Allahabad High Court
Bablu Saini @ Dinesh 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. - 3265 of 2013 Appellant :- Bablu Saini @ Dinesh Respondent :- State Of U.P. Counsel for Appellant :- Sushil Shukla Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Vijay Lakshmi,J.
Challenge in this appeal is to the judgment and order dated 29.6.2013 passed by learned Additional Sessions Judge, Court No. 5, Kanpur Nagar in Session Trial No. 1236 of 2011 (State Vs. Bablu Saini @ Dinesh), under Section 376(2)(f) and 506 I.P.C., P.S. Kidwai Nagar, district Kanpur Nagar, whereby the appellant has been convicted under the aforesaid sections and has been sentenced as follows :-
(I) For his conviction under Section 376(2)(f) he has been sentenced to Rigorous Imprisonment of 10 years with fine of Rs. 5000/- and in default of payment of fine to undergo imprisonment of 3 months.
(II) For his conviction under Section 506 I.P.C. he has been sentenced to Rigorous Imprisonment of one year with fine of Rs. 1000/- and in default of payment of fine to undergo imprisonment of one month.
Heard Sri Sushil Shukla, 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 as unfolded during trial is that an F.I.R. was lodged on 8.5.2011 by Smt. Meena Devi (mother of the victim) at Police Station Kidwai Nagar, district Kanpur Nagar alleging that her minor daughter aged about 9 years was forcibly taken away by her neighbour in the midnight of 8/9.5.2011 at about 2.00 A.M. with bad intention of committing rape with her. When her daughter raised alarm she, her son Pawan and her husband Rajendra got awakened and saw the appellant Bablu Saini dragging her daughter towards his room. When she and her son challenged the accused, he left her daughter and threatened them with dire consequences if any report was lodged with the police.
On the basis of aforesaid F.I.R. the case under Section 376(2) and 506 of I.P.C. was registered against the appellant and was investigated. The police inspected the spot and prepared the site plan. The I.O. recorded the statements of the witnesses and arrested the accused and after concluding the investigation submitted charge-sheet against the appellant.
The trial commenced and in the Sessions Court charges under Sections 376(2)(f) and 506 of I.P.C. were framed against the appellant.
The prosecution in order to prove the charges produced six witnesses in all. P.W. 1 is the mother of the victim. She is also the first informant, the victim herself is P.W. 2, Dr. Anjula Gupta, P.W. 3 is the lady doctor who had examined the victim, Head Constable Rajesh Kumar is P.W. 4, who had prepared the check F.I.R., Smt. Chandra Prabha Tripathi, P.W. 5 is the clerk of C.M.O. Office, Kanpur Nagar, who had given secondary evidence on behalf of C.M.O., Kanpur Nagar by identifying his signature on Ext. Ka. 6 which is age certificate of the victim and the Investigating Officer S.I. Rakesh Pratap Singh is P.W. 6.
After conclusion of the prosecution evidence the statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he denied the entire allegations and stated that a false case has been lodged against him by the informant after tutoring her daughter because of property dispute with one Puttan Saini. He has further stated that the incident is said to have taken place in the mid night of 7/8.5.2011 at 2.00 A.M. and in the medical examination of the victim, which has been conducted on 8.5.2011 at 12.00 noon, no injury has been found by the doctor on the body of the victim. Moreover, the victim has stated that a lot of blood had oozed out from her private part during the occurrence. On the other hand the doctor has found the victim used to sexual intercourse.
In his defence the accused-appellant produced documentary as well as oral evidence. The list of five defence witnesses is as under :-
1. D.W. 1 Santosh Kumar Mishra,
2. D.W. 2 Ramesh Chandra Shukla,
3. D.W. 3 Akhilesh Kumar,
4. D.W. 4 Mool Chandra, All these four witnesses are the neighbours of the informant and accused-appellant and
5. D.W. 5, Ramesh Saini is younger brother of accused-appellant.
According to defence, there was some dispute between Puttan Saini and the accused appellant. On the occasion of Holi some quarrel had also taken place between the accused-appellant and the informant's family, both of whom are neighbours. The defence witnesses have stated that the husband of the first informant is an unemployed person having no source of income and his wife (the informant) used to earn her livelihood by prostitution. On the other hand the accused-appellant is a man of character. He is a married person having a son aged about 11 years. After the quarrel the informant had threatened the appellant to implicate him in some false case. All the defence witnesses have stated that no such incident took place as alleged by the prosecution.
The trial court, after hearing both the parties, found the prosecution case trustworthy. Accordingly it held the appellant guilty and convicted and sentenced him as discussed earlier.
Aggrieved by the impugned judgment passed by the trial court, the appellant has moved this Court questioning the legality and correctness of the impugned judgment mainly on the following grounds :-
1. The learned trial court has passed the impugned judgment without correct appreciation of the evidence on record and has disbelieved the defence witnesses without any cogent reason.
2. The prosecution case does not find support with the F.I.R. because in the F.I.R. there is no allegation of rape and the informant has clearly stated that when she and her son challenged the accused, he left her daughter and ran away threatening them.
3. The I.O. (P.W. 6) has categorically stated that during interrogation the first informant/mother of the victim had not told anything about the commission of rape with her daughter by the accused.
4. It appears very strange that why the mother of the victim had gone all alone to the police station to lodge the F.I.R. and what was the reason that her husband and major son, despite the fact that both of them were present at their home at the time of occurrence, did not accompany her ? In support of this contention learned counsel for the appellant as drawn the attention of this Court to the statement of P.W. 4 who was the Head Moharrir of the police station concerned at the time of occurrence. He has prepared the check F.I.R and has made necessary entries in G.D. after registering the case. P.W. 4 has stated that the informant had come alone with the victim to the police station for lodging the F.I.R. Her husband or her major son had not accompanied her.
5. Learned counsel for the appellant has contended that it is very unfortunate, shameful and sad state of affairs that a minor girl of only 11 years has been found habitual to sexual intercourse by the doctor but only on this ground it cannot be held that the allegation of rape against the appellant has been successfully proved by the prosecution.
Per contra the submission of learned A.G.A. is that in cases of rape the sole testimony of the prosecutrix or the victim is sufficient to convict the accused and there is no need of any further corroboration because no one would falsely implicate any person at the cost of his family prestige and moreover involving a minor daughter.
I have given my thoughtful consideration to the arguments advanced from both sides. There is no doubt that as per settled legal position, in cases of rape, the solitary statement of the victim is sufficient to hold the accused guilty but at the same time the condition is that the quality of such solitary statement should be such which inspires confidence. It should be absolutely trustworthy, unblemished and 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 words "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 :
"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 held :
"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 statements of prosecutrix and the first informant on the touch stone of the above cited legal principle, it appears that P.W. 1, the informant who is the mother of the victim, has stated that when on 7/8.5.2011 at about 2.00 A.M. she heard the shrieks of her daughter, she got awakened and informed her husband and son. The sound of shrieks was coming from the house of appellant Bablu Saini. She saw that her daughter was not on the cot on which she was sleeping. She rushed to the door of Bablu Saini and saw him dragging her daughter inside his house for throwing her outside the house from his back door. She has further stated that at that time she did not raise any alarm because Bablu Saini had threatened to kill her. She has further stated that on the next evening on 8.5.2011 she went to police station to lodge the F.I.R. What she had dictated the police had written. She has proved the check F.I.R. as Ext. Ka. 1.
The aforesaid statement of the complainant recorded during her examination-in-chief shows that she has not stated anything about commission of rape as she has only stated that hearing the shrieks of her daughter, when she reached at the door, she saw the accused dragging her daughter towards his room for throwing her outside from his back door. Thus, neither in the F.I.R. nor in her examination-in-chief she (P.W. 1) has stated anything about commission of rape of her daughter by the accused. The record shows that she has been cross-examined at length on three dates by the defence counsel but it is strange that she has not stated a single word about the commission of rape by the accused with her daughter even during her cross examination. Her cross-examination shows that she has admitted that her husband and her son are unemployed and the daily house hold expenses are borne by her. She has also admitted that Puttan Saini and accused Bablu Saini are on inimical terms with each other. She has stated that except herself, all her neighbours use to sleep inside their house. She has further stated that her husband sleeps inside the house whereas she uses to sleep on the road. She has also admitted that she did not see the accused throwing her daughter in the street from the back door of his room. She has admitted that she did not go to police station immediately after the occurrence but she went to lodge the F.I.R. on the next evening at 8.00 P.M.. When she was contradicted with the F.I.R. version in which it has been stated that "when the accused was dragging her daughter towards his room and she, her husband and her son resisted the accused left her daughter". She stated that the aforesaid fact was rightly mentioned by her in the F.I.R.
Thus, clearly there is no allegation of rape either in the F.I.R. or in the statement of P.W. 1, the mother of the victim.
The I.O. (P.W. 6) has clearly stated that neither the complainant (mother of the prosecutrix) nor her father informed him anything about commission of rape of their daughter by the accused. The I.O. has further stated that neither the prosecutrix nor her family members had informed anything about accused threatening to them. The I.O. has also stated that neither the informant nor the victim during their interrogation under Section 161 Cr.P.C. had stated anything about the blood oozing out from private part of the victim or about any treatment of the victim Thus, the prosecution story does not find support with the case diary also.
It appears that for the first time during her statement recorded under Section 164 Cr.P.C. which has been recorded after one month of the occurrence, the victim has stated about rape. In her statement recorded under Section 164 Cr.P.C. she has stated that when she was sleeping with her mother outside her house, the accused-appellant lifted her and took her inside his house pressing his hand over her mouth. There he removed her clothes and committed rape with her. A lot of blood oozed out from her private part and her clothes were spoiled with blood. She has also stated that the accused threatened her by showing a knife and after beating her he threw her outside the house from back door.
However, when the victim was examined during trial as P.W. 2 she stated that the accused put his hanker chief on her mouth and took her to his room where he committed rape with her. She has further improved her statement by deposing that the accused had put some stupefying substance on the hanker chief due to which she became unconscious. She has further stated that before throwing her away in the street, the accused appellant had sprinkled water on her face due to which she regained her consciousness. She was contradicted with her statement recorded under Section 164 Cr.P.C. on this point and she stated that she had stated before the Magistrate that the accused had put hanker chief on her mouth but she could not assign any reason as to how in her statement under Section 164 Cr.P.C. the Magistrate had recorded that the accused had put her hand on her mouth. She has admitted that where the accused had thrown was a Pakki Gali but she has stated that she did not sustain any injury due to falling in the street. She has stated that her mother had taken her to some Shivpujan Clinic but the doctor had neither prescribed any medicine to her nor he examined her. She has stated that before this incident she never had sexual intercourse with any one. She has stated that when she had gone to the police station with her mother, she was wearing same clothes but has further stated that she had wore same cloth after getting those clothes washed and dried. She has also stated that she is unable to recollect whether her clothes were stained with blood or not. She has stated that her father found her in the street and took her back with him. She has further stated that on the next date of the occurrence she had gone to the school for appearing in the monthly test. The prosecutrix has also admitted the fact that a quarrel had taken place between her family members and accused appellant at the time of Holi. Though, the prosecutrix has stated that she never had sexual intercourse with any one before this occurrence but the doctor has found her habitual to sexual intercourse even at the tender age of 11 years. It is very sorry state of affairs but in the family background of victim as is evident from the evidence available on record, the possibility cannot be ruled out.
The aforesaid statements of the mother and the daughter (P.Ws. 1 and 2) who are the only two material witnesses in this case, clearly show that there is no convincing and cogent evidence against the accused appellant warranting his conviction. The statement of both the prosecution witnesses are full of embellishment, discrepancies, contradictions and improvement making the prosecution story highly doubtful. On the other hand the statements of defence witnesses appear to be natural and trustworthy. All the defence witnesses except D.W. 5 are independent witnesses who are neighbours of both the parties i.e. the informant and accused. There appears no reason why a neighbour would shield the accused from such heinous and grave allegation like the rape of a minor. The defence witnesses have categorically stated that they never heard any shriek in the night of occurrence. They have also stated that the police had come to the place of occurrence. They had informed the police that no such incident had taken place. The neighbours have also stated that the informant is a lady of easy virtue and she uses to indulge in illegal acts for earning her livelihood. The medical evidence is an important piece of evidence in rape cases. However, in the present case medical evidence does not support the story of rape because the doctor has not found any injury or spermatozoa on the body of the victim.
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."
Considering the aforesaid facts and circumstances and in wake of aforesaid judgments of Hon'ble Supreme Court, this Court is of the considered view that the impugned judgment dated 29.6.2013 is liable to be set aside and the appeal deserves to be allowed.
Accordingly, this appeal is allowed and the impugned judgment dated 29.6.2013 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 Chief Metropolitan Magistrate, Kanpur Nagar for immediate compliance.
Dated : July 08, 2016.
S.B.