Allahabad High Court
Panna vs State Of U.P. on 8 July, 2016
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Case :- CRIMINAL APPEAL No. - 4013 of 2013 Appellant :- Panna Respondent :- State Of U.P. Counsel for Appellant :- K.D. Tiwari Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Vijay Lakshmi,J.
Challenge in this appeal is to the judgment and order dated 13.8.2013 passed by learned Additional Sessions Judge, Court No. 2, Rampur in Session Trial No. 14 of 2012 (State Vs. Panna) arising out of Case Crime No. 1228 of 2011, under Sections 452, 376 and 506 I.P.C., P.S. Patwai, district Rampur whereby the appellant has been convicted and sentenced for 3 years R.I. and fine of Rs. 1000/- under Section 452 I.P.C., 7 years R.I. and fine of Rs. 5000/- under Section 376 I.P.C. and one year R.I. under Section 506 I.P.C.
Heard Sri K.D. Tiwari, learned counsel for the appellant and learned A.G.A. representing the State. Perused the impugned judgment and lower court's record.
The prosecution case, in brief, as unfolded during trial, is that on 29.8.2011 at 10.45 A.M. a report was lodged at P.S. Patwai, district Rampur by the complainant Sukhpal, father of the prosecutrix, with the allegations that on 25.8.2011 at about 2.00 P.M., when the complainant and his wife had gone to Bagar (Rajasthan) for some religious purpose and his 15 years old daughter (prosecutrix) was lying down in the courtyard of his own house, the accused-appellant entered into his courtyard from where he took her inside the room and forcibly committed rape on her. When his daughter raised alarm, the witnesses Ram Phool and Rajpal reached on the spot and saved his daughter. Thereafter the accused ran away from the spot threatening the witnesses to kill them. When the informant and his wife returned from Bagar, his daughter told him about the incident and on the basis of the information given by his daughter, the informant lodged the F.I.R.
The case was registered and investigated and after completion of the investigation the police submitted charge-sheet against the appellant. The case was committed to the sessions court where charges under Sections 452, 376 and 506 I.P.C. were framed against the appellant and the trial proceeded.
In order to prove its case the prosecution examined 7 witnesses in all. P.W. 1 is Dr. Chitra Jauhari, who has medically examined the prosecutrix, P.W. 2 is the informant Sukhpal, father of the prosecutrix, P.W. 3 is the prosecutrix herself, P.W. 4 is Premwati, mother of the prosecutrix, P.W. 5 is Ram Phool, who is said to have reached on the spot after hearing the alarm raised by the prosecutrix, P.W. 6 is S.I. Om Prakash Sharma and P.W. 7 is radiologist Dr. R.K. Sharma.
After completion of the prosecution evidence the statement of the appellant under Section 313 Cr.P.C. was recorded in which he denied all the allegations and stated that due to an earlier dispute with regard to payment of wages, a false case has been lodged by the informant against him.
No defence witness was produced by the appellant.
The learned trial court, after a detailed appreciation of the evidence available on record, found the appellant guilty and convicted and sentenced him by the impugned judgment.
The legality and correctness of the aforesaid judgment has been challenged by learned counsel for the appellant in the instant appeal mainly on the ground that the learned trial court has illegally convicted the appellant without considering the fact that the prosecution case was totally unreliable and untrustworthy. There was no evidence to prove the charges beyond reasonable doubt against the appellant. However, the trial court relying on the sole testimony of the prosecutrix, convicted and sentenced the appellant.
Per contra learned A.G.A. has contended that in case of rape, sole testimony of the prosecutrix is sufficient to convict the accused and no further corroboration is required for this purpose.
Considered the submissions advanced by learned counsel for both the parties.
A careful scrutiny of the evidence available on record shows that the informant and his wife were admittedly not present at the scene of occurrence as both of them had gone to Bagar and had returned to their home in the evening on 27.8.2011. The occurrence is of 25.8.2011. Thus, the statements of P.Ws. 2 and 4, who are the parents of the prosecutrix, are based on the information given to them by their daughter and also by the witnesses Ram Phool and Rajpal, about whom it is said that on hearing the alarm raised by the prosecutrix, they reached at the spot and saw the applicant running out from the spot. Out of the abovesaid two witnesses named in the F.I.R. the witness Rajpal has not been produced by the prosecution and only Ram Phool has been examined as P.W. 5. Thus, the prosecution case mainly rests on the testimony of the prosecutrix and the alleged eye witnesses Ram Phool-P.W. 5.
There is no doubt that in cases of rape, the solitary statement of the victim is sufficient to hold the accused guilty but the quality of such statement should be such, so as to inspire confidence. It should be absolutely trustworthy, unblemished and must be of sterling quality.
The Hon'ble Supreme Court in case of Rai Sandeep Vs. State (NCT of Delhi); (2012) 8 SCC 21 has explained the meaning of "sterling witness" as under :-
"In our considered opinion, the ''sterling witness' should be of a very high quality and calibre whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness."
"Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ''sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
In Hem Raj Vs. State of Haryana; (2014) 2 SCC 395 the Hon'ble Supreme Court has held as follows :-
"In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible, if it inspires total confidence, it can be relied upon even sans corroboration."
"Such weight is given to the proxecutrix's evidence because her evidence is on a par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinise it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it."
In Sadashiv Ramrao Hadbe vs. State of Maharashtra; (2006) 10 SCC 92, the Hon'ble Supreme Court has observed as under : -
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
Now testing the evidence available on record in the instant appeal on the touch stone of law as laid down by the Apex Court in the above cited judgments, it appears that the prosecutrix who has been examined as P.W. 3, has supported the prosecution case in her statement and has proved her statement recorded under Section 164 Cr.P.C. as Ext. Ka. 5. She has stated that at the time of occurrence she was present in her courtyard and was lying down on a cot. At that time the appellant came there and committed rape with her on the said cot. She tried to get free herself and raised alarm on which her uncle Ram Phool and Rajpal reached there. The accused ran away threatening them to kill. When her parents returned from 'Bagar' she told them about the incident and went to police station with her father to lodge the report. The police took her for medical examination to District Hospital and her statement under Section 164 Cr.P.C. was also recorded. During her cross examination she has stated that she knew the appellant since prior to the occurrence and her family and appellant's family had visiting terms with each other. She has stated that she has one elder unmarried brother who is one year elder than her. She has also stated that the Daroga Ji had taken her clothes which she was wearing at the time of occurrence.
However, the aforesaid statement of prosecutrix appears to be in total contradiction with the statement of her father and mother as the father has categorically stated that the prosecutrix is eldest amongst their eight children. The mother of the prosecutrix-P.W. 4 has stated that her daughter never informed her that the accused had threatened to kill any one. Though, the mother has stated that she had given the clothes of the prosecutrix to Daroga Ji. However, the statement of prosecutrix and her mother does not find support with the statement of I.O. who has stated as follows :
"eSus oknh ls ihfM+rk ds diM+s ekaxs Fks rks mlus crk;k Fkk fd diM+s /kks fn;s gSA mlus diM+s ugh fn;s vkSj u gh mlus diM+s eq>s fn[kk;sA"
The mother of the prosecutrix has stated that when they returned, their daughter had shown her cloth to them. That clothes were torn whereas the I.O. has stated that the prosecutrix had neither shown any injury to him during her statement recorded under Section 161 Cr.P.C. nor she had given her cloth to him.
The only eye witness Ram Phool examined as P.W. 5 has stated that when he reached the spot after hearing the shrieks of the prosecutrix, he saw the appellant with the prosecutrix in a compromising position inside the room. When he challenged him, he ran away from the spot threatening him to kill. When he asked from the prosecutrix about the occurrence she informed that she was lying down on a cot on the Chaupal from where the accused took her inside the room and committed rape on her.
Thus there appears material contradictions between the statement of the prosecutrix and the eye witness with regard to place of occurrence. As per the prosecutrix version she was lying on a cot kept in the Chaupal/courtyard when the appellant came and committed rape on the said cot itself, whereas according to the witnesses the rape was committed inside the room. Thus, the placed of occurrence also appears to be doubtful.
There is delay in lodging the F.I.R. The occurrence is said to have taken place on 25.8.2011 at 2.00- P.M. (noon) but the F.I.R. has been lodged after expiry of 4 days on 29.8.2011. According to the informant he had returned from Bagar on 27.8.2011 but he has not assigned any reason as to why the F.I.R. was lodged on 29.8.2011 despite the fact that P.W. 5 has stated that he had informed the father of the prosecutrix about the occurrence immediately. There is no explanation for such delay in lodging the first information report.
The only eye witness Ram Phool has stated that the prosecutrix had sustained several injuries during the occurrence and blood was oozing out from all these injuries and her clothes also got stained with blood but the medical examination report of the prosecutrix shows that the doctor has not found any injury on her body.
The aforesaid statement of Ram Phool is in total contradiction of the statement of I.O. who has stated as follows :
"xokg jkeQwy us ihfM+rk ds pksVksa okyh ckr ugha crkbZ FkhA"
The prosecution story also becomes doubtful in view of the following statement of the sole eye witness-P.W. 5 : -
"tc uhjt us 'kksj epk;k Fkk 'kksj dh vkokt ij eSa o xkao ds cgqr lkjs yksx igqps rks dejs dk njoktk cUn FkkA xkao okyksa us njoktk rqM+ok;k FkkA"
The prosecution story becomes wholly doubtful, also in wake of the following statement of the first informant - P.W. 2 Sukhpal who has stated that the F.I.R. was written under the dictation of S.O. Saheb : -
"Fkkus lqcg 10&11 cts igqWpk FkkA rgjhj eSus Fkkus es cSBdj fy[kh FkhA nhoku th us cksyh Fkh fQj dgk S.O. Lkgc us cksyh Fkh eS fy[krk x;kA eSus dqN viuh ethZ ls fy[kk Fkk eS ugh crk ldrk D;k eSus viuh ethZ ls fy[kk Fkk D;k njksxk usA"
Thus the aforesaid statement of the first informant makes the F.I.R., which is the foundation stone of a criminal case, wholly unreliable.
Some more instances making the prosecution story unworthy of credence are that P.W. 2 - first informant has stated that his daughter never told him about her raising alarm. He has also stated that the witnesses Rajpal and Ram Phool had not told anything about it. P.W. 2 has stated that the prosecutrix had also not informed him that after how much time the witnesses Rajpal and Ram Phool had reached the spot. P.W. 2 has admitted that he did not see any injury on the body of his daughter.
Moreover, the following statement given by P.W. 2 suggests that the prosecutrix was caught alongwith the appellant :
"?kVukLFky eSusa ns[kk gSA yM+dh o ?kj okyks us crk;k Fkk tc yM+dh idM+h xbZ FkhA"
The doctor (P.W. 1) who has examined the prosecutrix has stated that during medical examination she did not find any injury on the body of the victim. Her breast were found well developed and her hymen was found old torn. No spermatozoa, either dead or alive, was found in her vaginal smear so no opinion could be given about rape by the doctor.
The learned trial court has convicted the appellant mainly on two grounds :
1. No woman would come to court to depose at the cost of her prestige
2. As the prosecutrix is minor, even assuming that she was a consenting party, her consent was immaterial.
The question whether the prosecutrix was consenting party or not could have been relevant if her statement was found to be reliable and trustworthy. It has been seen earlier that the statement of the prosecutrix and also other witnesses produced by the prosecution suffers from several contradictions, omissions, embellishment and improvement making the prosecution story totally unreliable. Hence it does not make any difference whether she was consenting party or not or whether she was a minor i.e. 17 years of age at the time of occurrence. The first ground that no woman would come to court to depose at the cost of her prestige also looses its importance in wake of doubtful prosecution story.
Considering the facts and of this case and the apparent contradictions, embellishments and improvements in the statements of the witnesses it cannot be said that the prosecution has successfully proved its case against the appellant beyond reasonable doubt. The trial court has relied on the statement of the prosecutrix only in view of the legal position that no self respecting woman would come forward in a court at the cost of her honour, ignoring the anomalies and discrepancies in the prosecution case.
In case Raju vs. State of Madhya Pradesh; (2008) 15 SCC 133, the Supreme Court has held as under :-
"It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
In Radhu Vs. State of M.P.; (2007) 12 SCC 57 the Hon'ble Apex Court has observed that :
"The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
In wake of the aforesaid judgments of the Hon'ble Apex Court it cannot be said that the prosecution has led the evidence of sterling quality in this case.
For the aforesaid reasons the impugned judgment is liable to be set aside the the appeal deserves to be allowed.
Accordingly, this appeal is allowed and the impugned judgment dated 13.8.2013 passed by the trial court is hereby set aside. The appellant is in jail. The appellant shall be released forthwith if not wanted in any other case.
Let a copy of this judgment be sent to the courts below forthwith for immediate compliance.
Dated : July 08, 2016.
S.B.