HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 27
Case :- CRIMINAL APPEAL No. – 5787 of 2013
Appellant :- Ashish And Anr.
Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh
Counsel for Respondent :- Govt. Advocate
Hon’ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgment and order dated 24.10.2013 passed by the learned Additional Sessions Judge, Court No. 6, Kanpur Dehat / Ramabai Nagar in Sessions Trial No. 468 of 2011 (State vs Ashish and others) arising out of Case Crime No. 328 of 2011, under Sections 376, 506 I.P.C., Police Station Bilhor, District Kanpur Nagar, whereby the accused appellants Ashish and Baoua have been convicted and sentenced to ten years’ rigorous imprisonment and a fine of Rs. 10,000/- each under Section 376(2)(g) I.P.C. with default stipulation. Out of the fine so deposited by the appellants, a sum of Rs. 10,000/- was directed to be paid to the victim.
2. In short compass, the case of the prosecution as unfolded by the prosecution is that on 03.08.2011, an application was moved by Surendra Tiwari, to the District Inspector General of Police, Kanpur, Exhibit Ka-1 to the effect that when his daughter was alone in the house, at that time regional musslemen Baoua, Ashish and Rinku had forcibly committed rape on her and also threatened her to kill if she told this matter to anyone. She is under fear. On being pregnant, the accused are trying to get her aborted. When he tried to go the police station, accused stop him in the way. On the basis of the aforesaid written report and on the order of Deputy Inspector General, the Station Officer, Bilhor, has prepared Chik FIR against the accused Ashish, Baoua and Rinku at case crime No. 328 of 2011, under Sections 376 and 506 I.P.C. at 05:05 P.M., Exhibit Ka- 4, which was entered into GD, Exhibit Ka-5.
3. After the registration of the case, Station Officer, Santosh Kumar Tiwari, PW-10 has recorded the statement of the victim and got the victim medically examined. He also received medical report, supplementary report and certificate regarding age of the victim. On the pointing out of the informant, he prepared the site plan as Exhibit Ka-13. On 11.08.2011, he arrested the accused Baoua and recorded his statement. He also got the statement of the victim recorded under section 164 Cr.P.C. Thereafter, the Investigating Officer has been transferred and the remaining investigation was conducted by S.I., Nagesh Upadhyay, PW-7. This witness on 26.08.2011 and 13.09.2011 arrested the remaining accused Ashish and Rinku and recorded their statements. After completing the necessary formalities, on the basis of sufficient evidence, the Investigating Officer has submitted the charge sheet against the accused persons under Sections 376 and 506 I.P.C., Exhibit Ka-10.
4. However, as the accused Rinku was found juvenile, his case was separated and referred to the Juvenile Justice Board.
5. To bring home the guilt of the accused, the prosecution has examined as many as ten witnesses. PW-1 is Surendra Tiwari, the informant and the father of the victim. PW-2 is the victim of the case. PW-3 is Dr. Jai Singh. PW-4 is Constable Santosh Kumari. PW-5 is Dr. Anita Singh, who has medically examined the victim. PW-6 is Dr. R.C. Bhatt. PW-7 is S.I., Nagesh Upadhyay, the second investigating officer. PW-8 is Dr. Jaswant Ratnakar. PW-9 is Head Constable Indra Lal. PW-10 is Santosh Kumar, the first investigating officer.
6. PW-1, Surendra Tiwari is the informant and father of the victim. He deposed that his wife has expired. He has two children, one daughter and a son. At the time of occurrence, the victim was aged 15 years. At the time of occurrence, he and his son had gone to see Ramleela. His daughter was alone in the house. On that night, three persons had come to his house, whose names are Baoua, Ashish and Rinku. The accused persons are his neighbours. All the three accused persons committed gang rape on his daughter forcibly. This incident was not told by the victim to anyone as the accused had given her threat that they will kill her brother and father if she narrates this matter to anyone. Due to fear, his daughter did not tell this fact to anyone. After about five and a half months, when there was a rumour in the locality and village that the victim is pregnant, then he enquired about this fact from the victim, who narrated the incident and told that accused had committed rape on her. Thereafter, he reported this matter to the DIG, who passed an order for registration of the case. This witness has proved the written report as Exhibit Ka-1.
7. PW-2 is the victim of the case. She deposed that she has one brother. Her mother has expired. On the date of incident, her brother and father had gone to see Ramleela. On that day, she was alone in the house. At that time Ashish, Baoua and Rinku entered into her house. They caught hold of her and committed rape on her against her wishes. This witness recognised the accused Ashish and Baoua in Court. This witness further stated that while the accused persons were committing rape, they did not allow her to cry. They threatened that they will kill her father. Due to fear she did not disclose this incident to anyone. The accused clandestinely wanted to get her aborted. They prevented her and her father from lodging the report and stopped them on the way. Her father appeared before the DIG and narrated the incident to him, who sent her father to Mahila Thana, where report was lodged. After lodging of the report, her medical examination was got conducted and also got her statement recorded before the Magistrate under Section 164 Cr.P.C, which was proved by the victim as Exhibit Ka-2.
8. PW-3 is Dr. Jai Singh, who deposed that on 09.08.2011, he was posted as C.M.O., Kanpur Nagar. Victim was sent to him by Station Officer, Bilhor through lady Constable Sarojini Yadav, Police Station Bilhor. She was sent for the x-ray of elbow, wrist, clavicle and ilia crest. As per the report of the Radiologist, the age of the victim was found to be 16 years. This witness has prepared the report under his handwriting and signature as Exhibit Ka-3.
9. PW-4 is Constable Santosh Kumari, who was posted at Mahila Thana, Kanpur Nagar. She deposed that on 03.08.2011 at 5.00 P.M., she received the application of the informant by post mentioning therein that the accused Ashish, Baoua and Rinku committed gang rape on the victim forcibly and also threatened her to kill. That application bore the signature of DIG. On that application, there was an order of the Circle Officer directing the Station Officer, Mahila Thana to register and investigate the matter, on the basis of which a case at case crime No. nil of 2011 under Sections 376 and 506 I.P.C. was registered on 03.08.2011 at 5.05 P.M. This witness has further stated that she prepared the chik FIR and copy of GD under her handwriting and signatures, as Exhibits. Ka 4 and 5.
10. PW-5 is Anita Singh. She deposed that she was posted at AHM, Hospital, Kanpur Nagar as Consultant. She has medically examined the victim on 03.08.2011 at 7.45 P.M., who was brought by lady Constable Guddi Devi and Homeguard Ram Janki. On internal examination she found that there was no injury on any part of the body. Hymen was old torn and healed. She prepared two slides of vaginal smear of the victim and sent the same to the Pathologist of Ursala Hospital. For ascertaining the age, the victim was referred to the CMO, Kanpur Nagar. X-ray and ultrasound of the victim was done at UHM/AHM Hospital. As per the report of the Pathologist, no spermatozoa was found. As per ultrasound report, there was a fetus in the womb. The head of fetus was upside. Ample water was present in the uterus. Movement was normal. Medical report, Exhibit Ka-6, slides reference slip, Exhibit Ka-7 and supplementary medical report Exhibit Ka-8 were prepared by this witness under her handwriting and signatures.
11. PW-6 is Shri R.C. Bhatt. He deposed that on 04.08.2011 he was posted as Senior Consultant Radiology at UHM Hospital, Kanpur Nagar. On that day Homeguard Nirmala, had brought the victim for x-ray, who was referred by the CMO, Kanpur Nagar. The x-ray of the victim was done under his supervision. This witness has further stated that Elbow joint was fused. Wrist and iliac crest and clavicle bones were not fused. This witness has proved x-ray report as Exhibit Ka-9.
12. PW-8 is Dr. Jaswant Ratnakar, who was posted as Radiologist at PHM Hospital. He deposed that on 10.08.2011, he has done the ultrasound of the victim. He has stated that there was a fetus of 26 weeks in the womb. The expected date of delivery was 16.11.2011, which may vary either way. The victim was brought by lady constable Sarojni. This witness has further stated that he has prepared the ultrasound report Exhibit Ka-11 on the basis of ultrasound film material Exhibit Ka 4.
13. PW-9 is Head Constable Indra Lal. He deposed that on 5.8.2011, he was posted as Head Muharrir at police station Bilhor. On that day, a chik FIR was received by the Station Officer by post from the Mahila Thana at Case Crime No. Nil of 2011, under Sections 376, 506 I.P.C. On the direction of the Station Officer Case Crime No. 328 of 2011 was registered, which was entered in the GD on 05.08.2011 at 7.30 P.M. This witness has proved the copy of the GD as Exhibit Ka-12.
14. The evidence of PW-7 S.I., Nagesh Upadhyay and PW-10 S.O., Santosh Kumar Tiwari has already been discussed above.
15. After the close of the prosecution evidence, the statements of the accused were recorded under section 313 Cr.P.C., in which they have denied the occurrence and claimed to be tried. They have produced five witnesses in their defence. DW-1, Sudha, the mother of the accused, DW-2, Satish Chandra, DW-3, Ram Agnihotri, DW-4 Navneet Mishra and DW-5 Ramakant.
16. DW-1 is Sudha, the mother of the accused. She deposed that the name of father of the victim is Surendra Tiwari. He lives in her village. The age of the victim, when her mother died was about 8 years. Surendra Tiwari was habitual drunkard. The victim has told this witness that her father makes physical relation with her. She also told this witness that she is pregnant. This witness has told this fact to some other women of the village. Prior to this, the victim once also got pregnant. As this witness has told the other ladies of the village about the illegal physical relation of Surendra Tiwari with his daughter, being enraged, Surendra Tiwari has falsely implicated her three sons in this incident.
17. DW-2 is Satish Chandra, who deposed about the physical relation of Surendra Tiwari with her daughter.
18. DW-3 is Ram Agnihotri, who also deposed about the physical relation of Surendra Tiwari with her daughter.
19. DW-4 is Navneet Mishra, who deposed that although Surendra Tiwari is habitual drunkard, but he denied about any physical relation of Surendra Tiwari with her daughter.
20. DW-5 is Ramakant, who deposed that Surendra Tiwari is habitual drunkard. This witness has further stated that he heard that Surendra Tiwari is having physical relation with her daughter, but he does not have any personal knowledge about this fact.
21. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgement.
22. Feeling aggrieved, the accused have come up in appeal.
23. Heard Shri Kamal Krishna, learned counsel for the appellants, learned Additional Government Advocate for the State-respondent and perused the lower court record.
24. Learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration is required when the testimony of the prosecutrix is clear, cogent and convincing. He has further contended that there is nothing to show that the prosecutrix has falsely implicated the accused. Thus, the appeal is liable to be dismissed.
25. It has been submitted on behalf of the appellants that there is inordinate delay in lodging the first information report, inasmuch as the date and time of the occurrence is not known, whereas the report was lodged on 03.08.2011 at 1705 hrs. But there is delay since as per the version of the victim, she became pregnant. Obviously, she would have had sexual relations much prior to the date of incident but report was lodged after her pregnancy which casts a shadow of doubt on the prosecution case.
26. Per contra learned A.G.A. has submitted that in the cases of rape, the delay in lodging the first information report is not of much consequence because repute of the family is at stake. Therefore, the inordinate delay in lodging the first information report against the appellants is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the first information report not only make the prosecution case improbable to accept but the reasons and observations made by the trial court in the impugned judgment is wholly untenable in law and the same cannot be accepted. Thus, there is inordinate delay in lodging the first information report, which casts a shadow of doubt on the complete prosecution case.
27. It is trite law that in cases of rape, if the testimony of the prosecutrix is reliable and trustworthy, the Court does not search for support from any evidence. In (2009) 15 Supreme Court Cases page 566, Tameezuddin @ Tammu vs. State of (NCT) of Delhi, in which it has been laid down that it is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.
28. Keeping in view this aspect of the matter, I would examine the statement of the victim PW-2 in which she has stated that all the three accused are real brothers. Although, it is impossible but in delicate relations like real brothers, it would be extremely difficult for three real brothers to rape one girl simultaneously or one after the another at the same spot. The victim has stated that due to fear, she did not narrate the incident of rape committed by Baoua, Ashish and Rinku to anybody because they had threatened to kill her. She has further stated the accused wanted to get her aborted. She has subsequently admitted that she gave the birth to baby girl who is in the orphanage. She has stated that on the date of occurrence, her father and brother had gone to see Ramleela. She was alone in the house. Baoua, Ashish and Rinku entered her house and raped her. Like all the witnesses, this witness has too had undergo the test of cross-examination, in which she revealed a new fact stating that even prior to this incident, she was raped by Baoua, Ashish and Rinku which was before 10 to 15 days back. But she has stated this first incident to the Magistrate. The statement of the victim was recorded under Section 164 Cr.P.C. is Exhibit Ka-2, in which she has stated that Baoua, Ashish and Rinku came to her house. They tied her mouth with Dupatta and raped her. This was done during the Navratri and even 2 to 3 days prior to the Navratri Ashish and Rinku had raped her. If the month of Navratri is calculated, generally it is in the month of April. Thus the date of occurrence, if calculated, comes to the first week of April. But when this witness was medically examined by Dr. Anita Singh whose medical report is Exhibit Ka-11 on 10.08.2011, the victim was found 26 weeks pregnant. Meaning thereby, she was pregnant for about 6 months and two weeks which does not tally with the time stated by the victim who has tried to give an improvement by saying that she was obviously also raped by the accused persons. If as per the version of the victim, she was raped somewhere in April 2011, the tenure of pregnancy would have been around about 4 months and not six and half months. Thus, the whole prosecution story falls like a heap of cards.
29. Coming to the statement of the victim, she has further stated that she was raped 10 to 15 days prior also was not revealed by her in her examination-in-chief. Thus, the statement of the victim PW-2 neither inspires confidence nor is worthy of credence and infact is untrustworthy.
30. As far as the statement of PW-1, the father of the victim is concerned, he has stated that his daughter was raped when he had gone to see Ramleela. She was raped by Baoua, Ashish and Rinku but his daughter did not reveal the incident to anybody, since when was threatened. When rumors flew around the village that the girl was five and half months pregnant, then he asked the girl and then she narrated the incident to her father. Obviously, this is something which could not have been hidden by the girl as one day or the other her physical appearance would also have revealed the whole picture. He has stated that when he used to go to the police station to inform the police, the accused used to stop him on the way. This explanation is not palatable. The father of the victim has stated that the victim gave birth to a baby girl, in the orphanage. It is only the victim, who could know that who is the father of the baby girl. It is strange as to why the victim kept mum for 5 to 6 months and did not revealed this fact to any of her family members creates a shadow of doubt on the prosecution case. Even if the victim was not having mother. There was no reason why she could not told her nearest relative lady or even to her father since her personality was shattered. PW-1 Surendra had admitted that the neighbourers used to take the girl here and there for check up and used to take odds. He has also admitted that one Ram Agnihotri took her girl to take some eatable but he never asked Ram Agnihotri why he used to take her girl without his permission. The villagers told him about pregnancy of the girl but who told him, he does not remember. But in the next breath, he said that the sister-in-law (Bhabhi) of the girl told him. He was told about the incident a couple of days before lodging the first information report, then he asked his daughter. A new theory was introduced by this witness who has stated that all the three accused i.e. Baoua, Ashish and Rinku had muffled there faces and entered her house but she could recognize them from their voices. When the victim was specifically asked, she stated that baby girl was born. The father of the baby girl was either Ashish or Baoua. The child would either of Baoua, Ashish or Rinku. Her father would be only one man. Thus, the victim herself is confused.
31. Learned A.G.A. has submitted that the age of the victim as per the medical is about 16 years, hence she is minor but I think, since the statement of the victim herself is not reliable, no useful purpose would be solved by entering into the factum of age.
32. Thus, on what has been said and discussed above, I find that the evidence of the witnesses have major contradictions and the prosecution story is shaky, unreliable, not worthy of credence. Thus, the prosecution has miserably failed to prove the case against the appellants and the appeal is liable to be allowed.
33. Accordingly, the appeal is allowed.
34. The impugned judgment of conviction and sentence dated order dated 24.10.2013 passed by the learned Additional Sessions Judge, Court No. 6, Kanpur Dehat / Ramabai Nagar in Sessions Trial No. 468 of 2011 (State vs Ashish and others) arising out of Case Crime No. 328 of 2011, under Sections 376, 506 I.P.C., P.S. Bilhor, District Kanpur Nagar is hereby set aside.
35. The appellants namely Ashish and Baoua are in jail. They may be released forthwith in this case. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.
36. Let the copy of this judgment be sent to the trial court concerned.
Order Date :- 08.04.2016