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2023 DIGILAW 1689 (ALL)

Surendra Yadav v. State of Uttar Pradesh

2023-07-14

KARUNESH SINGH PAWAR

body2023
JUDGMENT : 1. On the last date, status of the appellant was summoned vide order dated 14.12.2022. Shri Atul Kumar Verma, learned Advocate submits that he has already filed his vakalatnama on behalf of the appellant and confirms that the appellant is alive and therefore, no further report is required. 2. Heard Shri Atul Verma, learned counsel for the appellant and Shri Anant Pratap Singh, learned A.G.A. for the State. 3. The present appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 19.09.2006 passed by the Additional District and Sessions Judge, Ambedkar nagar, in case crime No. 30/2004, S.T. No. 56/2005, under Sections 363/366/376 IPC, P.S. Hanswar, District Ambedkar Nagar "State of Uttar Pradesh Vs. Surendra Yadav and others", whereby the appellant has been convicted under Section 363/366/376 IPC I.P.C. and under Section 366 he has been sentenced to undergo for a period of 4 years rigorous imprisonment along with a fine of Rs. 2000/-, under Section 366 IPC, he has been sentenced to undergo for a period of 6 years rigorous imprisonment along with a fine of Rs. 2000/-and under Section 376 IPC, he has been sentenced to undergo for a period of 7 years rigorous imprisonment along with a fine of Rs. 2000/-, with default provisions in each of the offences. All the punishment to run concurrently. 4. As per the written report, complainant's daughter Pratima Srivastava aged about 14 years has been enticed away by one Surendra in collusion of his parents on 28.05.2004 at about 12 hours in the day. On that day, the complainant and his wife were not present at home, only minor children were present. The prosecutrix on the pretext of going to the house of maternal uncle, went away with the accused persons. The complainant searched his daughter a lot, however, when she was not found, he lodged an F.I.R. on 05.06.2004 which was registered as case crime No. 30/2004, under Sections 363/366/376 IPC at P.S. Hanswar, District Ambedkar Nagar against the accused Surendra, his mother and father. In the F.I.R. he has alleged that when he has inquired at the house of the accused Surendra with his parents, then they started indulging into maar-peet. 5. The investigation was started by Sub Inspector Rameshchandra. The prosecutrix was recovered on 07.07.2004. In the F.I.R. he has alleged that when he has inquired at the house of the accused Surendra with his parents, then they started indulging into maar-peet. 5. The investigation was started by Sub Inspector Rameshchandra. The prosecutrix was recovered on 07.07.2004. The investigating officer after recording statement of the prosecution witnesses and preparing site plan has filed charge sheet against the accused persons. Against all the accused persons, charges were framed under Section 363/366 IPC and against Surender charges were framed under Section 376 IPC. 6. Prosecution to prove its case has produced following seven witnesses;- (i) PW-1 Harikrishan Shrivastava (father of the victim) (ii) PW-2 Jaykishun Lal (brother of PW-1) (iii) PW-3 Victim (iv) PW-4 Dr. Meera Verma (v) PW-5 Head Constable Ashok Kumar (subscriber of the F.I.R.) (vi) S.I. R.V. Gautam (vii) Head Constable Ashok Kumar 7. Statements of the accused under Section 313 Cr.P.C. were recorded where their case was of denial and stated that due to enmity, they have been falsely implicated. 8. PW-1 Harikrishan Lal Srivastava is the father of the victim. He has stated that on 28.05.2004, he and his wife were not home, they went to see his father-in-law two days ago. On 28.05.2004 at about 2:30 PM when they returned, minor children Ritesh Kumar and Brijesh Kumar who were about 9 years and ten years old, told that victim has gone with Surendra somewhere. When he went to the house of Surendra, then his mother shown sheer ignorance regarding the incident. Thereafter his brother Jai Krishan Lal told him that he saw victim with Surendra around 1:00 PM. He kept on searching victim till evening and also inquired in his relations for one or two days and when he failed in searching his daughter, finally on 05.06.2004, he informed the police station and F.I.R. was lodged which has been exhibited as Ex. Ka-1 and has been proved by PW-1. 9. PW-1 further stated that the victim was recovered after 10-12 days in Baskhari while getting down from a bus. He has also stated that the victim was enticed away by Surendra and his parents. 10. PW-2 Jaykishun Lal is the real younger brother of PW-1. He has stated that the victim is his niece. On 28.05.2004 at about 12 PM, he and his wife Vijay Laxmi saw the victim with the appellant Surendra. At that time her age was 14 years. 10. PW-2 Jaykishun Lal is the real younger brother of PW-1. He has stated that the victim is his niece. On 28.05.2004 at about 12 PM, he and his wife Vijay Laxmi saw the victim with the appellant Surendra. At that time her age was 14 years. He has not objected when he saw the victim with Surendra as he was not in talking terms with his brother PW-1. The appellant used to come to his house in the evening. When his brother came searching the victim, he told him regarding this. Both PW-1 and PW-2 searched the victim for 6-7 days and when she was not found, the report was lodged. 11. PW-3 is the victim. In her statement, she has stated that the appellant is known to the victim prior to the incident. He used to come in her house. On 28.05.2004, she asked the appellant Surendra to bring her at her uncle's house in Sultanpur, at that time her parents were not at home. At around 12 o clock, she went away with Surendra, on the way his father Shivdas, mother Indravati and aunt Shyama Devi met and these people accompanied her till Baskhari and there these people had board her on the bus which was going to Varanasi. In the bus along with her, Surendra was also sitting. After going at some distance, one person having with face covered with gamcha was also there. She stayed at Varanasi for 2-3 days along with the appellant. She stated that when she objected while going to Varanasi, she was scolded by another person who was with Surendra and she was also threatened to keep quite. Thereafter, she was taken to Chennai from Varanasi. In Chennai she was locked in a room and was kept for a month in the room wherein Surendra used to rape her. She objected. After one month, the appellant Surendra took her from Chennai to Varanasi and from Varanasi to Baskhari by bus. The appellant came down from the bus at the block and told her that to get down on the next crossing. While she was getting down from the bus, police caught her, along with the police, her father was also there. 12. PW-4 Dr. Meera Verma has proved the medical report which was exhibited as Ex. Ka-2. She in his statement has stated that the victim was habitual of sexual intercourse. While she was getting down from the bus, police caught her, along with the police, her father was also there. 12. PW-4 Dr. Meera Verma has proved the medical report which was exhibited as Ex. Ka-2. She in his statement has stated that the victim was habitual of sexual intercourse. She conducted the external and internal examination of the victim. In her external examination, it was found that there was no injury in her private part, neither on any part of the body. The organs of the victim were fully developed. In the internal examination, no mark of injury was found. Two fingers could have crossed in private part easily. She quoted that she has not found any sign to suggest that she was raped. She has also proved certificate given by CMO where her age was assessed as 18 years. All the organs of the victim were fully developed and she was major. 13. PW-5 is Head Constable Ashok Kumar who is scribe of the F.I.R. as well as GD nakal. 14. PW-6 is the investigating officer who has proved fard recovery exhibited as Ka-5 and the site plan exhibited as Ka-6. He has also proved the charge sheet. 15. PW-7 Head Constable Ashok Kumar as second witness has proved the signatures of R.B. Gautam who has prepared the naksha nazri (exhibit Ka-8) as well as charge sheet (exhibit Ka9). 16. Submission of learned counsel for the appellant is that occurrence has taken place on 28.05.2004 and the F.I.R. was lodged after a delay of 6-7 days. He also submits that PW-1 and PW-2 in their statements have stated age of the victim to be 14 years, whereas, the victim was major as per the radiological examination and as per own admission of PW-3 victim, her age was 17 years. Thus, right from the beginning, from this aspect, it can be presumed that the complainant wanted to falsely implicate the appellant. 17. It has been further submitted on behalf of the appellant that the victim was recovered on 07.07.2004 i.e. after 40 days of the incident. Out of those 40 days, three days she stayed with the accused at the Varanasi Station, three days she stayed with him in the train from Varanasi to Chennai and more than 30 days she stayed in Chennai. Out of those 40 days, three days she stayed with the accused at the Varanasi Station, three days she stayed with him in the train from Varanasi to Chennai and more than 30 days she stayed in Chennai. It is admitted fact that the victim was traveling by a public transport i.e. bus from Baskhari to Varanasi, train from Varanasi to Chennai and she stayed at Varanasi Station i.e. also a public place and as per the statement of the victim shows that there were plenty of persons, however, she never tried to raise any alarm and she never told anybody regarding her staying with the appellant. It is further submitted that the prosecutrix is a consenting party and the trial court erred in convicting the appellant, ignoring the relevant and material fact that she never raised any alarm during her travel from Baskhari to Varanasi and from Varanasi to Chennai and stay at Varanasi for three days and Chennai for approximately one month with the appellant. 18. It is further submitted that though as per school record, age of the victim is seventeen and half years, however, only photocopy of the high school marksheet has been filed, which too has not been exhibited and therefore, the trial court wrongly relied on the same while convicting the appellant. 19. It has been further submitted by learned counsel for the appellant that prior to amendment by virtue of Act 13 of 2013 with effect from 03.02.2013, age of consent for the purposes of Section 375 IPC was 16 years and admittedly in this case, the prosecutrix is more than 16 years as per the radiological examination where her age has been found to be 18 years or as per the own admission of the prosecution where she has stated that she is 17 years old and therefore, age could not have been a ground in this case for conviction. 20. Learned A.G.A. has opposed the appeal submitting that age of the prosecurix as per the her high school marksheet is less than 18 years and there is no illegality in the judgment of the trial court. 21. 20. Learned A.G.A. has opposed the appeal submitting that age of the prosecurix as per the her high school marksheet is less than 18 years and there is no illegality in the judgment of the trial court. 21. Perusal of the statement of PW-2 shows that the victim went away with the appellant on 28.05.2004 and this fact was informed by PW-2 who is real brother of the victim on the same day in the evening, still no information was given to the police till 05.06.2004. Both PW-1 and PW-2 in their statements before the Court have stated age of the victim 14 years whereas as per high school mark-sheet, her age was 17 years and as per radiological examination, she was major. The argument of learned counsel for the appellant on this aspect carries weight that right from the inception, the complainant wanted to falsely implicate the appellant and by reducing the age, the complainant just wanted to enhance the gravity of the offence. 22. It is admitted fact that the prosecutrix all along went away with the appellant with her own accord and free will as per her own statement, hence, no case under Section 363/366 IPC is made out against the appellant. Another admitted fact that the prosecutrix remained with the appellant for a period of 40 days without raising any alarm which shows that she was a consenting party. In the last part of the statement of the victim under Section 161 Cr.P.C., this much has come that one boy used to sit with the appellant Surendra in gamcha/chunni who used to keep a watch on the victim, however, he has not been examined before the trial court. 23. The Court has further noted that the prosecutrix on her own accord went away with the appellant from her home in absence of the complainant leaving away two minor children. The fact that she stayed with the appellant at Varanasi Station for three days, three days in train from Varanasi to Chennai and more than 30 days in Chennai in one room, however, at no point of time any alarm was raised by her. In the cross-examination PW3 victim has admitted that she went along with the appellant at cycle to Trimhani and from there to Baskhari and from Baskhari to Varanasi by bus. In the cross-examination PW3 victim has admitted that she went along with the appellant at cycle to Trimhani and from there to Baskhari and from Baskhari to Varanasi by bus. While traveling from Baskhari to Varanasi and Varanasi to Chennai, as per the statements of the prosecutrix, though several persons were there, she has not told anybody regarding her staying with the appellant. A total six days while going to Chennai were spent by the victim on public transport and at the public place like Varanasi Station, however, at no point of time, any alarm was raised by her. 24. The Court has further noticed the fact that as to why the statement of unknown person has not been recorded under Section 161 Cr.P.C. by the I.O who was all along with the victim while she was going from Baskhari to Varanasi and Varanasi to Chennai and in Chennai. In fact, he has not been made part of the investigation. It is clear from the statement of the prosecutrix before the Court that she has tried to make ample improvement in her case. 25. Merely on the sole testimony of the prosecutrix without any corroborative material and on such kind of shaky and inconsistent testimony of the prosecutrix in which improvement has been made and the fact that the prosecutrix was consenting party, the accused can not be held guilty of the offence. It will not be appropriate to convict the appellant on such testimony of the prosecutrix. In the case of Mohd. Ali Vs. State of Uttar Pradesh Reported in (2015) 7 SCC 272 , the Supreme Court has held as under:- '29. 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. 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 a 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. (emphasised by me) 26. The Supreme Court in "Kuldeep K. Mahato Vs. State of Bihar reported in (1998) 6 SCC 420 " in paragraph 11 (relevant part) has held as under:- "The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The medical evidence of Dr Maya Shankar Thakur, PW 5 also indicates that there were no injuries on the person of the prosecutrix including her private parts. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result that her movements were restricted. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result that her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant.'' Supreme Court in (2012)7 SCC 171 Narendra Kumar versus State (NCT of Delhi) held that where the evidence of the prosecutrix is found suffering from inconsistencies and infirmities with other material, no reliance can be placed thereon. The relevant para 22 is reproduced as under : "Where 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 person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide Suresh N. Bhusare v. State of Maharashtra (1999) 1 SCC 220 )" In (2010)14 SCC 534 Jai Krishna Mandal versus State of Jharkhand, Supreme Court reiterated that the improbable statement of the prosecutrix cannot be believed. Relevant portion of para 4 is reproduced as under : "4............The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed." In Raju versus State of M.P (2008) 15 SCC 133 , Hon'ble Supreme Court held that no doubt, a false allegation of rape can cause equal distress, humiliation and damage to the accused as well and interest of the accused must also be protected. Relevant portion of paras 10 and 11 are reproduced as under : "10........... that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. "11.......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..... "11.......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..... 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." Similar view has been taken by Hon'ble Supreme Court in Tameezuddin versus State (NCT of Delhi (2009)15 SCC 566 ." 27. There are latches in the prosecution case. First, the prosecutrix on her own accord went away with the appellant in absence of her parents leaving minor children. Secondly, she traveled with the appellant to Chennai through public transport and at no point of time, she raised any alarm which shows that she was a consenting party. Even in Chennai she stayed for a period of 30 days, however, she never made any effort to raise alarm which shows that she went with the appellant with her consent. 28. So far as the photocopy of the high school marksheet which has been produced before the trial court is concerned, it has not been proved by the prosecution, thus, no reliance could be placed upon it by the trial court while convicting the appellant. Certificate of CMO according to which the prosecutrix is major has been proved by PW-4. No corroborative material has been found by PW-4 while examining the prosecutrix. The testimony of PW-1 and PW-2 are contradictory to that of the prosecutrix so far as her age is concerned. 29. Thus, it appears to be a case of false implication. The prosecutrix was more than 17 years at the time of the offence and prior to the amendment by virtue of Act 13 of 2013 with effect from 03.02.2013, age of consent for the purposes of Section 375 IPC was 16 years, hence, no offence under Section 376 IPC could have been said to be made out. 30. In view of the above, the judgment impugned dated 19.09.2006 (supra) is set aside. The appeal is allowed. The accused-appellant is acquitted. If he is on bail, his bail bonds are cancelled and the sureties discharged. 31. 30. In view of the above, the judgment impugned dated 19.09.2006 (supra) is set aside. The appeal is allowed. The accused-appellant is acquitted. If he is on bail, his bail bonds are cancelled and the sureties discharged. 31. Let the lower court record be sent back to the trial court along with a copy of this judgment.