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2023 DIGILAW 1646 (ALL)

Ram Chandra v. State of U. P.

2023-07-11

KARUNESH SINGH PAWAR

body2023
JUDGMENT Karunesh Singh Pawar, J. Heard Sri Ashok Kumar Singh, learned counsel for the appellants, Sri Alok Tiwari, learned A.G.A for the State- respondent and perused the record. 2. The present appeal has been filed against the judgment and order dated 10.03.1989 passed by the then VIII Additional Sessions Judge, Lucknow in Sessions Trial No.286 of 1988 ,"State v. Ram Chandra & Ors.", Case Crime No. 151/85, under Section 376 IPC, Police Station Itaunja, District Lucknow whereby the appellants were convicted for the offence punishable under Section 376 I.P.C. and sentenced each of them to undergo rigorous imprisonment for a period of five years with fine of Rs.1,000/- and in default of payment of fine, they are directed to undergo further simple imprisonment for a period of four months. 3. As per Office report dated 20.08.2016, the Principal Magistrate, Juvenile Justice Board, Lucknow in its report dated 17.08.2016 has held the appellant No.3-Sarjoo alias Sahju juvenile at the time of incident. The report is on record. 4. The appellant No.2-Ashok Kumar has also been declared juvenile vide report dated 24.12.2020 sent by the Principal Magistrate, Lucknow. This fact has been taken note in the order dated 12.01.2021. Thus, learned counsel for appellants has argued the present appeal only with regard to appellant No.1- Ram Chandra. 5. Prosecution case is that on 27.09.1985 at about 07:30 pm when the victim was going to attend the call of nature, the appellants caught hold her mouth and dragged her into the house of Maiku where no one else was present and firstly, she was raped by the appellant-Ram Chandra and thereafter by Ashok and Sarjoo. At that time, Ashok and Sarjoo put lathi on the throat of victim and they were saying that if she resists she will be killed. She stated that while she was being raped by Ram Chander, Ashok and Sarjoo were pressing her throat by lathi and when Ashok raped her, Ram Chander and Sarjoo had overpowered her by lathi and when Sarjoo raped her, Ram Chander and Ashok had overpowered her by lathi. After committing rape, her kurta and salwar were washed with water and she was asked to wear them. After committing rape, her kurta and salwar were washed with water and she was asked to wear them. While wearing, she got a chance to raise the alarm and after hearing the alarm, Abid Ali and Ram Swaroop came there and they had seen these accused persons in the torch light going out of the room. Thereafter, they took the victim to her home where she told about the incident to her father. The F.I.R. of the incident was registered on 27.09.1985 at about 8:25 pm, P.S. Itaunja, District Lucknow and prompt medical was conducted on the very next day i.e. 28.09.1985. The clothes of the prosecutrix were taken by the police and sent for chemical examination. 6. The Investigating Officer after taking statement of the prosecution witnesses and completing the formalities, filed charge-sheet. Charges were framed vide order dated 05.10.1988 by VIII Additional Sessions Judge, Lucknow against the appellants. 7. Prosecution in support of its case has examined seven witnesses i.e. PW-1 Kamini Devi, PW-2 Dr. Pushpa Nautial who conducted the medical examination of the prosecutrix, PW-3 Shiv Shanker, father of PW-1, PW-4 Ravindra Kumar Singh who is fard witness, PW-5 Mohd. Aslam Khan, he is also fard wittiness of the torch, PW-6 Constable Ramesh Singh who is scriber of the F.I.R., PW-7 S.I. Kalikanand Agnihotri who has conducted the investigation. 8. PW-1 in her examination in chief has submitted that at about 07:30 pm while she was returning after attending the call of nature, when she was near Chamaro Puliya and was going towards her home and reached in a koliya, one Ashok passed her and tried to catch her. Then she ran backwards therefrom. Ram Chandra and Sarjoo came from behind and Ram Chandra caught hold her throat and Ashok caught her hand and then these persons dragged her to the house of Maiku Chamar which was empty because it rained and therefore, persons of this house went to the railway colony. The accused persons took her beneath chappar in the house of Maiku Chamar and lay her on the floor by pressing her throat. Then Ram Chandra has raped her, and thereafter, Ashok and Sarju also raped her. She has stated that all the three persons have raped her one by one and while she was being raped by one accused, the other two accused persons had overpowered her by use of lathi. Then Ram Chandra has raped her, and thereafter, Ashok and Sarju also raped her. She has stated that all the three persons have raped her one by one and while she was being raped by one accused, the other two accused persons had overpowered her by use of lathi. During the course of rape her throat was pressed therefore, she could not raise alarm and after committing rape, Ashok was standing near her by pressing her throat and other two accused persons washed her clothes in the drainage water near the road and victim was asked to wear the clothes. While she was wearing the clothes on getting a chance, she raised alarm. Upon alarm being raised by her, Abid Ali and Ram Swaroop came there. Then they asked what happened. Then all the three accused persons ran away. Abid Ali and Ram Swaroop saw all three accused persons running in the torch light. Thereafter, Ram Swaroop and Abid Ali came to drop her home. Her father was present at home. She told about the incident to her father who took her to the police station and further report was lodged. In the cross-examination, she has stated that each accused has raped her for 15 minutes. She has denied the assertion that due to village party bandi and enmity she has falsely implicated the appellants. She has further stated that she has medically examined on the next date of the incident in the afternoon and doctor has seen her private part as well as other injuries, including the neck. PW-2, Dr. Pushpa Nautial, has conducted the medical examination of the victim. She has not found any mark of injury or even scratches on the body of the victim in her external examination and in the internal examination, she found hymen old torn and healed. As per the X-ray, in the opinion of the radiologist, the age of the victim was found 19 years. She stated that victim is habitual of sexual intercourse and no definite opinion regarding rape has been given by her. She further stated that she has not given any definite opinion of rape because if somebody forcibly rapes the victim then some mark of injury on the body of the victim must be found however, it was absent. She also stated that in case she finds the mark of injury, then she gives opinion of rape. She further stated that she has not given any definite opinion of rape because if somebody forcibly rapes the victim then some mark of injury on the body of the victim must be found however, it was absent. She also stated that in case she finds the mark of injury, then she gives opinion of rape. The PW-2 was declared hostile. PW-3, Shiv Shanker, father of the victim, has supported the prosecution case and stated that victim went out from the house at around 07:00 pm after cooking the food and when she was getting late, he and the family members worried and they came out of the house and saw Abid Ali bringing his daughter. He told him that she was weeping near puliya on the road. Upon being asked the victim narrated the incident to PW-3. In the cross-examination, he has stated that victim goes daily towards north of the village for attending the call of nature and she returned after half an hour. He admitted his statement that the victim was found in kuliya near road and statement regarding puliya is incorrect. He has denied the suggestion and has stated that at the time of incident, he was not related to communist party. He has denied the suggestion that accused-persons have been falsely implicated to take revenge. He has further denied the suggestion that accused are members of the congress and in the election of gram pradhan, accused opposed Abid Ali and due to that he lost. He has also denied his close relation with Abid Ali. Pw-4 is the witness of fard (clothes of the prosecutrix). PW-5 is the witness of torch. PW-6 is the scriber of the F.I.R. who proved the F.I.R. He also sent the clothes of the prosecutrix for chemical examination which is Ex.Ka-5. He has stated that he is not aware whether the report of the clothes which were sent to the chemical examination has been received or not. 9. Learned counsel for the appellants submits that statement of the victim is contrary to the statements of the PW-2. The medical does not corroborate the prosecution story. He submits that three persons are alleged to have raped the victim, however, in spite of the fact that it is a prompt F.I.R. and prompt medical, no mark of injury or scratch mark has been found on the body of the victim. The medical does not corroborate the prosecution story. He submits that three persons are alleged to have raped the victim, however, in spite of the fact that it is a prompt F.I.R. and prompt medical, no mark of injury or scratch mark has been found on the body of the victim. The statement of the victim is not believable. 10. Learned A.G.A has opposed the contention made by learned counsel for the appellants and has submitted that although it is true that the medical does not corroborate the prosecution story however, the statement of the victim is intact at every stage and that is sufficient for conviction of the appellants. Accused- appellants can be convicted on the sole testimony of the prosecutrix. 11. From perusal of the statements of PW-1 as well as PW-3, it is evident that as per their statements, Abid Ali took the victim after the occurrence. He was an important prosecution witness at least to prove the place of occurrence. For the reasons best known to it, the prosecution has not examined Abid Ali and Ram Swaroop, rather withheld. 12. It is also noteworthy that as per the statement of the victim, the incident took place beneath the chapper of Maiku in his house. The Investigating Officer has also not produced Maiku to prove the place of occurrence and also the fact whether no one was residing in that house and the incident had happened in that house. PW-3 has stated that after going to attend the call of nature, his daughter returned after half an hour whereas as per the statement of pw-1, she was ravished and raped by three persons and each accused raped her for 15 minutes and after that she cried and was taken by Abid Ali to her home. This entire process must have consume at least one hour, if not more. This part of the statement of pw-3 contradicts the testimony of the prosecutrix where she says that she was raped by three accused persons and each one of them raped her for 15 minutes. This entire process must have consume at least one hour, if not more. This part of the statement of pw-3 contradicts the testimony of the prosecutrix where she says that she was raped by three accused persons and each one of them raped her for 15 minutes. Not only this in spite of the fact that incident took place on 27.09.1985 in the night at about 07:30 pm, prompt F.I.R. was lodged and the medical was also promptly conducted on 28.09.1985, the victim allegedly was raped by three persons, her throat and mouth both were pressed and by doing that, she was overpowered and was not allowed to raise alarm and was dragged beneath the chapper of Maiku from the puliya, still there is no sign of struggle. This raises a suspicion on the testimony of the prosecutrix. 13. The PW-2 doctor who examined the victim has clearly opined that if somebody is raped, then there must be some sign of struggle. She has also opined that no external or internal injury has been found on the body of the prosecutrix. Hymen of the prosecutrix has been found old torn and healed. She opined that victim was habitual of sexual intercourse and has not given any definite opinion to rape. The testimony of the pw-3 further weakens the testimony of pw-1. The clothes of the prosecutrix were sent for chemical examination however, no chemical report of the same has been produced by the prosecution before the court to show some corroborative evidence. 14. The independent witnesses Abid Ali and Ram Swaroop have also been withheld by the prosecution which calls for taking adverse inference against the prosecution for withholding the important prosecution witnesses who have seen the victim after she was raped and also seen the accused running away in torch light. Further the fact that Maiku in whose house the victim was raped has also not been produced by the prosecution. This also again weakens the prosecution case. 15. Further the fact that Maiku in whose house the victim was raped has also not been produced by the prosecution. This also again weakens the prosecution case. 15. The Division Bench of this Court in Criminal Appeal No.7704 of 2007 "Vijay Singh v. State of U.P." and another connected appeal has held that if a victim is raped by three persons and a prompt medical is conducted and still there is no sign of struggle, the testimony of the prosecutrix in absence of such signs of struggle or any corroborative material becomes doubtful and the benefit goes to the accused. The relevant part of the judgment is extracted below:- "37. The law regarding the test to assess the quality of oral evidence led by the prosecution for proving or disproving a fact is well settled. In the case of Vadivelu Thevar v. State of Madras : AIR 1957 SC 614 , the Apex Court has held as follows: ".......... Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable." 38. Further, it is also well settled that while appreciating evidence the number of counts of witnesses is not an important aspect in a matter. What is important is the quality of evidence given by the witness(s). In the case of Laxmibai (Dead) through Lrs. and Another v. Bhagwantbuva (Dead) through Lrs. and others: (2013) 4 SCC 97 , the Apex Court held as under: "39. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced do not carry any weight." 39. In the present matter the evidence of "V" examined as P.W.- 1 that she was raped by three persons during which she bled from her private parts to such an extent that the clothes which she was wearing became blood stained and that she was injured by the accused persons by their act during the commission of rape does not find corroboration from any source. The medical examination done on her, though was after three days but that cannot give the result as given in the present case in the circumstances of the incident being taken place as alleged by "V" P.W.-1 and Paramsukh P.W.-2. Had "V" bled from her private parts due to rape being committed on her by three persons, the doctor would have discovered corresponding injuries in her private parts. Even her version that the accused persons has scratched her chest and private parts and she had received scratch marks and injuries on her chest and private parts also is conspicuously missing in the medical evidence. The blood stained clothes of "V" did not see the light of the day. The version even on this count does not find corroboration and is thus untrue. The finding of the doctor PW 3 in her medical examination report and statement in court also at this point is important to be referred and considered which says that "V" was habitual to sexual intercourse. The other factor that the incident was committed in a ploughed filed has been stated by "V" in her deposition. Her not receiving any bodily injury while being raped by three persons in a ploughed field while lying bare in it is also an impossibility." 16. In view of the foregoing discussions as also the judgment of the Division Bench passed in Vijay Singh's case (supra) and the fact that material prosecution witnesses i.e. Abid Ali, Ram Swaroop and Maiku have been withheld by the prosecution, testimony of the victim seems to be doubtful. 17. Except the statements given by pw-2 and pw-3 as also the testimony of the prosecutrix which has been contradicted by the pw-2 and pw-3, there is no other corroborative material having been produced by the prosecution. This Court is of the view that on such testimony of the prosecutrix, the appellant could not have been convicted vide impugned judgment and order dated 10.03.1989 (supra) and the same is hereby set aside. 18. Accordingly, the appeal qua appellant No.1 is allowed. The accused-appellant No.1-Ram Chandra is acquitted. If he is on bail, his bail bonds are cancelled and the sureties discharged. 19. Let the lower court record be sent back to the trial court along with a copy of this judgment.