HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- CRIMINAL APPEAL No. – 5665 of 2013
Appellant :- Kuldeep
Respondent :- State of U.P.
Counsel for Appellant :- S. K. Verma, Devendra Kumar Mishra, Dheeraj Kumar Dwivedi, Sharad Kumar Srivastava, Virendra Kumar Yadav
Counsel for Respondent :- Govt. Advocate
Hon’ble Pradeep Kumar Srivastava,J.
1. Heard Sri Sharad Kumar Srivastava, learned counsel for the appellant, learned AGA for the state and perused the record.
2. This criminal appeal has been filed against the impugned judgment dated 23.11.2013, passed by Additional Sessions Judge, court No. 9, Fatehpur, in Sessions Trial No. 15 of 2011, arising out of Case Crime No. 204 of 2010, under Section 376, 308 IPC, Police Station Bindki, District Fatehpur by which the accused-appellant Kuldeep has been convicted and sentenced for ten years rigorous imprisonment and Rs. 50,000/- fine and in default three months additional simple imprisonment for the offence under Section 376 IPC and five years rigorous imprisonment along with fine of Rs. 5000/- and in default fifteen days additional simple imprisonment for the offence under Section 308 IPC. It has further been directed that all the sentences shall run concurrently.
3. The brief facts of this case is that the informant is the resident of Mohalla Mahajani Gali Lahauri Town Bindki, Police Station Bindki, District Fatehpur. On 14.07.2010, the accused-appellant Kuldeep committed rape with the daughter of the informant and stabbed by a knife in her stomach. At that point of time, the informant had gone to her relations and when she got information about the incident on phone, the victim was admitted in District Hospital, Fatehpur and the stomach of the victim was operated. Therefore, on 20.07.2010, she gave an application to the police of Bindki mentioning therein that application was already sent to SP, Fatehpur about the incident, although, the same is not on record. On the basis of said information, the offence was registered under Sections 376, 308 IPC and chik was prepared. The offence was investigated by Investigating Officer who recorded the statement of the formal witnesses, informant and has also recorded the statement of the victim in the hospital with the statement of her brother Jeetu and relative Vinod. After receiving the medical report of the victim on 24.07.2010, the same was copied in the case diary. Similarly, the X-ray report, pathology report, supplementary report of the victim was also entered in the case diary. The accused surrendered on 26.08.2010 and his statement was recorded. He also prepared the site map. After completing the investigation, the charge sheet was submitted for the aforesaid offence. Charges were framed against the accused under section 308/376 IPC to which the accused denied and claimed trial.
4. In support of the prosecution case, PW-1 Shivdevi (informant), PW-2 Golden (victim), PW-3 Jeetu, PW-4 iDr. Kamal Dhawan, PW-5 SI Prem Chandra, PW-6 Subhash Chandra Singh (Chief Pharmacist), PW-7 Dr. D.K. Verma, PW-8 Constable Arvind Kumar Rahi, PW-9 Awadhpal Singh (Ward Boy), PW-10 Dr. V.C. Budhani and PW-11 Dr. Rakesh Pathak have been examined. The statement of Dr. Pradeep Kumar and Dr. Istiyaq Ahmad has also been recorded as CW-1 and CW-2. The prosecution witnesses have proved the incident and also proved the written report as Ext. Ka-1, medical report Ext. Ka-2, supplementary report Ext. Ka-3, site map Ext. Ka-4, letter to C.M.O. Ext. Ka-5, charge sheet Ext. Ka-6, bed head ticket Ext. Ka-7, chik first information report Ext. Ka-8, G.D. Report Ext. Ka-9, photo copy of the extract of the injury register Ext. Ka-10, pathology report Ext. Ka-11, radiologist report Ext. Ka-12 and X-ray plate as material Ext.-1.
5. The statement of the accused-appellant Kuldeep was recorded under Section 313 CrPC. He has put forward the case of denial and stated that the victim sustained injuries by falling down and after consultation and deliberation with malafide and greed, this false case was instituted. In defence, he has also examined DW-1 Dr. Vikas Anand, DW-2 Dr. Vikas Tripathi, DW-3 Dr. A.K. Singh and document Ext. Kha-1 has also been proved.
6. After hearing the counsel for both the parties, the learned trial court has passed the impugned judgment convicting and sentencing the accused-appellant.
7. Feeling aggrieved by the impugned judgment, this criminal appeal has been preferred and the impugned judgment has been challenged on the ground that the conviction and sentence has been erroneously awarded by completely misreading the evidence on record. The accused appellant is innocent and he has been falsely implicated and the prosecution failed to establish the guilt against the accused appellant. The learned trial court did not apply its judicial mind and only on the basis of the statements of the interest witnesses, the judgment has been passed. There is error of law, appreciation of facts is incorrect and evidence of the prosecution witnesses are not reliable. The impugned judgment is not based on direct evidence and is only based on circumstantial evidence. There was contradictions in the statement of witnesses and also with the medical evidence. Therefore, the impugned judgment is not sustainable under law, the appeal is liable to be allowed and the accused-appellant is entitled for acquittal.
8. It appears that 11 witnesses and two court witness have been examined to support the prosecution case. Before analyzing the statement of the prosecution witnesses and the other evidences on record, it appears appropriate to see what has been stated by the witnesses in this case.
9. PW-1 Shiv Devi is the informant and mother of the victim. She has stated that she knows accused Kuldeep present in the Court who is son of the mother-in-law (Fuferi) of her elder daughter. The incident took place an year before and it was 1:30 PM in the day time. She had gone to her maternal relatives in Raugan. She was informed by Sohan Lal that her daughter (victim) has fallen down from the roof. Sohan Lal is the father of Kuldeep and, therefore, he gave a false information. On that day, she could not return and on the next day, she saw the victim in the district hospital in serious condition who was not in a position to speak and her intestine was coming outside from her stomach. When she became conscious, she told that Kuldeep committed rape with her on the point of knife and when she said that she will make a complaint about it, he stabbed the knife in her stomach. The informant got a written report typed and gave the same to Kotwali Bindki after putting thumb impression on the same, which is Ext. Ka-1. She has also stated that when she went to lodge the report, her daughter was hospitalized. Her son and her elder son-in-law Vinod had reached there and they any how saved the victim. Had they not reached, the accused could have killed the victim. The SO took her statement and inspected the place of occurrence. In the cross-examination, she has stated that she did not see the incident herself.
10. PW-2 is victim herself who has stated that she knows the accused who is son of her sister’s mother-in-law (Fuferi). The accused Kuldeep had come to her house on 14.07.2010. Her brother-in-law had gone to Bindki. It was about 01:30 PM. She was cooking and Kuldeep was sitting under the shade. When she went inside to keep vegetables, accused came behind her, caught her and closed her mouth. She said, what stupid he is doing. Then he threatened her to keep quite otherwise he would stab knife. He started doing forcible sexual assault and got her naked and committed rape with her. She cried but he forcibly committed rape. Thereafter, because she was shouting, he stabbed knife in her stomach. When the accused was committing rape, her brother and her brother-in-law came inside. They saw the incident. They saw the accused wearing his pant. She did not know who took her to the hospital as she got fainted. She remained in District Hospital, Fatehpur for one and half months. On 17th of the month her stomach was operated and still she was not able to move. The SO came and inquired about the incident. When she got conscious, she told about the whole incident to her mother who lodged the first information report. She was medically examined in the district hospital.
11. PW-3 Jeetu, the brother of the victim, has stated that he knows accused Kuldeep. The incident took place on 14.07.2010 at about 01:30 PM. He had gone to Bindki Tehsil for getting caste certificate. When he returned, he saw Kuldeep in the house wearing his pant. He had stabbed the victim in her stomach. He warned him to run away otherwise he would kill him and thereafter he fled away from there. Her sister said that he committed rape with her. Sushil also reached there and both took the victim to the hospital where she remained under treatment in the whole night and then she was referred to the District Hospital, Fatehpur.
12. PW-4 Dr. Kamal Dhawan has stated that on 22.07.2010, he was posted as medical officer in the Emergency of District Women Hospital and in the noon at about 02:40 PM, Constable Manju Yadav brought the victim to the hospital and she was examined by him. Because of the injury, she was admitted in the District Hospital, Fatehpur for some days. She made complaint about commission of rape on her on 20.07.2010. She was slim and 45 Kg. in weight. Teeth 14 X 14 were found. Breasts were average. Hair were present on vagina and no injury was found on the breasts. Urinal tube was inserted. For external injuries, he referred her to District Hospital, Fatehpur for medico legal examination. It was not possible to give any opinion about rape as she told that her period started on that day. The medical report is Ext. Ka-2. Supplementary report was given on 26.07.2010. Vaginal swab was taken which was examined by Dr. B.C. Budhani on 23.07.2010 who gave the supplementary report Ext. Ka-3.
13. PW-5 SI Prem Chandra has stated that on 20.07.2010, he was posted at Police Station Bindki as in-charge officer and took over the investigation on that date. He copied the written report in the case diary and recorded the statement of Constable Kuldeep Yadav on that very day. On 22.07.2010, he recorded the statement of Shiv Devi and on her identification, place of occurrence was inspected and site map Ext. Ka-4 was prepared. The statement of the victim was recorded in the women’s ward on bed no. 17 of the district hospital and on the same day statement of Jeetu and Vinod was also recorded. On 24.07.2010, he obtained X-ray report, pathology report, supplementary report and the same were entered in the case diary. On 28.07.2010, he obtained the injury report of victim which was copied in the case diary. On 26.08.2010, the accused surrendered and his statement was taken. The victim was medically examined by PW-4 Dr. Kamal Dhawan and according to medical report, there was no injury on the private parts of the victim. The surgery of the victim was done by Dr. D.K. Verma. He recorded the statement of Chief Pharmacist Subhash Chandra Singh and after completing the investigation, he submitted charge sheet which is Ext. Ka-6.
14. PW-6 Subhash Chandra Singh, Chief Pharmacist has stated that he has come with the bed head ticket of victim. On 15.7.2010, at 2:00 PM, the injured was brought as referred patient from CHC, Bindki and treatment was provided by Dr. D.K. Verma. She was aged about 18 years and she was discharged from the district hospital on 28.07.2010.
15. PW-7 Dr. D.K. Verma has stated that on 15.07.2010, he was posted as surgeon in the District Hospital, Fatehpur and on that day at 02:00 PM, the injured was admitted for treatment with complaint of pain in her stomach. Ultrasound was conducted and it was found that her small intestine was torn. He operated and stitched the small intestine on 17.07.2010 and necessary medicines were given. On being recovered, she was discharged on 28.07.2010. It was possible that the injuries in her stomach may have been caused by the butt of a knife, and if the same was not operated, death was possible. He has proved the bed head ticked as Ext. Ka-7.
16. PW-8 Constable Arvind Kumar Rahi has stated that on 20.07.2010, he was posted at Police Station Bindki and at 09:30 PM, on the basis of type-written application of Shiv Devi, he registered Case Crime No. 204 of 2010, under Sections 376, 308 IPC against accused Kuldeep. The first information report is Ext. Ka-8 and the carbon copy of the GD in which entry about registration of offence is Ext. Ka-9.
17. PW-9 Awadh Pal Singh has stated that he is working as ward boy in the CHC, Bindki. He had come with the emergency OPD Register dated 01.01.2010 to 11.02.2010 in which on 14.07.2010 at Sl. No. 1978 at 07:50 PM, the name of victim is mentioned and it has been also mentioned that she was referred to District Hospital, Fatebpur. The relevant extract of register is Ext. Ka-10.
18. PW-10 Dr. B.C. Budhani has stated that on 21.07.2010, he was posted as Pathologist in District Hospital, Fatehpur and on that day, he examined two slides of vaginal smears of the victim, which were sent by Dr. Kamal Dhawan, through constable Manju Yadav. In examination of the same, red blood cells were found on the slides and no live or dead spermatozoa was found. The pathology report is Ext. Ka-11.
19. PW-11 Dr. Rakesh Pathak has stated that on 23.07.2010, he was posted as radiologist in the District Hospital, Fatehpur and under his supervision X-ray of wrist and elbow joint of the victim were conducted and on the basis of X-ray plate, he prepared the report which is Ext. Ka-12. According to which all the epiphyses of the joint were found to be fused. In the X-ray of wrist, radius and alna bone, epiphyses were found to be joint. The victim was aged about more than 16 years and less than18 years. X-ray plate is material Ext. -1.
20. DW-1 Dr. Vikas Anand has stated that he was posted in emergency of District Hospital on 15.7.2010 and at 02:00 PM by reference slip of CHC, Bindki, Fatehpur, victim was brought and she was admitted in the hospital on the basis of self inflicted injury and after first aid treatment, she was admitted under the surgeon. Admission ticket Ext. Ka-7 is in his writing and signature. The injured victim told whatever and whatever was written in the reference slip, he also wrote the same at the time of admission. The condition of the victim was quite normal. She did not say anything that she was assaulted by any one and rape was committed on her.
21. DW-2 Dr. Vikas Tripathi has stated that on 16.07.2010, he was posted as EMO in the District Hospital, Fatehpur and on call he examined the victim at 07:40 AM. She was complaining pain in her stomach, upon which treatment advised was written on her bed head ticket. She did not complain anything other than the stomach pain.
22. DW-3 Dr. A.K. Singh has stated that on 14.07.2010, he was attached in PHC as Medical Officer and the victim came for her treatment. The witness has proved the reference slip dated 15.07.2010 as Ext. Kha-1.
23. CW-1 Dr. Pradeep Kumar is just a formal witness who has not stated anything relevant.
24. Cw-2 Dr. Ishtiyaq Ahmad has stated that on 30.05.2013, he was posted as in-charge medical officer in CHC, Bindki. He came with the OPD Register dated 01.01.2010 to 11.09.2010 and duty register dated 14.07.2010 and 15.07.2010 and by way of photo-estate, he has filed after making comparison by his writing and signature which are Ext. Ka-10 and Ext. Ka-11. He has stated that on 15.7.2010, Dr. A. K. Singh was doctor on duty in CHC, Bindki.
25. The first submission is with regard to delay in lodging FIR. The incident took place on 14.7.2010 at any time and on the basis of type-written report given by PW-1 Shiv Devi (mother of victim), the FIR was registered on 20.7.2010 at 7.10 AM. The place of occurrence is situated at the distance of one furlong from the police station. As such, the FIR has been lodged on seventh day from the date of incident. PW-2 Victim has stated that the incident took place at about 1.30 PM. PW-1 has stated that she was not present in the house and had gone to her relatives and came back on the next day after being informed and she met her daughter in the district hospital. She has also stated that she was not present at the place of occurrence and her daughter told her about the incident in the hospital. The prosecution evidence clearly shows that the victim was admitted in the district hospital on 15.7.2010. Thus, on 15.7.2010, the informant had the knowledge of the incident as told to her by the victim. Both victim and informant have stated Jeetu and Vinod to be witness of the incident and they must have also informed the informant about the incident. Therefore, the prosecution had to explain why till 20.7.2010, she did not lodge FIR. The informant, during cross-examination, just to shorten the delay, started saying that on the fourth day, she met her daughter in the hospital. This appears to be self-contradictory to the version of FIR and statement given to the IO under section 161 CrPC. It is true that in cases of rape, the delay in lodging FIR is not fatal but there is no case that the informant took time in taking decision for lodging FIR. This indicates that the delay in lodging FIR has not been convincingly explained by the prosecution.
26. Another defect is that in the written report, it has been mentioned that the accused stabbed the victim in her stomach and PW-1 has stated in her examination-in-chief that she met her daughter in the hospital, her condition was serious and her intestine was coming out from stomach. She said that the victim was stabbed by the accused. PW-2 victim and PW-3 Jitu have also stated that the accused stabbed the victim. The medical report however does not support it as no stabbed wound has been found by the doctor. The prosecution case is that initially the victim was given treatment at CHC and on 15.7.2010, she was brought to district hospital as referred case. The doctor who gave treatment to her at CHC has not been examined by prosecution. He has been examined as defence witness as DW-1 Dr. Vikas Anand, Medical Officer, working in Emergency at District Hospital on 15.7.2010, who has stated that the victim was admitted on the basis of reference slip of CHC and she was admitted for the treatment of self inflicted injury. Similarly, DW-2 Vikas Tripathi, EMO, District Hospital has also stated that on 16.7.2010, at 7.40 AM, he examined the victim in the ward and she was complaining of stomach pain. Both these witnesses have not been even cross-examined by the prosecution and therefore, there remains no doubt with regard to the correctness of their statements. I find that after the examination of two defence witnesses, CW-1 Dr. Pradeep Kumar, Medical Officer, District Hospital and CW-2 Dr. Ishtiyaq Ahamad, In-charge CHC, Bindki were summoned as court witnesses and on the basis of their statement, Dr. A. K. Singh, the then Medical Officer, CHC, Bindki has been examined who has proved the reference slip of victim as Ext. Kha-1 and has stated that the victim had come for treatment of self inflicted injury. He has been cross-examined, but nothing favorable to prosecution has come out.
27. In the same continuity, the medical evidence given by prosecution on the point, if analyzed, same result comes out and there is no indication of any stab injury to the victim. For instance, PW-4 Dr. D.K. Verma has stated that on 15.7.2010, the victim was admitted for treatment and she was complaining stomach pain and on ultra-sound her intestine was found lacerated. She was operated by him on 17.7.2010 and after being cured, she was discharged on 28.7.2010. He has stated that the intestine may be torn by hitting very powerfully by blunt object such as butt of a knife. He has admitted during cross-examination that she was admitted in hospital on reference for the treatment of self inflicted injury and there was no injury by sharp weapon. He has also stated that Sohan Lal told him on phone that the victim had fallen from roof. PW-7 has stated that there was no injury of sharp weapon to the victim. He has stated that on falling from roof on some blunt object from the side of stomach, such injury is possible. PW-10 Dr. B. C. Budhani has not indicated injury on her private part. Therefore, medical evidence does not support the prosecution case in entirety. On the contrary, it does not rule out the defence case that she sustained injury as she fell down from roof.
28. PW-3 Jitu, the real brother of the victim, was not there in the house and he has stated that that when reached in the house, accused Kuldeep was wearing his pant and the moment he reached, the accused assaulted by knife in the stomach of victim and threatened him to run away otherwise he would assault him also by knife. Thereafter, he ran away from there. His sister, as he saw, sustained injury on her stomach His sister told her that the accused committed rape on her. It is strange that if everything was in the knowledge of PW-3, what prevented him and his brother in law to lodge FIR about the incident. He did not tell about the incident to his relative or neighbors nor took their help. He did not even inform to his mother and strangely, she was informed by the father of accused that victim has fallen. It is difficult to understand the conduct of this witness which appears to be unnatural and not of a prudent person and certainly it reflects upon the credibility of his testimony. His presence at the time of incident or soon after appears to be doubtful.
29. PW-2 is the victim who has stated that the accused committed rape on her on the point of a knife and when she started crying, he threatened to stab her by knife and when she continued crying, he stabbed her after committing rape. She fell down and at this point of time her brother Jitu and her brother in law Vinod reached there. Then, the accused was wearing his pant. It was bleeding and she got fainted.
30. Now, the evidence of all the three witnesses and prosecution case suffers from serious infirmities. Firstly, there is no medical evidence showing that the victim sustained any incised wound in her stomach caused by knife. The doctors who examined the victim, treated and operated her abdomen, have for reasons best known to them have tried to make out an injury by butt of the knife, which was never the case put forward by the prosecution. The trial court appears to have acted strangely by placing reliance on the opinion of doctors that the injury was possible by the butt of knife as it is beyond the prosecution case. No such statement has been given by the victim or any of the fact witnesses. Moreover, there is always a presumption that a weapon was used in a like manner it is used unless the facts and circumstances permit an otherwise inference.
31. Niranjan Prasad v State of MP, 1996 CrLJ 1987 (SC), was a murder trial, testimony of eye-witnesses was that the deceased and injured were assaulted with sharp cutting weapons but their testimony was not corroborated with medical evidence showing deceased having been injured by blunt object (weapon) only. Post-Mortem Report showing that the deceased had no injury which could be caused by a sharp cutting weapon and, indeed, he had sustained only one injury which could be caused, according to the doctor by a blunt weapon only. Keeping in view the sharp contrast in between the ocular testimony and the medical evidence, the Supreme Court set aside the conviction of the accused persons.
32. Similarly, in Thaman Kumar v State of Union Territory of Chandigarh, (2003) 6 SCC 380, the Supreme Court laid down as follows:
“There may be a case where there is total absence of injuries, which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type, which is possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second category and third category no such inference can straightaway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of the ocular testimony.”
33. In this instant case, the first category is applicable where there is total absence of injuries, which are normally caused by a weapon like knife and it may legitimately be inferred that the oral evidence regarding assault having been made by knife is not truthful. There is another logic to support this inference. As said by the victim in her on oath statement, the accused stabbed her after commission of rape. It does not appeal to reasoning. When rape was already committed by accused, there was no need for the accused to assault her by knife. There is no recovery of the said weapon which could show that the make of the weapon was such that it could cause serious injury by butt side. I find apparent perversity and illegality in the finding of the learned trial court holding the accused guilty for the offence under section 308 IPC.
34. Now coming to the charge of rape, the victim has stated during cross-examination that the accused firstly dashed her on wall and she sustained injury on her head. Then he tossed her on the ground and she sustained injury on her back and in the commission of rape, she sustained abraded injuries on her hand and legs. He had got her completely naked and after commission of rape when he was wearing his pant, she was lying naked and her brother and brother in law saw her in completely naked position. She has admitted that her uncles house is adjacent to her house but they could not hear her crying as they had gone to field for agricultural work. If the rape was committed on her in the way she has stated, she should have suffered more injuries but no injury on her head and back has been found in the medical nor there is any abrasion on her her hand or leg. Had the rape committed in such a way, the victim must have sustained some injury on her private part. But no such injury has been found in the medical. PW-3 has stated that when he reached on spot, the accused was wearing his pant but he has not stated that the victim was lying naked. He has stated that he did not call his relatives who lived adjacent to his house as their relation was not good and they were not on talking terms. This is again contrary to what the victim has stated. There is inconsistency in the statement of the informant as in the cross-examination, she has stated that on fourth day she reached in the hospital and the victim told her about the incident which is contrary to what she stated in examination-in-chief that next day she met her daughter in the hospital who told her about the incident. PW-1 and PW-2 have stated that at the time of incident, brother/son Jitu and brother in law/son in law Vinod reached there. In the examination-in-chief, PW-1 has stated that her son Jitu and son in law reached at the time of occurrence and saved her daughter, otherwise, the accused could have killed her. But, PW-3 Jitu has not stated about Vinod but about one Shusheel and he too did not reach with him and reached subsequently. Thus, there is contradiction on this point in the statement of witnesses. The evidence is on record that the victim was taken to CHC, Bindki by her brother Jitu and Shusheel and the victim according to PW-3 had informed him regarding commission of rape by accused. If it was so, nothing prevented them to disclose it to the doctor. There is no medical evidence that the victim was unconscious. The medical report shows that she was normal. Prior to 20.7.2010, she was operated and attended by various doctors but, she has not stated about rape on her. Then, why the doctors there were informed that the victim was admitted for treatment for self inflicted injury. The reference slip and statement of doctors contains this fact and there is no reason to say that the doctors mentioned this fact wrongly. PW-4 Dr. Kamal Dhawan has stated that the victim was admitted in the hospital from some days and only on 20.7.2010, she complained about rape and on 22.7.2010, when she was brought by local police, he examined her. There was no injury on her private part and she told that her menses started on that very day. She had been subjected to sexual intercourse in view of finger test but no definite opinion of rape was possible. She did not complain any pain in her private parts. Hymen was old torn. Thus, the medical evidence also does not corroborate the incident of rape on the victim.
35. The learned trial court has not considered the inconsistency, improvement and contradiction in the prosecution evidence. The prosecution has introduced and added new facts and story during evidence which makes the prosecution version improbable. In Ram Narain Popli v CBI, (2003) 3 SCC 641 and Vallabhaneni Venkateshwara Rao v State of AP, 2009 (4) Supreme 363, it has been held that introduction of or addition of new story or projection of different story by prosecution adversely affects and destroys the prosecution case and it is unsafe to convict the accused and benefit of doubt should be given to accused. There is delay in lodging FIR and no attempt has been made by prosecution to explain the delay. In rape cases, it is settled law that delay in lodging FIR is not material and if the offence has been proved by cogent evidence, the same will be insignificant. In this case, three witnesses of fact including victim have not been able to prove prosecution version in a reliable and credible way and thus, the delay in lodging FIR goes to render additional ground to dislodge the prosecution case. The medical evidence adduced by prosecution is to the effect that the victim was under treatment for self inflicted injury. Thus, the medical evidence also does not corroborate the prosecution case and it does not rule out or improbablize the defence version that the victim fell down from roof. In this case, the facts constituting the offence of attempt to culpable homicide and rape are so intermixed and inter-connected that one of them cannot be isolated from other.
36. In view of above discussion, I find that the learned trial court ignored the infirmities in prosecution version and prosecution evidence. There was variation, contradiction, inconsistency and improvement in the testimony of fact witnesses. PW-1 was not present at the time of occurrence and she lodged FIR on the seventh day on the basis of what was said to her by victim. Since, her son was in the knowledge of the incident and was well informed by the victim, she must have been told by her son about the incident. Her son and son in law could have lodged FIR. Therefore, the delay in lodging FIR assumes importance and creates doubt on prosecution version. There appears to be no reason advanced by prosecution why she was admitted for treatment in the hospital for the treatment of self inflicted injury. It supports the defence case. The prosecution case of causing stabbed injury by knife to victim by accused has been found to be untruthful. Both the sides are relatives and the presence of accused there, if it is believed that he was there, cannot be said to be unnatural. It has come in the FIR itself and also in the statement of informant that she was informed by Sohan Lal, the father of accused, by phone that victim had fallen down from roof. This has also come in the statement of doctor that Sohan Lal so informed him on phone. He so informed when there was no FIR about the incident. The evidence of prosecution witnesses is shaky, unnatural and untrustworthy and the learned trial court committed error in placing reliance on them. Thus, there is apparent perversity and illegality in the impugned judgment and the same is liable to be set aside and the accused is entitled for acquittal.
37. The Criminal Appeal is allowed. The impugned judgment dated 23.11.2013 convicting and sentencing the accused for the offence under section 376/308 IPC is set aside. Accused Kuldeep is acquitted consequently.
38. Accused Kuldeep be released from jail forthwith.
39. Office is directed to transmit back the lower court record to the concerned court along with a copy of this judgment for information and compliance.
Order Date :- 27. 4. 2020
(Justice Pradeep Kumar Srivastava)