Allahabad High Court
Umesh Kumar & Others vs State Of U.P. on 29 January, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 27 Case :- CRIMINAL APPEAL No. - 5640 of 2010 Appellant :- Umesh Kumar & Others Respondent :- State Of U.P. Counsel for Appellant :- Umesh Chandra Tiwari,Ajay Srivastava,B.K.Tripathi,D.K. Singh,Dharmendra Dhar Dubey,Dharmendra Dubey,Pradeep Kr.Srivastava,Pradeep Kumar Srivastava,Shiv Vilash Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to te judgment and order dated 11.08.2010 passed by the then Additional Sessions Judge, Court No. 1, Pilibhit, in Sessions Trial No. 446 of 2008 (State vs. Umesh Kumar and others), arising out of Case Crime No. 660 of 2007, under Sections 452, 376(2)(g) and 504 I.P.C., Police Station Beesalpur, District Pilibhit, whereby the accused appellants Umesh Kumar, Fateh Bahadur and Dinesh Pratap were found guilty under Section 376 (2)(g) I.P.C. and each was sentenced for ten years rigorous imprisonment along with fine of Rs. 5000/-, under Section 452 I.P.C. each was sentenced for two years rigorous imprisonment with fine of Rs. 1000/- and under Section 506 I.P.C., each was sentenced for six months rigorous imprisonment with default stipulation.
2. Filtering out the unnecessary details, the prosecution case is that an application under Section 156(3) Cr.P.C. was moved by the victim stating that she is resident of village Amrakaror, Police Station Beesalpur, District Pilibhit. The accused Umesh Kumar, Fateh Bahadur and Dinesh Pratap belonging to the same village were having evil eye on her since last many days. The victim has complained about this to her husband but her husband being a simple man did not react to that. On 22.08.2007, the husband of the victim had gone to his relative at Bareilly. The informant was alone in the house with her children. At about 11:00 P.M., the accused Umesh Kumar, Fateh Bahadur and Dinesh Pratap entered the house of the informant through a Pakad Tree situated near the house of the informant. The victim informant was sleeping in her courtyard while her children were lying in the room. Suddenly Umesh Kumar pressed the mouth of the victim and pointed a country made pistol at her. Dinesh and Fateh Bahadur were also holding country made pistols. They made gestures and signs and asked the informant to keep quiet and asked her to accompany them. They also threatened to kill her and her children. They took her towards the fields. She was thrown down in the field and raped by all the three accused persons. She resisted but all the three committed rape on her. On hue and cry being raised by the victim, Harish and Ram Kumar came to the spot and the accused fled away. The victim told the incident to her daughter and went to the police station but her report was not lodged nor she was got medically examined. After this, the informant sent an application by registered post dated 23.08.2007 but no action was taken against the accused persons, hence an application under Section 156(3) Cr.P.C. was moved which was registered as a first information report.
3. The medical of the victim was conducted on the directions of the Superior Authorities. The medical examination was conducted by PW-3 Dr. Alka Sharma who did not find any external or internal injury on the body of the victim. She proved the medical report as Exhibit Ka-7 and ossification report as Exhibit Ka-8. PW-4 is Dr. P.K. Gangwar who proved the supplementary report as Exhibit Ka-1. PW-5 is Constable Ram Singh who prepared the chick report. He further proved the copy of G.D. as Exhibit Ka-11.
4. The investigation of the matter was entrusted to PW-6 Har Govind Sharma who copied the copy of the order on 23.05.2008. the orders for re-investigation were passed by A.C.J.M. which was also copied in the case diary. The supplementary statement of the victim was recorded. The medical reports were also copied in the case diary. The victim was sent for recording her statement under Section 164 Cr.P.C. The application was proved as Exhibit Ka-12. Later on, the statement of the victim was recorded under Section 164 Cr.P.C. which was copied by this witness in the case diary. He moved an application for perusal of the statement and proved it as Exhibit Ka-13. the supplementary report of the victim was also copied in the case diary. On 11.07.2008, the I.O. appeared before the S.P. with all the relevant papers and the final report no. 75 of 2007 submitted by the previous I.O. and requested that the final report be cancelled which was proved as Exhibit Ka-14. On 18.07.2008, the statement of the accused were recorded and on 21.07.2008, the charge sheet was submitted against the accused which was proved as Exhibit Ka-15.
5. The prosecution examined as many as six witnesses. PW-1 is the victim who has proved the copies of the applications Exhibits Ka-1 and Ka-2. Further she proved copy of application moved under Section 156(3) Cr.P.C. as Exhibits Ka-3 and Ka-4. The application under Section 156(3) Cr.P.C. was proved as Exhibit Ka-5. PW-2 is Ram Kumar who is said to be the witness soon after the occurrence. The statements of Pw-3, PW-4, PW-5 and PW-6 have been discussed earlier.
6. After hearing the counsel for the parties, the learned lower court found the accused persons guilty who have been convicted and sentenced as has already been described in para 1 of the judgment.
7. Feeling aggrieved, the appellants have come into this present appeal.
8. I have heard learned counsel for the parties at length and perused the original record of the trial court.
9. Counsel for the appellants has submitted that the whole prosecution story is concocted, not reliable, hence the conviction of the appellant is bad in the eyes of law.
10. 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.
11. Counsel for the appellants has raised the preliminary objection that the first information report has been lodged after an inordinate delay, inasmuch as, according to the chick report, the occurrence is said to have taken place on 22.08.2007 at 11:00 P.M., whereas the report was lodged after about 16 to 17 days at 09:35 A.M. The distance of the police station from the place of occurrence being 3 Kms. The delay in lodging the report as stated in the application under Section 156(3) Cr.P.C. which is Exhibit Ka-5 which is said to have been moved before the court on 01.09.2007. Supporting affidavit have been sworn on the same day. Exhibit Ka-1 is on record which is an application by the informant addressed to the police dated 23.08.2007 and the registry receipt is Exhibit Ka-3. According to the report sent to the S.P., there is a prompt report submitted to the S.P. Even the victim has stated that she went to the police station but her report was not lodged, hence she sent an application to the S.P. and later on submitted an application under Section 156(3) Cr.P.C. which is proved on record. Thus, the first information report is prompt.
12. Coming to the incident of rape. It is trite law that generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is no a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face vaule, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu vs. State of Maharashtra, AIR 2006 SC 508.
13. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & Ors. vs. State of Maharashtra, (1999) 1 SCC 220.
14. As far as the occurrence is concerned, the victim has stated that she begged the accused persons to spare her but they did not spare her. She raised alarm at which the witnesses Harish and Ram Kumar came, who shouted at the accused at which the accused fled away firing in the air. No doubt corroboration of the testimony of the prosecutrix is not a mandate but in certain circumstances, the court does seek corroboration. Although the victim herself has stated that the witness Ram Kumar PW-2 came after the incident when she shouted and accused fled away. The name of PW-2 Ram Kumar appears in the first information report also. Ram Kumar PW-2 has stated that he was never told that the accused persons had raped the victim. This witness was declared hostile by the trial court and the prosecution was permitted to cross-examine this witness. The evidence of this witness would be significant because under Section 6 of the Evidence Act, it is proved that facts which are not an issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
15. The whole case of the victim rests on the fact that the accused entered her house through a Pakad Tree which was situated near her house. As far as the existence of the Pakad Tree is concerned, PW-2 Ram Kumar has stated that the Pakad Tree is towards the north of the house of victim which is 5 to 6 feet away. The leaning of the Pakad Tree is totally towards the north. Neither any stem nor branches is going towards the roof of the house of victim. In the same context the site plane shows that there is a drainage between the Pakad Tree and the house of the victim and Pakad Tree is situated quite away from the roof of the house of the victim. Thus the entry of the accused persons through the Pakad Tree appears incorrect.
16. As far as the place of occurrence is concerned, the victim PW-1 has stated that all the accused took her on gun point to the field of Lalit and raped her there. PW-2 Ram Kumar has stated that the field of Lalit is half kilometer away from the house of victim. Perusal of the site plan shows that the field of Lalit can only be reached after covering a very long distance and crossing the Damar Road towards the west. There is maple upon space shown. There was no reason for the accused to travel all the way with this lady in spite of the fact that there was other suitable place for them to commit rape on the victim on the way.
17. Reverting to the statement of the victim he has stated that she got the application under Section 156(3) Cr.P.C. written by an Advocate. She has further admitted that initially after investigation the police had submitted the final report against the accused persons. She has admitted that all the three accused are related to each other and Virendra Gangwar is her husband but she is the third wife of Virendra Gangwar. The simpleness and innocence of the husband is a matter of concern, to this court, inasmuch as, in spite of the third wife telling her husband that three people of the village had evil eyes on her, the husband kept quiet and did not react.
18. The victim PW-1 in her cross-examination has stated that the accused were irritated because of the frequent visit of the witness Harish to the house of the victim. The victim has submitted that her two daughter are 20 and 18 years of age who are not married, live in the same house. She has also stated that there is a Jaal on the top of the roof for safety purpose. There is a stair case in the house which is situated in the north east corner of the house. The stair case has a door on down stairs. There is no door on the roof. She has stated that she used to bolt the door of the stair case and at the time of incident, she did not bolt the door. Later correcting her statement she has stated that she used to bolt the door only when they went outside. She has admitted that the doors of the roof do not always remain open but they are only opened when it is needed. She has further stated that she was sleeping in the courtyard for the safety of the children when she woke up she saw the accused. He was standing near the courtyard. As soon as, the accused came near the courtyard, a very strange conduct of the victim is that she stated that " eq>s eqyfteku ds vkus dh vkgV lqukbZ nh Fkh bUgksaus vkrs gh idM+ fy;k FkkA bu yksxksa ls eSus iwNk rks bu yksxksa us crk;k fd ge ikdM+ ds isM ls p<+dj thus ls vk;s gSaA eSaus viuh nj[kkLrks esa ;g ugha fy[kk;k Fkk fd eqyfteku us eq>s crk;k fd ge ikdM+ ds isM+ ls p<+dj thus ls vk;s gSaA^^.
19. How it can be digestible that a lady who was sleeping, suddenly seeing three men armed with country made pistols threatening her and she inquires from them as to how they entered the house and the accused are replying that they entered her house by climbing on Pakad Tree. This conduct is absolutely improbable and not palatable. The witness trying to justify, had said that the Pakad Tree is just adjoining to her house but she was forced to admit that a drainage was adjoining the wall of her house. She tried to explain that since the accused has threatened her, hence she did not awake her daughters. The place where the accused raped her was not seen by this witness before. Any averment which raises doubt on the prosecution case is describing her gallantry in the application under Section 156(3) Cr.P.C. It has been mentioned that " izkfFkZuh jge dh Hkh[k ekWxrh jgh ijUrq rhuksa yksx ugha ekus rks izkfFkZuh us tku dh ijokg u djrs gq, tksj ls fpYyk;h rks ikl [ksrksa ij dke dj jgs xkao ds gh gjh'k iq= jke nqykjs o jke dqekj iq= eksgu yky vk x;s ftuds yydkjus ij mijksDr mes'k] fnus'k] Qrsg cgknqj gokbZ Qk;j dj tku ls ekjus dh /kedh nsdj Hkkx x;sA^^
20. This witness could have kept quiet to save her life because she was gang raped by three people. She could have kept quiet and waited for the accused persons to go back, but to show her bravery, she said that she shouted after rape at which the witness came to the spot.
21. Admittedly the final report has been submitted in this case. The existence of the Pakad Tree at a distance from the house of the prosecutrix makes the whole prosecution theory doubtful. The conduct of the prosecutrix also cannot be justified.
22. Although it is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroboration of the evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. 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 as has been laid down by the Hon'ble Apex Court in (2001) 12 Supreme Court Cases page 57 (Radhu vs. State of Madhya Pradesh).
23. As far as the medical report is concerned, since the occurrence is said to have been committed on 22.08.2007, the medical conducted on 29.05.2008 i.e. after about 8 to 9 months after the incident would be of no consequence.
24. Even otherwise the victim is a married lady with grown up children. The I.O. Har Govind Sharma PW-6 has admitted that initially the final report was submitted in the matter.
25. The prosecution has miserably failed to prove the case against the appellants, inasmuch as, the evidence of the prosecutrix when read, as a whole, is full of discrepancies, improbabilities and does not inspire confidence. The copies in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbably that such an incident ever took place. Hence, the appeal is liable to be allowed.
26. Accordingly the appeal is allowed.
27. The impugned judgment of conviction and sentence dated order dated 11.08.2010 passed by the then Additional Sessions Judge, Court No. 1, Pilibhit, in Sessions Trial No. 446 of 2008 (State vs. Umesh Kumar and others), arising out of Case Crime No. 660 of 2007, under Sections 452, 376(2)(g) and 504 I.P.C., Police Station Beesalpur, District Pilibhit is hereby set aside.
28. The appellant no. 3 namely Dinesh Pratap is on bail. His bail bond is cancelled and the sureties are discharged. Appellant nos. 1 namely Umesh Kumar and appellant no. 2 namely Fateh Bahadur are in jail. They may be released forthwith. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.
29. Let the copy of this judgment be sent to the trial court concerned for compliance.
Order Date :- 29.1.2016 sailesh