Allahabad High Court
Rishi vs The State Of U.P. on 19 February, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 27 Case :- CRIMINAL APPEAL No. - 1217 of 2015 Appellant :- Rishi Respondent :- The State Of U.P. Counsel for Appellant :- S. Lal,Abhilasha Singh, Ashutosh Yadav, V.K. Jaiswal Counsel for Respondent :- Govt.Advocate Connected with Case :- CRIMINAL APPEAL No. - 1219 of 2015 Appellant :- Raju Goswami Respondent :- The State Of U.P. Counsel for Appellant :- S. Lal, Abhilasha Singh, Ashutosh Yadav, Rajiv Lochan Shukla, V.K. Jaiswal Counsel for Respondent :- Govt.Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Since both the afore-captioned criminal appeals have been filed by the appellants challenging the judgment and order dated 17.03.2015 passed in the Sessions Trial No. 52 of 2014 (State vs Rishi and another) arising out of the same case crime number, hence they are being decided by this common order.
2. Challenge in these appeal is to the judgment and order dated 17.03.2015 passed by the Fast Track Court, Court No. 1 (Offences against women)/ Additional Sessions Judge, Court No. 9, Ghaziabad in Sessions Trial No. 52 of 2014 (State vs Rishi and another), under sections 376-D and 506(2) IPC, police station Kavinagar, district Ghaziabad, whereby both the accused-appellants have been convicted and sentenced to twenty years' rigorous imprisonment and a fine of Rs. 25,000/- each under section 376-D and two years imprisonment and a fine of Rs. 5000/- each under section 506(2) IPC with default stipulation.
3. Filtering out the unnecessary details, the prosecution case is that a written report was lodged by the victim on 31.08.2013 stating that she is resident of Negura, police station Dhanapur, district Varanasi and was working in Allan Factory near Atma Ram Steels, Ghaziabad, who was tenant in the house of Gyani Yadav for the last five years. On 30.08.2013 when after finishing her work, she was returning to Bamhota at about 7.00 p.m. at Atma Ram Steels, accused Rishi, son of the land-lord and Raju Goswami, nephew of Bhupendra Goswami came on motorcycle. They compelled her to sit on the motorcycle, took her via web-city towards the jungle at the tubewell, where both raped her. Both the appellants have threatened to kill her brothers, if she would tell the incident to anybody, hence due to fear, she did not narrate the occurrence to anybody. On the date of the report, she dialed at '100' number. On the basis of the report, investigation was conducted by Inspector Smt. Narendri Saini on 31.10.2013. She came to Kavi Nagar police station, she copied the chik report, G.D. in the case diary and recorded the statement of the Head Moharrir in the case diary. The victim was sent for medical examination. The accused-appellants could not be apprehended on that day. On 01.09.2013, the medical report and supplementary report were copied in the case diary. The statement of the victim was recorded at her house. After that, the spot was inspected along with the victim and her brother. After which the site plan was prepared and proved as Ext. Ka-9. Further this witness recorded the statements of Jaipal Singh, Jagdish and Raju. On 03.09.2013, the pathology report of the victim was received and application was moved for recording the statement of the victim under section 164 Cr.P.C. on 05.09.2013, the accused-appellant Raju Goswami was arrested and his statement was recorded. On 09.09.2013 the pathology report and supplementary reports were received, which were copied in the case diary. The robkar of surrender of the accused Rishi was received. The statement of the victim recorded under section 164 Cr.P.C., was perused by this witness. The statement of the accused Rishi Yadav was recorded in District Jail after obtaining permission from the concerned Magistrate. The clothes of the victim were sent to the Forensic Laboratory for chemical examination. The statement of Dr. Prachi Pal, PW-3 was also recorded. PW-7 is S.I. Neelam, who took into possession the clothes of the victim and prepared the memo, which was proved as Ext. Ka-2 and the clothes were proved as material Exts. 1 and 2.
4. The prosecution has examined as many as seven witnesses. PW-1 is the victim, who proved the written report as Ext. Ka-1. The victim has also proved her statement recorded under section 164 Cr.P.C. as Ext. Ka-3. PW-2 is Raju, the brother of the victim, who has scribed the written report. Dr. Prachi Pal, PW-3 medically examined the victim. She did not find any marks of injury on the person of the victim, except a small laceration on the internal part of the lower lip. This witness proved the medical report as Ext. Ka-4 and supplementary report as Ext. Ka-5. PW-4 Constable Ram Samajh Rana prepared the chik report, which was proved as Ext. Ka-6 and the copy of the G.D. as Ext. Ka-7. PW-5 is S.I. Anju Singh Tewatiya, who took over the investigation after transfer of the Investigating Officer Smt. Narendri Saini, PW-6. She perused the case diary, recorded the statements of S.I., Neelam, lady Constable Shalu Malik and submitted the charge sheet, which was proved as Ext. Ka-8. The evidence of PW-6 Smt. Narendri Saini, PW-7 S.I., Neelam has been discussed earlier. The report of the Forensic Laboratory is Ext. Ka-10.
5. After close of prosecution evidence, the accused persons were examined under section 313 Cr.P.C., who denied the occurrence and submitted that they had been falsely implicated.
6. The learned lower court after hearing the learned counsel for the parties and perusal of the record awarded the sentence as mentioned in para-2 of the judgment.
7. Feeling aggrieved the accused have come up in appeal.
8. I have heard Shri V.K. Singh and Shri Rajiv Lochan Shukla, learned counsel for the appellants, learned Additional Government Advocate and perused the trial court record.
9. It has been submitted on behalf of the appellants that there is inordinate delay in lodging the FIR, hence the whole prosecution story is concocted and cannot be relied upon, inasmuch as, as per copy of G.D., Ext. Ka-7, on 31.08.2013 at 17.30 hours report was submitted, whereas rape is said to have been committed on the victim on 30.08.2013. Admittedly, the victim is a married lady having two children, who is staying separately from her husband. As far as the delay in lodging the FIR is concerned, the victim PW-1 has stated that since the appellant Rishi had threatened her that if she would tell this fact to anybody, he would kill her brothers and due to fear she did not tell about the incident to anybody on that date. Next day, she dialed at '100' number. How she suddenly mustered courage on the next day stands unexplained. As far as the delay in lodging the FIR is concerned generally in cases of rape, delay in lodging the FIR is not of much consequence specially in cases of rape with young girls, in which the reputation of the family is at stake. The possibility of difficulty arising in marrying the girl is also there, but in this particular case, neither the victim nor her brother has said that the reputation of the family was at stake. On the other hand, the victim has stated that since the accused Rishi had threatened to kill her brothers, she was apprehensive and did not report to police on the same day, but in her cross-examination the victim PW-1 has stated that she came back home at about 8 p.m. As soon as she came back she dialed '100' number, at which police came to her house in a Gypsy. Changing her statement in her next breath, she has stated that the police came on the next day. In the night she had slept due to fear. As per victim, the report was scribed by her brother Raju, PW-2, who has stated that he wrote whatever was dictated by him by his sister. He has stated that on the day of occurrence, he returned home at 9.00 p.m. and saw that his sister was sleeping in the house along with her children. It did not appeal to human conscience that if a lady had been raped against her wishes by two people how immediately after the incident she could come home and go to sleep without talking to anyone in the house. Further the conduct of the victim is of the more suspicion, inasmuch as her brother Raju PW-2 has stated that on the next day, the victim did not go on work. She packed her tiffin and said that she was having a headache. Next day his sister told him about the occurrence when he returned from duty. On the next day, she dialed '100' number when the police rushed to his house, the victim and her brother were taken by the police to the police station. The report was dictated at the police station by the victim to her brother. It is not the case of the prosecution that either the victim in her statement before the trial court or under section 164 Cr.P.C. has stated that the accused were armed with any weapon, hence I do not think, threat of unarmed person would have such an affect on a lady being raped against her wishes that she would keep silent for 24 hours and come back home and immediately go to sleep in her house. Thus, besides the delay in FIR, the whole manner in which the matter is said to have been reported to the police becomes doubtful.
10. There is no doubt that conviction can be based on the sole testimony of the prosecutrix. In 2005(15) Supreme Court Cases 566, Tameezuddin alias Tammu vs State (NCT of Delhi), the Hon'ble Apex Court has held that it is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable. Thus, evidence of the victim and the documentary evidence and her statement recorded under section 164 have to be examined in the aforesaid light.
11. The statement of the victim recorded under section 164 Cr.P.C. is a previous statement of the victim. A fairy tale type of story like a drama has been narrated by the victim in her statement under section 164 Cr.P.C.
12. As far as the statement of the victim recorded before the trial court is concerned, although in her examination-in-chief, she has supported the prosecution version, but in cross-examination, this witness has stated that she could not recognize the faces of the persons whom she met on the motorcycle. She was pushed by one hand and forced to sit on the back seat of the motorcycle. She could not properly sit on the motorcycle, but she caught the clothes of the person driving the motorcycle from behind. She shouted for help, but no body came to her rescue. After travelling for about ½ km, the other person was met, who could also not be identified by this witness. Thus, as per version of the victim, she could not identify either of the two appellants. Regarding the identity of the accused, she has stated that she took the names of Rishi and Raju on the telling of the villagers because Rishi is the son of her landlord Gyani Yadav and the other accused-appellant Raju Goswami belongs to the village of Gyani Yadav and she had full suspicion that both the persons, who raped her, were these two persons. She admitted that she was having a mobile at the time of occurrence, but she stated that since she had no balance in the mobile, she could not dial '100' number, but there is nothing on record to show that the accused made any attempt to snatch her mobile because it cannot be said that the accused had knowledge that the victim was having no balance in her mobile.
13. Counsel for the appellants has submitted that '100' number is toll-free number and no balance is needed to dial '100' number.
14. This witness has gone to the extent of stating that she dictated the written report to her brother, who did not read out the written report to her. PW-2 Raju is a brother of his own sort, inasmuch as surprisingly he did not know, where the children of his sister were studying. He did not know the ages of both the children.
15. In (2009) 12 Supreme Court Cases 541, Musauddin Ahmad vs State of Assam, the Hon'ble Apex Court has laid down that if there are serious contradictions in the deposition of the victim before the court and her statement recorded under section 164 Cr.P.C. and the conduct of the victim, consent can be inferred.
16. As far as the laceration on the inner side of the lower lip of the victim is concerned, in (2007) 12 Supreme Court Cases 57, Radhu vs State of Madhya Pradesh, the Hon'ble Apex Court has held that absence of injuries on the private parts of the victim will not by itself falsify the case of rape nor construe as evidence of consent. Further it has been held that bruises, abrasions and scratches on the victim specially on the fore-arms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The Hon'ble Apex Court has also held that the courts should, at the same time, bear in mind that false charges of rape are not uncommon. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. Thus, the court is left with the sole unreliable and shaky testimony of the prosecutrix and the medical evidence that the victim had a laceration on the inner lower lip, but this mark of injury by itself is not sufficient to establish rape or hurt specially when the evidence of the prosecutrix is not found to be not trustworthy and shaky.
17. Another reason to disbelieve the victim and prosecution theory is that the victim has admitted and even stated in her written report that she was tenant in the house of Gyani Yadav, the father of accused Rishi and she has also stated that Raju Goswami is nephew of Bhupendra Goswami, who is resident of Bamhota. The mentioning of these facts itself is speaking volumes because in cross-examination PW-1 the victim has stated that she knew both the accused-appellants. She was tenant in the house of Gyani Yadav, whose son was Rishi and Raju Goswami belongs to the village of Gyani Yadav. The brother of the victim, namely, Raju has admitted that six of his family members were residing in the house of Gyani Yadav and they were tenant for about five years in that house. Although he has denied that they did not pay the complete rent, but has admitted that they left the house in September.
18. Thus, the aforesaid factors go to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to record the finding of guilt against the accused-appellants. The conduct on the part of the prosecutrix i.e. omission to make a discloser at the earliest opportunity and element of artificiality and unnaturalness in the story as put forth by the prosecutrix. All the aforesaid circumstances make it abundantly clear that the prosecution has miserably failed to prove the case beyond reasonable doubt against the accused-appellants. The Investigating Officer was put certain contradictions and omissions, which also come within the purview of contradictions, which are also fatal for the prosecution case. As per Raju, PW-2, the brother of the victim, the report was dictated by the victim inside the police station to Raju, PW-2, whereas PW-6 Inspector Smt. Narendri Saini has stated that the written report was handed over to her at the residence of the victim itself when the victim had dialed '100' number and the police reached her house. The victim is not sure whether the accused were on two motorcycles or on one motorcycle. The statement of the victim is wholly unreliable and does not inspire confidence. The Forensic Laboratory report, Ext. Ka-10 did not also come to the rescue of the prosecutrix.
19. Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused Rishi and Raju Goswami, and as such the accused are entitled to be acquitted and the appeal is liable to be allowed.
20. Hence, the impugned judgement of conviction and sentence dated 17.03.2015 passed by the Fast Track Court, Court No. 1 (Offences against women)/ Additional Sessions Judge, Court No. 9, Ghaziabad in Sessions Trial No. 52 of 2014 (State vs Rishi and another), under sections 376-D and 506(2) IPC, police station Kavinagar, district Ghaziabad is hereby set aside.
21. Accordingly, both the appeals are allowed.
22. The appellants-Rishi and Raju Goswami are in jail. They shall be released forthwith unless wanted in any other case. The provision of Section 437-A Cr.P.C. shall be complied forthwith.
23. Let a copy of this order be sent to the trial court concerned.
Order Date :- 19.2.2016 Sazia