HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 19.11.2019.
Delivered on 17.01.2020
Court No. – 81
Case :- CRIMINAL APPEAL No. – 323 of 1983
Appellant :- Sonpal Singh and another
Respondent :- State of U.P.
Counsel for Appellant :- Y.K. Shukla,Sudhakar Yadav
Counsel for Respondent :- Govt. Advocate
Hon’ble Dinesh Kumar Singh-I,J.
1. Heard Sri Sri B.K. Tripathi, Advocate holding brief of Sri Sudharkar Yadav, learned counsel for the appellant no. 1 and Sri G.P. Singh, learned A.G.A. appearing for the State.
2. This appeal has been preferred against the judgment and order dated 24.1.1983 passed by VIth Additional District and Sessions Judge, Shahjahanpur in S.T. No. 544 of 1982 (State vs. Sonpal Singh and another), whereby appellant Sonpal Singh has been convicted under section 376 IPC and has been sentenced for three years R.I. and appellant Rampal has been convicted under section 376/511 IPC and has been sentenced for three years R.I.
3. As regards the appellant no. 1 Sonpal Singh, it is reported by the Chief Judicial Magistrate, Shahjahanpur vide report dated 11.08.2016 that he has expired about 15-20 years ago and after having conducted enquiry in that regard, the said report has been submitted, hence appeal of appellant no. 1 Sonpal Singh stands abated, therefore, before this Court only appellant no. 2 Rampal remains for consideration.
4. As per FIR, the prosecution case is that when the informant (PW1) was going on 16.01.1982 at about 5.00 p.m. along with lota to ease herself out and when she reached near the turn of southern ‘med’ of sugarcane field of Suresh Singh, the appellant no. 1 Sonpal Singh son of Gindu Singh and appellant no. 2 Rampal son of Jahan came from the front concealing themselves and Sonpal Singh had caught her waist from behind and had taken her forcibly in the said field where sugarcane was there and told her not to raise alarm. The appellant no. 2 Rampal was continuously threatening her that if she cried, she would be killed, therefore, because of fear she did not raise any alarm and both these appellants had thrown her on the ground and thereafter committed rape upon her. Appellant no. 2 Rampal was holding her hand and had closed her mouth while she was raped by appellant no. 1 Sonpal Singh and thereafter appellant no. 2 Rampal had also committed rape upon her and when Rampal was committing rape, her mouth became free and then she cried loudly, hearing this, Ashok Singh son of Shiv Narain Singh, Nek Pal Singh son of Zalim Singh and Rajju son of Lallu of the village came there and then both the appellants fled towards east leaving her. The said witnesses have seen the occurrence and had saved her from clutches of the accused. She had gone to the police station with her husband to lodge FIR.
5. On the complaint (Exhibit Ka-1), chik FIR was prepared at the police station (Exhibit Ka-4). Case Crime No.16 of 1982 was registered under section 376 IPC against both the appellants on 16.01.1982 at 20.00 hours. The entry of this case was made in G.D. dated 16.01.1982 at report no. 47 which is Exhibit Ka-5. Investigation was assigned to S.I. Ram Charan Singh (PW6), who had conducted the investigation. During investigation, he prepared site plan, which is Exhibit Ka-6. Petticoat of the victim was also taken into possession, recovery memo of which is Exhibit Ka-2. Medical examination report is Exhibit Ka-3 and after having recorded statement of witnesses, he has submitted charge-sheet against the appellants under the above-mentioned sections, which is Exhibit Ka-7.
6. On the basis of evidence on record, charge was framed against the accused-appellant Rampal under section 109 read with section 376 as well as 376 read with section 511 IPC on 01.10.1982 to which he pleaded not guilty and claimed to be tried. Thereafter the victim Phoolmati was examined as PW1, Dr. Meenu Sagar, who conducted medical examination of the victim, has been examined as PW-2, Rajju son of Zalim has been examined as PW-3, who is witness of fact, Nek Pal Singh has been examined as PW4 who is also witness of fact. Thereafter, evidence of prosecution was closed and statement of accused Rampal was recorded u/s 313 Cr.P.C. on 04.01.1983 in which he has stated that the evidence which has come on record is false and has taken the plea of false implication due to village rivalry but no witness has been examined in defence.
7. Based on the above evidence, the trial court has convicted the accused-appellant which has been assailed before this Court.
8. Learned counsel for the appellants has argued that the scribe of the FIR Sri Krishna has not been examined. The appellant has been falsely implicated due to election rivalry. No injury has been found to have been sustained by the victim, which belies the occurrence because if such an occurrence of rape takes place, certainly victim would have suffered injuries on her private part and on other parts of the body, particularly when she was thrown down on the ground. The victim is a married lady. No specimen of vaginal smear was sent for medical examination to establish the perpetrator of crime, therefore, the accused deserves to be acquitted.
9. I have gone through the evidence on record. PW1, who is victim herself has stated that on 25.10.1982 i.e. about nine years ago when she was going to attend nature’s call at about 5.00 p.m. she had left for field of sugarcane of Suresh Singh, which was lying towards east of her house, the accused Sonpal Singh had caught hold of her from behind while the accused Rampal had gagged her mouth and had dragged her inside the field of sugarcane and had committed rape upon her and threatened her that if she cried, she would be killed. While accused Sonpal Singh was committing rape, the other accused Rampal had kept her mouth closed and when accused Sonpal Singh had done dirty work, thereafter Rampal said that he would also do the same work and in the process her mouth became free and she got opportunity to cry loudly, hearing which Ashok Singh, Nek Pal Singh and Rajju came there, then accused fled from there. Thereafter, she came to her house and told all the details to her husband. He got report scribed by one Sri Kishan, who had written the same which was dictated to him and thereafter she had put her signature thereon which is Exhibit Ka-1 and the same was given at Police Station Jalalabad. The police had taken petticoat of her also in his possession and the memorandum, which was prepared of the same, was signed by her. It is further stated by her that she was medically examined. About ten years ago she was married to Ram Ratan and her petticoat is material Exhibit-1 while recovery memo of petticoat is Exhibit Ka-2.
10. In cross-examination, she has stated that between her house and the place of incident there is Kolhu which was located about 2-4 paces away from the ‘Med’ of field of Suresh Singh. When she was going for easing herself out about 10-20 persons were present at Kolhu. From the place of occurrence, the distance of Kolhu would be around 50-60 paces. Thereafter, she had responded to the court on query that the Kolhu was towards west of the field. The place where she had been dragged was towards south which is a very big field having area of about 4-5 bighas and having crop of sugarcane which was not very high. The height of the crop would have been about one hand. It was further stated by her that to the north of sugarcane field, there was crop of Jwar and to the south of it there was crop of Arhar. The accused had come from eastern side while she was sitting facing towards west. She was dragged about 2-3 paces. Both the accused had caught her hands and then within two minutes of her raising alarm, witnesses had reached there. As soon as the accused saw the witnesses coming, Sonpal Singh fled but witnesses had seen him. The witnesses had seen the accused from a distance of about 2-4 paces. He had fled towards eastern direction. She has further stated that Sonpal Singh had not fled towards south. Her clothes had not got torn. She had returned home at about 6.00 p.m. The witness Ashok Singh is son of Bua of Sri Kishan. Nek Pal Singh is cousin brother of Sri Kishan. Raja Ram is Chachiya Sasur. She had spoken to her husband for writing report but he said let the same be scribed by Sri Kishan. Sri Kishan has a godown. At about 8.00 p.m. she had departed for police station accompanied with Jaswant, Ram Chandra, Rakshpal, Raja Ram, Ram Ratan (husband of the victim). Sri Kishan, who had scribed the report, had not accompanied her to the police station nor Ashok Singh and Nek Pal had gone there. She had reached the police station in the night at about 12.00 O’ clock where Chaukidar of the police station was found. She had handed over the written complaint to Munshiji as Inspector was not available there. From the police station at about 2.00 A.M. in the night she was sent to Shahjahanapur in a trolley which belonged to Sri Kishan, where her medical examination was conducted. She had not taken bath in the meantime. Her husband remained with her all along. Near her village, field of accused Sonpal Singh is also situated. She does not know whether Sri Kishan had purchased any field from Thakur of her village. She also does not know whether Sri Kishan was purchasing field from Sonpal Singh. When the accused had come to catch hold of her, they did not have their face covered nor were they having any Lathi. When she was thrown down on the ground, no bungles of her were broken. She does not go out from her house except for the nature’s call. Sonpal Singh used to come to her Jeth’s house for giving clothes, hence she used to recognize him. She had never gone to the field of Sonpal Singh, who was the only son of his father. She does not know anyone of village of Sonpal Singh. She has denied that Sonpal Singh had any animosity with Sri Kishan and because of that, at the instance of Sri Kishan, she was giving false statement. Accused Rampal was resident of village Patiura, which is about half mile away from her house, which is situated in District Hardoi. She was not visiting the house of Rampal but Rampal used to come to her house. She had seen Rampal coming to her house. Her mother-in-law had pointed out that he was Rampal. She knew his name. At the time when he had gagged her mouth, she knew his name. About two months ago prior to this occurrence, her mother-in-law had told her the name of Rampal. On the date of occurrence, Rampal had not come to her house rather he was going from the road/ passage while she was sitting in ‘Dalan’, at that her mother-in-law had told her that Rampal was going. Her ‘Dalan’ was about 2-4 paces away from the road/passage. Rampal used to come to her village for washing of his clothes but had not come to her house. On the day when she had gone for nature’s call, she was alone with a lota. When she was thrown down on the ground, her lota was left there only. By that time, she had already eased herself out in the field of Suresh Singh. The place where she was thrown down on the ground, was about two paces away from the place of defecation. The said field of sugarcane was very dense. When she was being dragged in the field, she did not get any abrasion from the leaves of the crop. Rampal was holding her hand and simultaneously he was also keeping her mouth gagged and she has also shown before the Court as to in what manner she was being carried. She had tried to get herself freed. When dirty work was done with her, her petticoat had become dirty. The place where she was thrown down on the ground, there was little grass existing. She had received injuries on her waist as well as her back but no bleeding took place, only pain was being felt. She was told by the accused that if she cried loudly, she would be killed and nothing else. It was not said “Meri Jan Chillana Mat”. She had not told the Investigating Officer that Sonpal Singh had told her that “Meri Jan Chillana Mat” and she could not tell the reason as to why the same was written by Investigating Officer. In committing rape upon her, Sonpal Singh took just a minute but during this period, she did not remain quiet. It is wrong to say that she was living on the land of Sri Kishan and that she does farming of his field on ‘Batai’. After leaving the police station, at about 6.00 A.M. she reached Sahjahanpur and at about 8.00 A.M. her medical examination was conducted.
11. The statement of this witness is not inspiring much confidence because the same appears to be very unnatural. Her testimony to the effect that one accused was holding her and got her mouth gagged while she was being forcibly dragged inside the field of sugarcane where this offence is said to have been committed and thereafter the said accused continued to keep her in gagged condition till co-accused had committed rape upon her and that thereafter when co-accused had done dirty work, the accused-appellant had also said that he would do the same act and then she got an opportunity to scream loudly because her mouth was freed. When she screamed, then witnesses arrived there and they had seen the accused fleeing from there. It is admitted by her that the accused were not armed with any weapons nor even by a Lathi, therefore, she should not have any apprehension and could easily have cried out before the commission of alleged offence. Therefore, the narration made of this occurrence seems to be unnatural. It has also been stated by her that she was thrown down on the ground where there was little grass and the place where she had defecated, was just two paces away from the place where she was raped, also seems to be very unnatural that a person would do such act close to the place where the excreta would be lying. Further, she has stated that she was thrown down on the ground, she had received injury on her back as well as waist but in medical examination, no such injuries have been found which seems to be a material contradiction.
12. Km. Meenu Sagar has been examined as PW2 who has stated that on 06.11.1982 she conducted medical examination at about 1.00 p.m. of the victim and found no mark of injury on her body as well as on her private part. Vaginal smear was taken and sent to District Hospital for examination. She has proved her report as Exhibit Ka-3.
13. In cross-examination, she has stated that she did not notice any injury on her waist nor on any other part of the body nor did she find any sign of rape. Opinion could be expressed within 24 hours as to whether rape was committed or not or on the basis of vaginal smear report.
14. During the argument, it has not come on record whether any report with respect to vaginal smear was found or not and this witness has testified that she had not noticed any injury either on her body or on her private part which is not in consonance with the statement given by the victim herself as according to her when she was thrown down on the ground, she had suffered injuries on her waist and back.
15. Rajju son of Lallu has been examined as PW3 and he has stated that about 10 months ago at 5.00 p.m. he was near the Kolhu and near him Netpal Singh and Ashok Singh were also present, who all had heard cry of Phoolmati which was coming from south eastern direction from the field of sugarcane, hearing which three of them rushed there and saw both the appellants and Phoolmati. Further, it is stated that he saw that Sonpal Singh had already raped Phoolmati in the said field where she was lying on the ground and Rampal was committing rape and the victim was lying in naked condition. When he challenged the accused, they fled leaving the victim in the said condition and thereafter she set right her clothes and went home and this witness returned to Kolhu.
16. In cross examination, this witness has stated that at the time of occurrence he was at Kolhu and he had reached at the place of occurrence only on hearing of voice of Phoolmati. Kolhu was 100 paces away from the place of occurrence. He had gone to the field of sugarcane straight from the place of Kolhu and within 2-4-6 minutes he had reached there and when he reached there, he saw that Sonpal Singh was holding the hands of Phoolmati and Rampal was doing wrong work. Rampal was holding her legs and was committing rape while Phoolmati told him that Sonpal Singh had already raped her. When he first time reached there, he had seen that Rampal was committing rape upon Phoolmati. It is not that because of shame Phoolmati did not utter anything to him. When he had reached at the place of incident, he had Lathi in his hand but he did not have any quarrel with Rampal and Sonpal Singh. These accused had fled from there just on seeing him. When they were hardly 6-7 paces away from the place of occurrence, the accused fled from there. The crop of sugarcane was of mans’ height. Near the place of occurrence, the field of Sonpal Singh is also situated. Phoolmati is daughter-in-law of his brother and Ram Ratan is his real nephew. The house of scribe is near his own house. He does work of farming. He has denied that due to him belonging to the party of Kishan and others, he was giving false statement. Further, he has stated that at Kolhu, sugarcane was being crushed. There was only one Kolhu and near it, he was sitting. The bangles of Phoolmati had not broken nor her sari was found torn nor soiled.
17. The statement of this witness is also not confidence inspiring because he has given statement contradictory to the prosecution case saying that when he reached there at the cry of victim, he found the accused-appellant Rampal committing rape upon her while as per prosecution case as well as statement of PW1, Rampal could not rape rather was holding her hands and keeping gagged mouth of the victim when she was being raped by co-accused Sonpal Singh and that when Sonpal Singh had finished raping, and the accused-appellant said that he would also do the same act, the victim got opportunity to cry loudly, hearing which the witnesses reached there which included PW3. Therefore, the testimony of PW3 is contrary to the prosecution version. His statement is that when he reached there having lathi with him, he did not even try to catch hold of the accused, which sounds also unnatural. Normal conduct would be for him to immediately chase the accused persons and catch hold up them. He has stated that he simply saw occurrence and when accused went away from there, he returned to Kolhu and the victim went home. Further he has stated that he did not see any soil or any tear on the sari of the victim which also seems to be unnatural that in a Kachcha place where the occurrence is said to have taken place, yet clothes of the victim would not get soiled and torn.
18. Nek Pal Singh has been examined as PW4. He has stated in examination-in-chief that about 10 months ago at about 5.00 pm, he was sitting near Kolhu along with Ashok, Raja Ram and one person of Dhanu caste called Dhanu Tanukool, Phoolmati had gone to attend nature’s call along with lota in the field of sugarcane of Suresh Singh. After sometime, he had heard cry of Phoolmati and thereafter all of them went there and saw that Sonpal Singh was holding Phoolmati and was committing rape upon her, when he challenged the accused, they fled from there and Phoolmati also got up with shame. Thereafter, Phoolmati told him that she was firstly raped by Sonpal Singh and thereafter by Rampal. She also told them that when Sonpal Singh was committing rape, Rampal had gagged her mouth and was holding her hands and when Rampal was committing rape, her mouth was open because of which she could cry loudly.
19. In cross-examination, this witness has stated that they had challenged the accused from a distance of 8-10 paces and when he reached at the place of occurrence, Rampal was committing rape and Sonpal Singh was standing there only. He also did not find the clothes of victim torn.
20. The statement of this witness is also not inspiring confidence because he and PW3 both have stated to have reached the place of occurrence simultaneously and there is discrepancy between their statements because PW4 has stated that when he reached there, Sonpal Singh was holding Phoolmati and was raping her while according to PW3 when he had reached there Rampal was raping and not Sonpal Singh. This witness in cross-examination has also given different version stating that when he reached there for the first time, Sonpal Singh was holding the hands of victim while in examination in chief, he has stated that Sonpal Singh was holding the hands of victim and was also committing rape.
21. After having analyzed the above statements, I find that the version of the prosecution does not stand proved because the prosecution version as per FIR is that when the victim had gone to ease herself out in the sugarcane of Suresh Singh at a little distance from her house, she was caught from behind by Sonpal Singh and at that time Rampal was also accompanying him and both of them had dragged her in the said field where rape was committed upon her by Sonpal Singh and before Rampal could rape her, she had liberty to cry loudly, hearing which the witnesses PW-3 and PW4 reached there and saw the occurrence. On minutely scanning the above testimony, I find that the said version does not stand proved for the reasons which have been disclosed after analysis of the statements made of each witness above. I also find that both the witnesses i.e. PW3 and PW4 who were said to be eye witnesses, are closely related to the victim, therefore, their testimony could be doubtful on this count also and they could give false statement. Their conduct is also not found to be natural in allowing the accused flee away from the place of occurrence despite being armed with a lathi. The conduct of the victim is also not found fair because her version is very unnatural that such kind of rape would be committed upon her at a place where excreta was lying and for other reasons also which have also been given above.
22. In view of the above, the trial court’s judgment is not found in consonance with the evidence on record. The conviction of appellant no. 2 Rampal u/s 376/511 IPC deserves to be set aside and is accordingly set aside, he stands acquitted. The appeal stands allowed.
23. Record reveals that the accused-appellant is on bail, hence his sureties stand discharged.
24. Let a copy of this judgment along with lower court record be transmitted to the trial court for necessary action at his end in accordance with law.
Order Date :- 17.01.2020