HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 16.10.2019

Delivered on 06.01.2020

Case :- CRIMINAL APPEAL No. – 2630 of 2009

Appellant :- Mukesh Walmiki And Another

Respondent :- State of U.P.

Counsel for Appellant :- Pradeep Kumar Shukla,Amit Kumar Srivastava,Kamlesh Tiwari,M.N.Singh,Rajesh Singh Rathore

Counsel for Respondent :- Govt. Advocate

Hon’ble Siddharth,J.

Heard Sri Rajesh Singh Rathore, learned Counsel for the appellants and Smt. Seema Shukla, learned AGA for the State.

This criminal appeal has been preferred by appellants, Mukesh Walmiki, s/o Sri Manohar Lal and Manohar Lal, s/o Har Charan Lal Singh, against the judgment and order dated 25.4.2009 passed by Additional Sessions Judge (Fast Track Court), Court No.4, District Bareilly, in Sessions Trial No. 714 of 2007 (State Vs. Mukesh and others), under Sections 366, Section376 IPC convicting and sentencing the appellants under Section 376 IPC to 10 years rigorous imprisonment and fine of Rs.5000/- each and under Section 366 IPC to 7 years rigorous imprisonment and fine of Rs.3000/- each and on failure to deposit the fine, to undergo four months additional imprisonment.

The prosecution case is that informant, Beena Yadav, w/o Om Prakash Yadav, made an application before the police station that her daughter, Chandani @ Jyoti, had gone to Kutchery on 14.7.2005 and she was kidnapped by Mukesh s/o Manohar Lal and his companions. Later she came to know that Mukesh has forcibly abducted her daughter for the purpose of marriage. She gave an application before the Police Station Baradari, Bareilly, on 21.7.2005, but her report was not lodged and her daughter was not recovered. Later informant came to know that on 14.7.2005, when her daughter was going to Shulabh Shauchalay she was abducted on the point of knife by Mukesh Walmiki and for last two months, she is in his captivity. Mukesh Walmiki, s/o Manohar Lal, Manohar Lal, s/o Har Charan Walmiki, his wife, Bimlesh and daughter, Sandhya, with help of Tantrik Methods, rape and blackmail girls by snapping their nude pictures and compel them to live in their caste. The daughter of the victim is in captivity of accuseds and should be recovered. On the direction of Deputy Inspector General of Police, Bareilly, FIR was registered on 27.8.2005 against accuseds, Mukesh Walmiki, Manohar Lal, Bimlesh and Sandhya, under Sections 363, Section366 IPC and victim was recovered on 31.1.2006. On the basis of her statement and medical report, the case was converted for offences under Sections 363, Section366, Section376 IPC and charge-sheet was, accordingly, submitted.

The trial court framed charges under Sections 363, Section366 IPC against the appellants, Mukesh and Manohar Lal. They denied the charges and sought trial.

PW-1, Smt. Beena Yadav, stated that victim had gone to Kutchery alongwith her younger brother, Jitendra, for preparation of an affidavit, where she was kidnapped by accused, Mukesh. When her daughter did not reached home, she started her search and thereafter, came to know that Mukesh, Manohar Lal, his wife, Bimlesh and his daughter, Sandhya, have forcibly abducted her and want to get her forcefully married to Mukesh. The accuseds entice away the girls and thereafter they sell them. They rape them and on the basis of photographs blackmail them. She proved the application given at the police station and stated that her daughter was recovered after six months and given in her custody. In her cross-examination, she admitted that when she came to know about the captivity of her daughter, PW-2, by appellants, she went to meet her.

PW-2, victim stated that she had studied upto high school. On the fateful day, she had gone to get an affidavit prepared from Kutchery alongwith her younger brother. When she was going to Shulabh Shauchalay, she met a black woman, who gave her some Prasad. After consuming the same, she got stupefied. Two persons came, one of whom on pointing of knife caught her and when she raised alarm, some people came, but they informed that she is their daughter suffering from illness. When she regained consciousness, she found herself in a dark room. Her hands and legs were tied and these people committed her rape against her will. They used to take her after blind-folding and she was made to sign on the papers forcibly on the threat that in case she refuses to make her signatures, they will kill her family members. When she tried to escape, her hands were cut. She was regularly given intoxicants and she remained with them for 5-6 months. She does not knows wherefrom she was recovered by the police, but she went with her mother on her will. She stated that she won’t be able to tell the name of accuseds, but she can recognize their faces. She identified Mukesh and Manohar in court as the persons, who used to give her intoxicants and raped her in their custody.

PW-3, Dr. Snehlata Singh, deposed before the court that there was no injury, swelling or redness found on the private part of the victim, nor there was any bleeding present. Hymen of the victim was found to be old torn. X-ray of the victim for determination of age was done and slide of vaginal smear was prepared for examination. She has not given any definite opinion about the rape and found age of PW-2 around 18 years.

PW-4, Investigating Offcer, Shanti Devi, proved her investigation record before the court.

PW-5, Om Prakash, father of the victim repeated the allegations made in the FIR and further stated that he came to know about the incident 10-15 days after the incident. He stated that he worked in railway workshop, Izzatnagar. He further stated that his wife lodged the FIR at police station and his daughter was recovered after 5-6 months of her abduction.

PW-6, Sub Inspector, Vinod Kumar Jaiswal, proved that he was the second Investigating Officer and recorded the statement of the victim and also recovered the victim and handed her over to her mother. Charge-sheet was filed before the court.

PW-7, Constable, Hawaldar Singh, proved the G.D. entry of the FIR and his signatures on the carbon copy of the same.

Statements of accuseds were recorded under Section 313 Cr.P.C. wherein they denied the alleged incident. They filed the copy of application alongwith registered post receipt, given to the DIG, Bareilly Range, Bareilly, by PW-2 admitting her marriage with Mukesh, affidavit evidencing marriage, carbon copy of non-cognizable report, original transfer certificate, photocopies of newspaper report and five original photographs.

The trial court after considering the evidence on record found that age of the victim is 20 years and 10 months and therefore, she was major at the time of alleged incident. The trial court further found that victim did not married the appellant No.1, Mukesh and the documents of marriage prepared were under pressure. No evidence of valid marriage was brought on record. It also did not found any evidence that during six months of marriage of the victim with Mukesh, they lived as husband and wife. The trial court has concluded that appellants abducted the victim for the purpose of rape and they committed the alleged offence against her. The Offence under Section 363 IPC was not found to be proved, but offence under Sections 366 and Section376 IPC were found to be fully proved against the appellants and they were, accordingly, convicted and sentenced. Hence this appeal.

Learned counsel for the appellants has submitted that in the present case except the testimony of the victim, there is no corroborative evidence on record. The Medical report does not supports the allegations made by the victim. Learned counsel for the appellants has relied upon the judgment of Apex Court in the case of Raja and others Vs. State of Karnataka, 2016 LawSuit (SC) 974 2016 (10) SCC 506. He has further submitted that in the present case, there is allegation that victim was subjected to rape for a period of six months, when she was in custody of the appellants, but PW-3, Dr. Snehlata Singh, has not found any injury, swelling, redness, bleeding, etc., on the private part of the victim. PW-2 has stated that she was administered some intoxication for six months and she remained stupefied all through. She was always blind-folded, when taken out and she was made to put her signatures on number of applications. She does not knows, where she was taken for the purpose of making of signatures. Signatures cannot be given while eyes of the person are tied. The victim has not been able to tell any detail about where she was for a period of six months. It has been submitted that six months’ period is considerable and it does not appeals to reason that a grown up girl will not able to tell anything about the details where and how she was kept by the accuseds during this period. Learned counsel for the appellants has relied upon the judgment in the case of MD Ali @ Guddu Vs. State of U.P., 2015 LawSuit (SC) 208 2015 (7) SCC 272. In her cross-examination, mother of the victim, PW-1, admitted that she went to the place of appellants after coming to know where PW-2 is, but PW-2 has not accepted this fact nor has stated why she did not accompanied the PW-1 to her house.

Per contra, learned AGA has submitted that appellants forcefully abducted the victim and held her in captivity for six months. During this period, she was subject to rape by both the appellants and her recovery was made, only after mother of the victim approached the Deputy Inspector General of Police, Bareilly. The appellants are influential persons and prevented the police from lodging the FIR earlier and only when the Deputy Inspector General of Police, Bareilly, directed that report was lodged and the recovery of victim was made. It has been submitted that on account of long detention of the victim for six months, doctor has not found any injuries on her private parts since the injuries must have been healed during this period. It has been submitted that the trial court has rightly convicted and sentenced the appellants and learned counsel for the appellants has not made out any good ground for interference with the judgment of court below.

After considering the rival submissions, this Court finds that appellant No.1 is the son of appellant No.2. The victim has been found to be aged about 21 years by the court below.

In defence number of documents were filed. The first document is an application dated 20.7.2005 sent to the Deputy Inspector General of Police, Bareilly Region Bareilly, wherein victim had stated that she has married the appellant No.1, Mukesh, and a notarial document of marriage was sent alongwith application. In the notarial affidavit signed by the victim and Mukesh, it has been stated that they have married in temple on 14.7.2005. She has admitted that she is major. A non cognizable report dated 18.01.2006 filed by victim against Jite, s/o Manohar Lal, has been brought on record, wherein she has stated that Jite is her brother-in-law (Devar) and he committed the offence under Sections 323, Section504 IPC against her. Some photographs of the victim of the marriage have also been brought on record with the appellant No.1. The victim has stated that she was forced to put her signatures on many applications, but she has not denied in her statement that she did not executed the affidavit dated 19.7.2005 evidencing her marriage with appellant No.1. The original transfer certificate of her college was also brought on record, which proved that the date of birth of the victim was 13.9.1984.

In the statement of PW-1, the informant and also in the statement of PW-2, victim, it has come that younger brother of the victim, Jitendra, accompanied her on 14.7.2005, when she went to Kutchery for the purpose of preparation of an affidavit. However both the witnesses have not stated why her brother, Jitendra, did not informed her mother about the fact that victim has been abducted by someone, when she had gone to Shulabh Shauchalay. Nothing has been said about brother of the victim, Jitendra as to what was the role of Jitendra, after the victim was kidnapped. Jitendra has also not produced before the court to prove that he accompanied the victim on the date of incident and victim was actually abducted on that day. He was the best person to prove the offence of abduction by force by the appellants, but was kept away from the scrutiny of court.

The trial court has disbelieved the defence of marriage of appellant No.1 with PW-2 only on the ground that there was no evidence to prove a valid Marriage on record. The trial court has not applied its mind to the fact that although there was no evidence of valid marriage, there were documents which proved that there was some consent between the appellant No.1, Mukesh and victim and she executed the documents three days after the alleged abduction. The allegation of rape has been levelled against the father and son both, simultaneously. The allegation does not appears to be credible. Father and son both cannot be expected to commit such offence together against single woman. Moreover, PW-1 has admitted in her cross-examination that she when to meet PW-2 at the house of appellants, but neither she has disclosed the time, nor date nor what transpired between her and PW-2 and the appellants during her visit to the house of appellants. This raises serious doubt about the prosecution case.

Regarding the importance of injuries, when the victim is alleged to have been subject to rape number of times for period of six months, it has been stated by the Apex Court that medical evidence becomes relevant. In paragraph No.21 of the judgment in the case of MD Ali @ Guddu (supra) it was held,

“21. 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. 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.”

Regarding the weight given by the trial court to the testimony of the victim without its corroboration, the Apex Court had held in the case of Raja and others (Supra) in paragraph No. 24 as follows,

“24. This Court in Raju and Others Vs. State of Madhya Pradesh (2008) 15 SCC 133, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and Section113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.

The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non- consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.”

After considering the entire facts and circumstances of the case, this Court is of the view that in the present case, prosecution has not been able to prove the case of abduction and rape against the appellants beyond reasonable doubt. Victim is a major girl. Appellants have no criminal antecedents and they have been convicted only on the basis of solitary testimony of the victim. The medical evidence does not corroborates the prosecution case. The family of the victim and the appellants appear to be known to each other. The oral testimony of the victim does not stands corroborated from the medical evidence. It appears that the victim eloped with the appellant No.1 on 14.7.2005 and stayed with him for six months. The mother of the victim gave an application dated 21.7.2005 before the police station concerned, but claims that FIR was not registered. She did not approached any higher authority. She only gave the application to DIG Police, Bareilly, on 27.8.2005 and thereafter FIR was lodged on 27.9.2005. From the statement of the victim recorded by the Investigating Officer under Section 161 Cr.P.C., soon after her recovery she had admitted that she was enticed away by the appellant No.1 and she went with him. She had stated that later she realized her mistake on going with him and she levelled the allegation of rape against the appellant No.1 and then appellant No.2, his father. Clearly the victim is major and it cannot be said that she was not aware of consequences of her act of going with appellant No.1, Mukesh. After staying with him for about six months, it appears that she could not remain happy with him and hence she made allegations of abduction and rape against both the appellants. From her statement, it appears that after she went with the appellants, she realized that she belongs to higher caste and her parents are being humiliated and she realized her fault. Statement of the victim before the trial court is that for a period of six months, she remained under intoxication, wherever she went, she was blind folded, such a statement cannot be accepted. Conduct of PW-5, father of the victim, is strange. He has admitted that he came to know about abduction of PW-2, 10-15 days after the incident. A person, whose daughter is abducted, was not informed of the fact for 10-15 days is not credible. These improbabilities show that prosecution has not been able to prove the case against the appellants beyond doubt. The victim was a major girl at the time of alleged offence and it cannot be accepted that she was enticed away by the appellant No.1 without her consent. The prime witness of her abduction, her brother, Jitendra, was not produced to prove her abduction from Kutchery. Her consent may have been on account of misconception of fact, but it does not appears from the perusal of the material on record, that she was abducted by force from busy place of Kutchery, Bareilly, when her brother was also accompanying her. The appellants deserve to be absolved of all charges.

The judgment and order of trial court is hereby set aside. The appellants are on bail. Their bail bonds and sureties are discharged.

The record of court below is directed to be sent back to the court below within three weeks alongwith copy of this order.

This Criminal Appeal is allowed.

Order Date :- 06.01.2020

Ruchi Agrahari