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Kailash & Another. vs State Of U.P.And Others. on 22 February, 2018


Reserved A.F.R.

Court No. – 31

Case :- CRIMINAL APPEAL No. – 1168 of 2001

Appellant :- Kailash Another.

Respondent :- State Of U.P.And Others.

Counsel for Appellant :- Digvijai Singh

Counsel for Respondent :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. The present appeal has been filed against the judgment and order dated 29.11.2001 passed by VIth Additional Sessions Judge, Faizabad in Session Trial No. 1109 of 1996, under Sections 366, 376, 324 and 506 IPC arising out of Case Crime No. 86 of 1995, Police Station Inayat Nagar, District Faizabad. The accused-appellant along with Kailash was convicted under Section 366 read with Section 34 IPC and Section 376 IPC. They were sentenced under Section 366 read with Section 34 IPC for 3 years rigorous imprisonment with the fine of Rs.500/- each and in the event of non payment of fine, one month additional imprisonment. They were further sentenced under section 376 IPC for 3 years rigorous imprisonment with fine of Rs.500/- each and in the event of non payment of fine, one month additional imprisonment. It was directed that both the sentences would run concurrently.

2. Learned C.J.M. vide his letter No. 430 of 2017 dated 25.10.2017 submitted a report stating therein that the accused-appellant, Kailash had died 6 years earlier. In view of the aforesaid report, the Appeal of accused-appellant, Kailash gets abated.

3. The prosecution story, in short, is that on 20.03.1995 Sushila Devi, the prosecutrix, P.W.-1, gave a written complaint, Exh.Ka-1 at the Police Station Inayat Nagar, District Faizabad that the accused Kailash and Vishnu who were neighbours belonged to her family came and knocked her door. She believed that someone had come to greet her Holi. She opened the door and then both lifted her and took her to nearby wheat field of Ram Kewal and raped her one by one. She further said that when they lifted her from her house, at that time her children were sleeping. She further said that the accused threatened her that if she opened her mouth or go to police station, they would finish her. She further said that when they committed rape, the accused Vishnu bit her on thigh. She further said that she was terrified as the accused were having vigil around her and, therefore, she could not come to the police station earlier nor did she tell the incident to anyone. She said that on that day when the accused had gone to Faizabad, she had reached to the police station to lodge the First Information Report. On the basis of the aforesaid complaint, FIR, Exh. Ka-7, Case Crime No. 86 of 1995 under Sections 376, 506, 324 IPC, was registered at the police station.

4. The prosecutrix was medically examined on 21.03.1995 by Dr. Neerja Mala, P.W.-2. In her report, Exh.Ka-2, P.W.-2 did not notice any mark of injury on the body of the prosecutrix nor did she notice any mark of injury on private parts of the body of the prosecutrix. Her X-ray was conducted and thereafter, a supplementary report was prepared. Dr. S.K. Srivastava, Radiologist prepared the report, Exh.Ka-3, and X-ray plate, Material Exh. Ka-1, and proved the same. Dr. K.C. Verma proved the report, Exh. Ka-4, and noticed the following injury:-

Bluish contusion of 4.0 cm x 3.0 cm one lat aspect of left thigh, 24.0 cm proximal to left knee joint.

5. In his opinion the injury was simple in nature and could have caused by blunt edged weapon. Duration was 3 days.

6. The investigating officer after completing the investigation submitted the charge sheet, Exh.Ka-6, against the accused-appellant and Kailash under Sections 366/34, 376, 324, 506 IPC.

7. The prosecutrix, P.W.-1, who is the only witness of fact reitreated the FIR version in her deposition. She further said that the incident happened 2 years back on the day of Holi festival. She had three children and they were sleeping at the time of incident. Her husband had been living in Jagdhari in connection with his employment.

8. She said that when the accused knocked her door she thought that some women would have come to greet her on Holi and when she opened the door she found the accused. They came inside the house and forcibly took her out of the house. One accused was holding her hand and another was putting his hand on her mouth. Both the accused took her to a wheat field and then both of them committed rape on her one by one at the wheat field. She reiterated that the accused Vishnu bit her on thigh and they threatened her that if she revealed the incident to anyone they would kill her. She said that she did not go anywhere in the night and in the morning she sent the information to her brother at her parents’ place. She said that when she was going to lodge an FIR, on that day the accused did not allow her and thereafter on third day at around 12 noon, she went to the police station and lodged the FIR. She said that the complaint was drafted on her dictation by one shopkeeper at Inayat Nagar and thereafter, he read over the complaint to her and she put her thumb impression on the report.

9. She further said that her statement under Section 164 Cr.P.C. was recorded before the Magistrate. In her statement under Section 164 Cr.P.C., she reiterated her allegations against the accused. During her cross examination, she said that when the accused knocked her door they did not speak anything. When the accused were taking her to the field, on the way there was house of Ram Balak. The distance from the field to her house was 1 furlong. She said that she did not know that the distance from her house to the field would be 1 furlong. However, she volunteered that would be 7 bigha away from her house.

10. She further said that when the accused-appellant entered her house, her younger son was awake and present in the house but her two daughters were out of the house as they went to celebrate Holi. The younger son at the time of incident was 7 years old. When the accused knocked her door, the younger son got up. She said that she gave the wrong statement in her examination-in-chief that her younger son was sleeping and two daughters were outside the house for celebrating Holi.

11. She further said that her elder daughter would be 10-12 years old and younger daughter would be 9 years old at the time of the incident and when the accused entered her house these three children got up from their sleep but the children did not raise any alarm when the accused were forcibly taking her away. She came back after an hour. During this one hour her children were searching for her in the village.

12. However, statement of the daughters of the prosecutrix were not recorded by the investigating officer. She further said that when she came back, no resident of the village accompanied her children to find her out. When the accused-appellants were taking her away forcibly, the children did not follow her and they remained stood at the courtyard of the house. Holi greeting continued to 12-1:00 hours. She received injuries on her uterus, back and the accused bet her by fist and there were scratches on her back. She wore saree, petticoat and blouse. When the accused committed rape on her at that time there was neither blouse nor saree and she was in the petticoat alone. When she was coming back to her house, the accused gave her saree and blouse back and after wearing it, she came back her home. Her husband was not present at the time of incident as he was in Jagadhari.

13. The trial court, on the basis of this evidence, found the accused-appellant and Kailash guilty and sentenced them as mentioned above vide impugned judgment and order dated 29.11.2001.

14. Learned counsel for the accused-appellants, Shri Digvijai Singh submits that the prosecution could not prove its case beyond reasonable doubt and there are gapping holes which could not be explained by the prosecution. The judgment of the trial court is based on surmises and conjunctures.

15. To support his submissions, learned counsel for the accused-appellants submits that the prosecutrix herself admitted that there were 4-5 houses and a well on the way from her house to the place of incident i.e. wheat field of Ramkewal but nobody saw her being taken away forcibly by the accused. He submits that this is wholly improbable.

16. He further submits that as the prosecutrix herself said that when the accused entered her house after knocking her door repeatedly when she opened the door, her children got up. The accused forcibly lifted her and took away but her children did not raise any alarm nor they followed her mother and they remained stood at the courtyard of the house. Learned counsel submits that this behavior of the children is wholly abnormal and the prosecution story cannot be believed.

17. Thirdly, he submits that the prosecutirx in her statement said that when she came back after one hour, she found her children wandering in the village in her search but the children did not tell anybody that the accused had taken their mother away nor did they seek any help of any of the villager.

18. Learned counsel submits that this itself cause a serious doubt on the prosecution story inasmuch as when their mother was forcibly taken away by the accused, it was natural that the children would have raised alarm and would have told their neighbours and other people of the village about her mother having been taken away forcibly by the accused. The prosecution has failed to fill up the hole in the prosecution story and the accused were wrongly convicted by the learned Trial Court.

19. Learned counsel further submits that P.W.-2 who prepared the report of medical examination of the prosecutrix, did not find any internal or external injury on the body of private parts of the prosecutrix and even in Exh.Ka-4, the injury noticed was of contusion and not of bitting. He submits that the prosecution story cannot be believed as the prosecutrix in her statement said that the accused-appellant bit her on her thigh but the doctor who examined her did not find any such mark of bitting. Her statement does not get support from the medical evidence on record.

20. Learned counsel further submits that the investigating officer did not record the statement of the children who were admitted to be aged around 7 to 12 years. At least the investigating officer should have recorded the statement of the prosecutrix’s elder daughter who was said to be around 12 years old. The investigating officer without properly investigating the case submitted the charge-sheet on the facts which did not constitute the offence, as alleged, to have been committed by the accused. Learned counsel submits that the statement of the prosecutrix is wholly unbelievable and cannot be relied on to hold the accused-appellant guilty of offense under Sections 366 and 376 IPC.

21. Learned AGA on the other hand said that the prosecutrix’s husband was living away at some other place for his employment. The prosecutrix was living alone with her three children. There was no reason why the prosecutrix would falsely implicate the accused. In their Section 313 Cr.P.C. statement, the accused had only said that they were falsely implicated for enmity but they did not lead any evidence regarding enmity with prosecutrix.

22. Learned AGA also submits that the investigating officer should have recorded the statement of the children at least of the elder daughter but not recording of the statement itself would not be fatal to the prosecution case inasmuch as the testimony of the prosecutrix has been unshaken, which proves the guilt of the accused beyond all reasonable doubts for committing offence under Sections 366 and 376 IPC. He further submits that the Trial Court had been lenient in sentencing the accused for only 3 years rigorous imprisonment. He submits that the appeal has no merit and, therefore, it is liable to be dismissed and impugned judgment passed by the learned Trial Court should be upheld.

23. Learned counsel for the accused-appellant in support of his submissions has placed reliance on several judgments of the Supreme Court. The first judgment which he has placed reliance is in the case of Jai Krishna Mandal and Another versus State of Jharkhand :(2010) 14 SCC 534 to submit that when the medical evidence does not support the prosecution story regarding rape and the prosecution was defective inasmuch as the petticoat and salwar were not sent for forensic examination, the conviction of the accused under Section 376 IPC can not be sustained.

24. The second judgment learned counsel for the accused-appellant has placed reliance is the judgment in the case of Mohammad Ali alias Guddu versus State of UP : (2015) 7 SCC 272. Learned counsel submits on the basis of the ratio laid down in the judgment that the conviction under Section 376 IPC can be based on the sole testimony of the prosecutrix provided her testimony is unimpeachable and beyond reproach. He submits that there is no plausible explanation for the prosecutrix to lodge the FIR after three days of the incident and to explain the delay. She only said that she was in constant threat by the accused-appellant. This explanation offered by her does not appear to be plausible one. Learned counsel has placed reliance on paras 29 and 30 of the aforesaid judgment which read 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. 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.

30. 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 unreproachable, 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.

25. Learned counsel submits that it was natural for the prosecutrix to tell her children who were awake and were searching for her in the village about the incident or where was she taken away by the accused.

26. Learned counsel has also relied on the judgment rendered by Supreme Court in the case of Krishan Kumar Malik versus State of Haryana : (2011) 3 SCC 130. The investigating officer did not record the statement of any child nor anyone was produced before the court to depose. Not recording the statement of the children shows negligent and casual manner in which the prosecution has conducted the investigation and then trial. The lacunae could not be explained properly by the prosecution. He further submits that under Section 6 of the Evidence Act, 1872, the children would have been res gestae witnesses. Section 6 of the evidence act reads as under:-

“6. Relevancy of facts forming part of same transaction – Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”

27. To support his submission, the learned counsel has placed reliance in para 37 of the said judgment wherein following has been held:-

“37. Section 6 of the Act has an exception to the general rule where-under, hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter. Admittedly, she had met her mother Narayani and sister soon after the occurrence, thus, they could have been the best res gestae witnesses, still the prosecution did not think it proper to get their statements recorded. This shows the negligent and casual manner in which prosecution had conducted the investigation then the trial. This lacunae has not been explained by the prosecution. The prosecution has not tried to complete this mssing link so as to prove it, beyond shadow of doubt, that it was Appellant who had committed the said offences.”

28. Learned counsel, on the basis of aforesaid judgment submits, that the prosecution could not fill up the gapping hole and, therefore, the conviction and sentence of the accused-appellant as recorded by the Trial Court was totally incorrect.

29. Learned counsel further submits that when the whole testimony of the prosecutrix suffers from infirmity and the medical evidence does not support the prosecution version, the reliance could not have been placed upon her sole testimony to convict the accused-appellant. In support of the said submission, learned counsel has placed reliance on the judgment in Dilip and another versus State of M.P.: 2002 SCC(Crl) 592 particularly paras 12 to 14 which are extracted hereinbelow:-

“12. The law is well-settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. Vs. Gian Chand -, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This Court further held:

“If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations…”

13. In Madan Gopal Kakkad Vs. Naval Dubey and Anr. – this Court has held (vide para 23) that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the ‘probabilities factor’ does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case medical evidence can be expected to be forthcoming.

14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would h ave surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist, the fact remains that the ‘probabilities factor’ operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m., in her own house, situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix did raise hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bladed from her private parts staining her body as also the clothes which she was wearing. This part of the story is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. The own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the court. The learned counsel for the State relied on Section 114A of Evidence Act, 1872 which provides that in a trial on a charge under Section 376(2)(g) of IPC on the prosecutrix stating that she was not a consenting party, the Court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not misunderstood (sic) as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which however have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed.”

30. Learned counsel has also placed reliance in support of the said submission in the case of Lalliram and another versus State of Madhya Pradesh: (2009) 1 SCC (Crl.) 17. In paras 12 and 13 of the judgment are extracted hereinbelow:-

“12. As rightly contended by learned counsel for the appellants a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar’s case (supra) it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal then the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value it may search for evidence direct or circumstantial.

13. So far as testimony of the victim is concerned the High Court has found that PW-2 stated about injuries on the cheek and back of the prosecutrix. But no such injury was found in the first medical examination. PW-2 had stated that she had suffered injuries on her legs. But such injuries were also not noticed.”

31. I have carefully considered the arguments advanced by the counsels for the accused-appellant and learned AGA and taken into account the case law cited by the learned counsel for the accused-appellant.

32. In the present case, the prosecutrix statement appears to be improbable and it does not get support from the medical evidence on record. The prosecution has not examined any other witness particularly any of the children who were present allegedly at the time when the accused entered the house of the prosecutrix and took her forcibly long away from her house to commit rape. There is no explanation coming forth for delay in lodging FIR and the explanation offered by the prosecutrix is not plausible.

33. The story set up by the prosecutrix that she sustained injuries on back and the accused bit her on her thigh did not get support from the medical evidence. There is no other witness except that of the prosecutrix whose testimony was not of sterling quality for convicting the accused-appellant under Section 376 I.P.C. and prosecution has withheld the evidence of the children who were allegedly got up when the accused were forcibly taking her away from her house, I do not find that there was sufficient evidence to convict the accused-appellant under Sections 376 and 366 IPC.

34. In view of the aforesaid discussion, the present appeal is allowed. The accused-appellant is acquitted of all charges. His bail bond is cancelled and sureties are discharged.

Order Date:-22.02.2018




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