Allahabad High Court
Pradeep Kumar vs State Of U.P. on 29 March, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. -27 Case :- CRIMINAL APPEAL No. - 759 of 2013 Appellant :- Pradeep Kumar Respondent :- State Of U.P. Counsel for Appellant :- Rajesh Dwivedi, Manoj Srivastava, Satyam Singh, Shiv Nath Singh, Yadvendra Dwivedi Counsel for Respondent :- Govt. Advocate, A.K.Singh, P.S. Yadav Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgment and order dated 31.01.2013 passed by the learned Additional Sessions Judge, Court No. 8, Kanpur Dehat in Sessions Trial No. 419 of 2009 (State of U.P. Vs Pradeep Kumar and another) arising out of Case Crime No. 191 of 2009, under sections 363, 366 IPC, police station Shivkali, district Kanpur Dehat, whereby the appellant Pradeep Kumar has been convicted and sentenced to seven years' rigorous imprisonment and a fine of Rs. 1000/- each under sections 363, 366, 376 IPC with default stipulation.
2. Filtering out the unnecessary details, the prosecution case in brief is that a written report was given by the informant Sri Ram stating therein that he is the resident of village Dhakanpurwa, police station Shivkali, Kanpur Dehat. His daughter, who was studying in class 10 in Baghpur Vidyapeeth, was alone in the house. The accused Pradeep Kumar, brother-in-law (sala) of Narendra, son of Vijay Lal, resides in the same village. Accused Pradeep was residing at the house of Vijay Lal for about a year. On 26.05.2009 at about 10.00 a.m., the accused enticed away the victim. In enticing away of her daughter, Vijay Lal, Fauji Lal, who is brother-in-law of Vijay Lal, Pradeep Kumar and his mother Smt. Surja Devi were involved. Keshav and Shiv Balak have seen the accused with the victim outside the village. He has a suspicion that his daughter will be in Akbarpur. He made a hectic search of his daughter, but could not be traced out.
3. On the basis of written report, Ext. Ka-1, a case was registered at 1.30 PM on 02.06.2009 against accused persons Pradeep Kumar, Vijay Lal, Fauji Lal and Smt. Surja Devi under sections 363, 366 IPC. After the registration of the case, the investigation of the case was entrusted to S.I., Aditya Narain, who recorded the statement of the informant Sri Ram, inspected the spot and prepared the site plan, which was proved as Ext. Ka-8. On the next day, i.e. 03.06.2009, he recorded the statements of witnesses Manju, Shiv Balak and arrested the accused Pradeep Kumar and Vijai Lal and recorded their statements. He recovered the victim from their possession and prepared the recovery memo. He also took into possession the clothes, which the victim was wearing, which he proved as Ext. Ka-9 and Ka-10. On 04.06.2009, he recorded the statements of witnesses Rani and Sri Ram and prepared map of the place where the aforesaid items were taken into possession, Ext. Ka-11. On 09.06.2009 he copied the medical report and supplementary medical report. On 10.06.2009 after perusing the statement of the victim under section 164 Cr.P.C. he added section 376 IPC. On 13.06.2009, he arrested the accused-Fauji Lal and recorded his statement. After completing the investigation, on 20.06.2009 he submitted the charge sheet, which was proved as Ext. Ka-12.
4. In support of its case, the prosecution has examined as many as seven witnesses. PW-1 Shri Ram, the informant. PW-2 is the victim. PW-3 is Dr. Manisha Tiwari. PW-4 is Constable Moharrir, Indrapal Singh. PW-5 is S.I., Aditya Narayan. PW-6 is Dr. Harimohan Singh and PW-7 is Satish Chandra Pandey.
5. The informant PW-1 has deposed that the occurrence is said to have been taken place on 27.05.2009 at 10.00 a.m. At the time of occurrence, her daughter was studying in class 10 at Baghpur Vidhyapeeth. The age of his daughter was about 16 years. On the day of occurrence her daughter was alone in the house and he and his wife were in the field. He has two other daughters, who are married. Narendra, son of Vijay Lal resides near his house. Brother-in-law of Narendra, Pradeep lives in the house of Vijai Lal for about a year. Mother of Pradeep namely Surja Devi used to come to the house of Vijai Lal. On the date of occurrence at about 10.00 a.m., his daughter was enticed away by Pradeep Kumar, Vijai Lal, Fauji lal and Surja Devi. He kept on searching his daughter for about 4-5 days. Due to defamation in the society, he did not lodge the report. When his daughter could not be traced out, then the report was lodged. This witness has proved his written report as Ext. Ka- 1. This witness has further stated that the police arrested the accused Pradeep Kumar and Vijai Lal from the Aliyapur Petrol Pump along with victim. This witness has also stated that the occurrence took place on 27.05.2009, but due to mistake, 26.05.2009 has been written.
6. PW-2 is the victim of the case. She deposed that the occurrence has taken place at 10.00 a.m. on 27.05.2009. Only Pradeep has come to her house and taken her to the house of Narendra where Vijai Lal, Fauji Lal, Anek Ram and Surja Devi were present. They took her to Akbarpur. She is in high school. They took her to Akbarpur in Marshal Jeep. In Akbarpur, Pradeep, Vijai Lal, Fauji Lal and Anek Ram committed rape on her. She knows the meaning of rape. They committed rape forcibly. After 5-7 days the police recovered her from the hut near the petrol pump. At that time police also arrested Pradeep and Vijai Lal. When she was recovered, her mother came there along with police. Her medical examination was conducted at the District Hospital, Mati. Her statement was also recorded under section 164 Cr.P.C., which she proved as Ext Ka-2.
7. PW-3 is Dr. Manisha Tiwari. She deposed that on 04.06.2009 she was posted as Emergency Medical Officer at District Women Hospital, Akbarpur, Kanpur Dehat. On that date, she had medically examined the victim, who was brought by lady constable Urmila Singh. On internal examination, this witness has not found any injury on the private part of the victim. Her hymen was old healed. Her vagina admits two finger easily. For examination of spermatozoa, two slides were prepared and for age determination, the victim was sent to District Hospital, Akbarpur for x-rays of elbow, wrist and knee. This witness has prepared the medical report under her own handwriting and signature and proved the same as Ext. Ka-3. For pathological test, reference slip was prepared, which was proved as Ext. Ka-4. As per pathologist report, no alive or dead spermatozoa was seen. After the receipt of x-ray report, supplementary report was prepared, according to which the age of the victim was found to be 16 years. This witness has further opined that no definite opinion about rape can be given. This witness has also proved supplementary report as Ext. Ka-5.
8. PW-4 is Constable Muharrir Indrapal Singh. He deposed that on 02.06.2009 he was posted as Constable Clerk at PS Shiv Kali. On that date on the basis of the written report of the informant Sri Ram, he prepared the chik FIR at case crime No. 191 of 2009, under sections 363, 366 IPC at 1.30 p.m. on 02.06.2009 and made necessary GD entries vide report No. 31, which he proved as Exts. Ka-6 and 7.
9. PW-6 is Dr. Hari Mohan Singh, who deposed that on 04.06.2009 he was posted as Senior Consultant Radiologist in the District Hospital, Akbarpur. On that date the x-rays of elbow, wrist and knee of the victim was conducted under his supervision. There was fusion on the bone of elbow. Bones of wrist and knee were not fused. This witness has proved the x-ray report as Ext. Ka-13 and x-ray plate as material Ext. 1.
10. PW-7 is Satish Chandra Pandey, Principal of Dayanand Vishal Singh, Higher Secondary School. He deposed that the victim obtained admission in class-IX on 20.07.2007 and in the year 2009 she passed out high school examination from his school. Her date of birth in the Admit Card and also in scholar register is 08.03.1993. He jointly proved scholar register and transfer certificate as Ext. Ka-14.
11. The evidence of PW-5, S.I., Aditya Narain has already been discussed above.
12. After closing of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which he denied the occurrence and stated that he has falsely been implicated in the case due to enmity. He has produce DW-1 Shiv Balak in his defence.
13. However, DW-1 has stated that on the date of occurrence i.e. 26.05.2009, he was not present at the village but he had gone to his in-laws house Gauri Abhaypur. He does not have any knowledge about this case.
14. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgement.
15. Feeling aggrieved, the accused has come up in appeal.
16. Heard Shri Satyam Singh learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.
17. Learned counsel for the appellant has vehemently submitted that there is inordinate delay in lodging the FIR, inasmuch as according to the prosecution case, the occurrence took place on 26.05.2009 at 10.00 a.m., whereas the report of the incident was lodged after an inordinate delay on 02.06.2009 at 13.30 hours. The distance of the police station from the place of occurrence being 12 kms.
18. On the other hand learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed.
19. So far as the delay in lodging the FIR is concerned, in the FIR Ext. Ka-1, it has been stated that the informant kept on tracing his minor daughter till 02.06.2009 and when his daughter could not be traced out, then he lodged the FIR.
20. As far as the evidence of PW-1, Sri Ram is concerned, he is the informant, who has stated that he kept on tracing his daughter for 5-6 days in his relations prior to this he did not lodge a missing report. He has admitted that when the girl left the house, she took some clothes and must have taken the money, which she was having with her, but did not take any jewellery as it was not with her.
21. Further as regards delay, when PW-1 Sri Ram was cross-examined on this point, he stated that he met Shiv Balak and Keshav on the date of incident and they had narrated the informant what they had seen, but in spite of this he filed the report only on 02.06.2009 because the matter of repute of family was involved. There is delay of about 7 days in lodging the FIR, which is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only makes the prosecution case improbable to accept, but also makes the explanation wholly untenable in law, which cannot be accepted. Delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted, specially when the reasons are erroneous. This delay in lodging the FIR of 7 days is not explained because when the prosecutrix was missing from home, in such situation, it was normal expectation that either of the parents would definitely lodge a missing report at the police station, which was not done. This action of PW-1 Sri Ram really throws a great challenge to common sense. The principle that the parents suffered from trauma and the constraint of social stigma is not acceptable, inasmuch as the victim at that time was nowhere in the scene. It was the father, who was required to inform the police about the missing of his grown up daughter. The fact about social stigma is not acceptable as has been laid down by the Hon'ble Apex Court in the case of Md. Ali @ Guddu vs State of U.P. reported in (2015) 3 Supreme Court Cases (Criminal) 82. Thus, the delay in lodging the FIR is fatal for the prosecution and cast a shadow of doubt on the prosecution case.
22. As far as the offence is concerned, as per the FIR, Vijay Lal, Fauji Lal, Surja Devi and Anek Ram assisted Vijay Lal and Pradeep in taking away the girl, that incident was witnessed by Shiv Balak and Keshav, although independent witnesses were available and had seen the occurrence, but they were withheld by the prosecution for the reasons best known to them.
23. It is trite law that while relying solely on the testimony of the prosecutrix, the court is duty bound to examine such testimony minutely, carefully and with care and caution, and if there is any doubt, the court must immediately look for corroboration from witnesses, medical evidence or other scientific evidence.
24. The Hon'ble Apex Court in the case of Tameezuddin alias Tammu vs State (NCT of Delhi) reported in (2009)15 Supreme Court Cases 566, has observed as follows:
"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 story is indeed improbable."
25. PW-1 informant Sri Ram has not seen either the accused taking away his daughter or nobody committing rape on her. This witness has been changing his version time and again because his statement was recorded separately in Sessions Trial No. 462 of 2010 pertaining to the co-accused Surja Devi and others, who were acquitted by the trial court vide the impugned judgment. Sri Ram, PW-1 has stated that Pradeep and the victim did not talk to each other from before the incident, but in cross-examination on 29.07.2010, this witness has stated as follows:
"eqfYte iznhi esjk ikfjokfjd fj'rsnkj gSA esjs ls igys ls bldk vkuk tkuk FkkA eq>s bu nksuksa ds izse lEcU/kksa dh igys ls tkudkjh ugha FkhA"
Thus, this witness has contradicted himself not only once, but many times.
26. As regards enmity, this witness has admitted that Pradeep was living with Vijay Lal. He had asked Vijay Lal many times to turn out Pradeep from house because Pradeep was having ill eye towards his daughter, but Vijay Lal did not turn out Pradeep, due to which he felt very bad. He has admitted that when the girl left the house, he was not at home, his wife did not see the girl leaving the house, but her brother had seen the girl leaving the house. He has admitted that Pradeep is the brother-in-law (sala) of son of Vijay Lal. Further this witness has stated that Surja Devi and Anek Ram took his daughter from his house. Shiv Balak had only told him that his daughter had fled away from house. He had not told him, who took away the girl and none was present in his house when the girl fled away. Contradicting this witness PW-2 has stated that she was taken away by Pradeep, Vijay Lal, Fauji Lal, Anek Ram and Surja Devi. They had come by Marshal jeep to her house. They had taken her on the pretext of taking her on outing after asking her brother, whereas her father has stated that no family members was present when the victim was left her house. PW-1 Sri Ram, father of the victim has stated that the victim was weak in study and she failed twice in class 1, whereas the victim has stated that she never failed in any class. Father of the victim has stated that the police of police station Shivli had detained his daughter at the police station 3 days prior to lodging his report. He has further stated that no body told him as to who took his daughter. In his next breath, he has stated that Surja Devi and Anek Ram took his daughter from his house. He has further stated that he named Surja Devi and Anek Ram in the FIR because they used to visit the house of Vijay Lal, but Surja Devi and Anek Ram never visited his house, nor they ever talked to the victim nor Surja Devi and Anek Ram took his daughter anywhere. In his next breath, he has stated that Shiv Balak had told him that Surja Devi and Anek Ram were seen with his daughter, but he had named Surja Devi and Anek Ram in the FIR on the basis of suspicion. Further he has stated that Pradeep is brother-in-law (sala) of Nadrenda and Vijay Lal is the father of Narendra. These delicate relatedly relatives would commit such an offence together with each other is not digestible and palatable.
27. Coming to the statement of PW-2 the victim, she has stated that only Pradeep come to her house, who had taken her to the house of Narendra, where Vijay Lal, Fauji Lal, Anek Ram and Surja Devi were present. They took her Ambarpur, where Pradeep, Vijay Lal, Fauji Lal and Anek Ram raped her. Further this witness has stated that Narendra is part of her family. She has further stated that in 2 hours she reached Ambarpur with Pradeep. One night she stayed in the house of Pradeep from there on her own accord she went with Pradeep. Thus, she has stated as follows:
"eSa iznhi ds lkFk 2 ?k.Vs esa vEcjiqj igqWap xbZ FkhA ,d jkr iznhi ds ?kj :dh FkhA eSa fQj ogkWa ls viuh ethZZ ls iznhi ds lkFk pyh vkbZA"
28. It appears that initially this witness has some love for Pradeep because she has stated that presently she was not interested in Pradeep. She did not love with him. She has also stated that Vijay Lal and Fauji Lal did not go with her. They reached later on. She had left her house with Pradeep. This witness has also undergone the test of cross-examination, in which she has stated that on the way all the people did not assault her. Anek Ram locked her in his room. All the five family members came in room, initially Pradeep raped her and after that all the five raped her. When she raised hue and cry, the villagers came there. This statement is not digestible and is improbable to rely on. Further the victim has stated that even the police person had raped her, but she did not know his name. When she was kept at the police station, she was raped on one day. Anek Ram did not rape her except in the house. She has stated that while Vijay Lal was raping her, she fled away from the house of Anek Ram. She had come to a village, but the police arrested her along with Vijay Lal and Pradeep. Thus, a new story has been introduced that while she was detained at the police station, she was raped by a police person also. This fact has also been mentioned in Ext. Ka-2, which is the statement of the victim recorded under section 164 Cr.P.C.
29. In AIR 2010 Supreme Court 3813, Musauddin Ahmed vs State of Assam, the Hon'ble Apex Court has held that if there are serious contradictions in the deposition of the victim in court and her statement recorded under section 164 Cr.P.C., it can be inferred that it was clear cut case of consent.
30. Perusal of the statement recorded under section 164 Cr.P.C. reveals that the victim has stated that Pradeep, Vijay Lal, Fauji Lal and Anek Ram asked her to accompany them to the relatives house. She has not named Surja Devi. Further, she has stated that all the four raped her. She did not shout because Pradeep and Vijay Lal had caught her hand and then raped her. When she got opportunity, she fled away. While she was on her way back, she met Radhey Shyam, pradhan of the village with a Marshal Jeep. He took her to the police station by Jeep. Pradeep is the relative of Radhey Shyam. Radhey Shyam is the uncle (fufa) of Pradeep. Radhey Shyam did not ask anything when he met her. He left her at the police station. She was raped by the police at the police station also. When the Investigating Officer was asked about this aspect of the matter, he said that he did investigate on this point, but this could not be substantiated by the evidence that the victim was raped at the police station because all the family members of the victim remained in the police station along with the victim.
31. Learned counsel for the appellant has also stated that the recovery of the victim is doubtful, inasmuch as according to the statement under section 164 Cr.P.C., Radhey Shyam left the victim at the police station, but according to PW-1 Sri Ram, the girl was recovered by the police while he was accompanying the police. The recovery memo of the girl is Ext. Ka-9, which bears the thumb impression of the informant. According to this, she was recovered from a hut near the petrol pump at Shivli. The victim has stated that she was recovered by the police, whereas in cross-examination, she has stated that she was coming back to her village, when she was recovered by the police. Thus, practically in every breath, the informant, father of the victim and the victim have changing their statements. Thus, neither the evidence of the informant nor the evidence of the victim is reliable and trustworthy. The informant has stated that the date of birth of the victim is 08.03.1993, whereas the occurrence took place on 26.05.2009. Thus, according to the statement of the father of the victim, she was above 16 years at the time of occurrence. Dr. Manisha Tiwari, PW-3 has stated the age of the victim to be 16 years, but since the prosecution case is unreliable, improbable and untrustworthy, the matter of age looses its importance.
32. Thus, what has been stated and discussed above, I conclude that the prosecution case is bundle of false allegations and improbable facts, due to which the learned trial court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed.
33. Hence, the impugned judgement and order of conviction and sentence dated 31.01.2013 passed by the learned Additional Sessions Judge, Court No. 8, Kanpur Dehat in Sessions Trial No. 419 of 2009 (State of U.P. Vs Pradeep Kumar and another) arising out of Case Crime No. 191 of 2009, under sections 363, 366 and 376 IPC, police station Shivkali, district Kanpur Dehat, is hereby set-aside.
34. Accordingly, the appeal is allowed.
35. The appellant- Pradeep Kumar is in jail. He shall be released forthwith unless wanted in any other case. The appellant is directed to comply with the provision of Section 437-A Cr.P.C. forthwith.
36. Let a copy of this order be sent to the Trial court concerned.
Order Date :- 29.03.2016 Sazia