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Arvind Kumar vs State Of U.P. on 26 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 47 Reserved on 08.07.2019

Delivered on 26.07.2019

Case :- CRIMINAL APPEAL No. – 1880 of 2013

Appellant :- Arvind Kumar

Respondent :- State Of U.P.

Counsel for Appellant :-Anup Ghosh, Pratap Ghosh, Brahm Singh, Ambrish Kumar Kashyap, Noor Mohammad

Counsel for Respondent :-Government Advocate, Kashi Naresh Mishra

Hon’ble Ram Surat Ram (Maurya) ,J.

Hon’ble Raj Beer Singh, J.

[Delivered by Ram Surat Ram (Maurya), J.]

1. Heard Sri Ambrish Kumar Kashyap and Sri Noor Mohammad, for the appellant, Sri Nafees Ahmad, A.G.A., for State of U.P. and Sri Kashi Naresh Mishra, for the informant.

2. Arvind Kumar has filed aforementioned appeal from the judgment of Additional Session’s Judge, Court No. 1, Aligarh, dated 20.03.2013, passed in S.T. No. 1243 of 2008, SectionState vs. Arvind Kumar, [arising out of Case Crime No. 150 of 2008, under Section 376, Section506 of Indian Penal Code, 1860 (hereinafter referred to as the SectionIPC), Police Station Kotwali Nagar, district Aligarh, convicting him, under Section 376 IPC and sentencing for rigorous imprisonment for life and fine of Rs. 25000/-, with default stipulation.

3. On the written complaint (Ex-Ka-1) of Kishan Lal (PW-1), FIR (Ex-Ka-6) of Case Crime No. 150 of 2008 was registered under Section 376, Section506 IPC, at P.S. Kotwali Nagar, district Aligarh on 03.06.2008 at 23:30 hours, by Constable Clerk Gajraj Singh (PW-4), against Arvind Kumar. It has been stated in the FIR that Km. Anjali, daughter of the informant, aged about 12 years, who was a student of class-7, in Teekaram Inter College, had gone to give fodder to her buffalo on 03.06.2008 at 8:00 PM, in her other house. Then Arvind Kumar, aged about 28 years, son of Leeladhar, came to his daughter. Closing her mouth, he took her in the fodder room and committed rape with her. While going out, he gave his handkerchief to her and told the victim to keep it on the injury as she was bleeding profusely. He also threatened her not to disclose the incident to anyone, otherwise he would kill her brother as she was knowing that he had a big family. On hue and cry of his daughter, his wife Smt. Usha Rani and Chandra Pal son of Ram Kishor reached there. Arvind fled away from the door. The victim narrated the incident to her mother. At that time, the informant had gone to the field. When he returned back to his house then his wife informed him about the incident. After lodging the report, legal action be taken.

4. After lodging of FIR, SI Nisar Ahmad (PW-5) started investigation. He copied the check FIR and G.D. entry in case diary and recorded statements of the informant and constable Gajraj Singh. He arrested the accused on 04.06.2008 and recorded his statements. He recorded statements of victim and took into possession her bearing clothes and the handkerchief, allegedly given by the accused to her and prepared its recovery memo (Ex-Ka-7). He took into possession the underwear of Arvind Kumar and prepared its recovery memo (Ex-Ka-8). From the place of occurrence, he collected the underwear of the victim and prepared its recovery memo (Ex-Ka-2). He made spot inspection on 04.06.2008, on the pointing out of the witnesses, prepared site-plan (Ex-Ka-9). He recorded statement of Smt. Usharani (mother of the victim) and other witnesses of the spot. On 05.06.2008, he copied the Injury Report, Supplementary Report and Pathological Report in case diary. On 07.06.2008, he got statements of the victim recorded under Section 164 Cr.P.C. On 08.06.2008, he recorded statements of Chandra Pal and the witnesses of recovery memos. On 11.06.2008, he recorded additional statements of the victim. On 20.06.2008, he recorded additional statements of Smt. Usharani. After collecting school certificates relating to the age of the victim, he submitted charge sheet (Ex-Ka-10) on 20.06.2008, on which cognizance was taken.

5. After registration of the FIR, the victim was sent to District Women’s Hospital, Aligarh for her medical examination, along with Lady Constable Santoo Sharma. Dr. Veena Saxena (PW-3) conducted her medical examination and prepared Injury Report (Ex-Ka-4), in which following injuries were noted:-

No mark of injury on external part of body.

Examination of Internal Parts : – No mark of injury on private parts. Hymen torn, about 3 – 4 mm. of 6’O clock position, which bleeds on touch. Vagina admits little finger.

Dr. Veena Saxena (PW-3) took vaginal smear of the victim and sent for its pathological report. She advised the victim for X-ray, for determination of her age. After receiving X-ray report and Pathological report, she prepared Supplementary Report (Ex-Ka-5), in which she has mentioned that (i) no spermatozoa were seen. (ii) Age is about 16 years. (iii) No definite opinion about rape can be given.

6. On committal, the case was registered as S.T. No. 1243 of 2008. Session’s Judge framed charges on 11.02.2009, against the accused. The accused pleaded “not guilty” and claimed for trial. In order to prove the charges, the prosecution examined Kishan Lal (PW-1), the informant, Km. Anjali (PW-2), the victim, Dr. Veena Saxena (PW-3), to prove Injury Report (Ex-Ka-4) and Supplementary Report (Ex-Ka-5), Constable Gajraj Singh (PW-4) to prove check FIR, SI Nisar Ahmad (PW-5) Investigating Officer and filed documentary evidence.

7. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. He denied the evidence and materials and claimed false implication due to enmity as civil and criminal cases were going on between the informant and him. He examined Chandrapal @ Bhole as (DW-1), who was noted as a witness in FIR, who had denied the happening of the incident.

8. Additional Session’s Judge, after hearing the parties, by the impugned judgment held that delay in lodging the FIR was reasonable and it was not ante-timed. From the statements of the victim (PW-2), Medical Report (Ex-Ka-4) and Report of State Forensic Laboratory, in which spermatozoa were found on the underwears of the victim and the accused, charge against the accused under Section 376 IPC was proved. From the evidence on record, it is not proved that the victim was a consenting party. On these findings, he convicted the appellant and sentenced as mentioned above. Hence, this appeal has been filed.

9. We have considered the arguments of the counsel for the parties and examined the record. In order to prove the charges, the prosecution has examined Kishan Lal (PW-1) and Km. Anjali Gautam (PW-2) as the witnesses of fact. Kishan Lal (PW-1) has stated that at the time of incident, he had gone to his field along with his sons situated at village Jajipur Shihor. When he came back to his house in night, then his wife had informed him about the incident. As such, statement of Kishan Lal (PW-1) is not relevant to prove the charges. In the FIR, in has been stated that on the hue and cry of the victim, Smt. Usharani (the mother of the victim) and Chandrapal reached the spot. Smt. Usharani has not been examined. Chandrapal @ Bhole was examined as DW-1, who has denied his presence on the spot, immediately after the incident. Thus, there remains only a single witness of the fact.

10. Supreme Court in SectionLallu Manjhi v. State of Jharkhand, (2003) 2 SCC 401, has held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. SectionIn Kamla Kant Dubey v. State of U.P., (2015) 11 SCC 145, has held that it is settled principle that a conviction can well be founded on the testimony of a single witness if the court finds his version to be trustworthy and corroborated by record on material particulars.

11. In the light of the aforementioned principles, we have to examine the statement of Km. Anjali Gautam (PW-2), the victim, who is solitary witness of the fact. Km. Anjali Gautam (PW-2) stated that on 03.06.2008 at about 8:00 PM, she had gone to give fodder to her buffalo, in her other house, on the asking of her mother. When she was pouring fodder, Arvind, who was resident of her village and was well known to her, came there from her back side. Arvind began to say her that he wanted to talk with her. Saying this, he shut her mouth and closed the door. He took her in the fodder room and closed its door from inside. He unclothed her underwear and pajami and committed rape with her against her will. He put his handkerchief on her mouth as such she was not in position to shout. After committing rape, he threatened her not to disclose this fact to any one otherwise he would kill both her brothers and father as he had a big family. She was weeping due to pain. Arvind gave his handkerchief to her and told her to keep it on the injury and bleeding would be stopped and the pain would be reduced. Listening the noise of her weeping, her mother, who was sitting on the roof of the house reached there. Sensing the noise of foot steps, Arvind fled away from the door. She narrated the incident to her mother. Then she told that let her father and brothers return from the field. When her father came to the house, her mother narrated the incident to him. Then he took her to Kotwali police station and lodged the FIR. One lady police took her to the hospital and got her medical examination done there. Thereafter, X-ray of her joints were done. Her statements were recorded at Kotwali and also before the lady Magistrate. The police took her entire clothes i.e. salwar, kurti etc., including her underwear and sealed it. The clothes, which were handed over by her, contained blood stains, which oozed from her private part.

In cross-examination, she stated that she knew Arvind since many years. Arvind did not commit any indescendant act prior to this incident nor she had heard any complaint against Arvind from any other person. At the time of committing rape, Arvind had not fully unclothed him rather he had removed his clothes towards lower side. Her clothes were also removed towards lower side and remained fasten in her legs. Arvind put her handkerchief on her mouth, as such she could not bite him. He had committed rape for 5 to 10 minutes. During this period, she resisted him.

13. According to the victim, the accused had committed rape with her upto 5 to 10 minutes, but in her Injury Report (Ex-Ka-4), hymen was found as torn about 3-4 mm, in six O clock position. Apart from this injury, on the body of the victim, no other internal or external injury was found. In her Injury Report (Ex-Ka-4), it was also mentioned that her breasts were developed. Auxiliary and pubic hairs were developed. In vaginal smear, no spermatozoa was found. As such, Dr. Veena Saxena (PW-3) could not give definite opinion about the rape being committed. In Supplementary Report (Ex-Ka-5), her age was determined as about sixteen years. From medical report it is proved that there had not been complete penetration. Oral testimony of the victim is not corroborated with medical evidence.

14. Supreme Court in SectionIn Joseph v. State of Kerala, (2000) 5 SCC 197, has held that if there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grown-up lady and in the process, some injuries would have been found on the vagina/private parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years of age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376 IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376 IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside.

15. Recovery of underwear of the victim (Ex-Ka-2) and the accused (Ex-Ka-8) are also doubtful. Km. Anjali Gautam (PW-2) stated that at the time of committing rape, her clothes remained fastened in her legs and after the accused fled away, she had worn her clothes. Her underwear was recovered on the next day from the place of occurrence. If the underwear remained fastened in her legs, which was worn by her after fleeing away of the accused, then its recovery from the spot on the next day was not possible. If the underwear was put off from the body, then it was not possible that spermatozoa would be found on it. There is no independent public witness of the recovery. Recovery of underwears are doubtful.

16. Kishan Lal (PW-1) admitted that criminal and civil cases were going on between the parties, as such false implication due to enmity cannot be ruled out. In any case, statement of the victim is not corroborated with medical evidence, as such she was not a fully reliable witness. The accused is entitled for benefit of doubts.

17. In view of the aforesaid discussions, the appeal succeeds and is allowed. The conviction and sentence of the appellant passed by Additional Session’s Judge, Court No. 1, Aligarh, dated 20.03.2013, in S.T. No. 1243 of 2008, SectionState vs. Arvind Kumar, [arising out of Case Crime No. 150 of 2008, under Section 376, Section506 IPC), Police Station Kotwali Nagar, district Aligarh, convicting him, under Section 376 IPC, is set aside. The appellant shall be released from jail forth with.

Order Date :- 26.7.2019

Jaideep/-

[Raj Beer Singh,J.] [ Ram Surat Ram (Maurya),J.].

 

 

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