case. 32. This appeal is partly allowed. The record of the trial court be remitted to the court below along with copy of this order for necessary compliance.