Allahabad High Court
Mahendra And Another vs State Of U.P. on 8 April, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 27 Case :- CRIMINAL APPEAL No. - 4383 of 2014 Appellant :- Mahendra And Another Respondent :- State Of U.P. Counsel for Appellant :- S.P. Sharma Counsel for Respondent :- Govt.Advocate,Ashish Pandey Along with Case :- CRIMINAL APPEAL No. - 4173 of 2014 Appellant :- Km. Lalita Respondent :- State Of U.P. Counsel for Appellant :- Jitendra Kumar Singh,Mayank Sriastava Counsel for Respondent :- Govt.Advocate,Ashish Pandey and Case :- CRIMINAL APPEAL No. - 4462 of 2014 Appellant :- Munna Kachhi Alias Jairam Respondent :- State Of U.P. Counsel for Appellant :- Jitendra Kumar Singh,Mayank Srivastava Counsel for Respondent :- Govt.Advocate,Ashish Pandey and Case :- CRIMINAL APPEAL No. - 4506 of 2014 Appellant :- Madhur Respondent :- State Of U.P. Counsel for Appellant :- B.M. Tripathi,Satya Prakash Rathor Counsel for Respondent :- Govt.Advocate and Case :- CRIMINAL APPEAL No. - 4507 of 2014 Appellant :- Guddi Kachhi @ Ram Charan Respondent :- State Of U.P. Counsel for Appellant :- B.M. Tripathi,Satya Prakash Rathor Counsel for Respondent :- Govt.Advocate and Case :- CRIMINAL APPEAL No. - 4508 of 2014 Appellant :- Pappu @ Chaturbhuj Respondent :- State Of U.P. Counsel for Appellant :- B.M. Tripathi,Satya Prakash Rathor Counsel for Respondent :- Govt.Advocate,A.Pandey Hon'ble Mrs. Ranjana Pandya,J.
1. Since all the afore-captioned criminal appeals have been filed in the same case crime number, hence they are being decided by this common judgment.
2. Challenge in these appeals is to the judgment and order dated 18.10.2014 passed by the learned Additional District & Sessions Judge, Court No. 14, Jhansi in Sessions Trial No. 68 of 2012 (State vs Mahendra and another) and Sessions Trial No. 146 of 2013 (State vs Km. Lalita and others) arising out of Case Crime No. 246 of 2011, under sections 366, 376, 120-B IPC, PS Garautha, District Jhansi, whereby the accused Mahendra, Ram Baharosey, Pappu alias Chaturbhuj, Guddi Kachi alias Ram Charan, Munna Kachi alias Jai Ram and Madhur have been convicted and sentenced to ten years' rigorous imprisonment and a fine of Rs. 5000/- each under section 376(g) IPC; five years' rigorous imprisonment and a fine of Rs. 2000/- each under section 366 IPC with default stipulation. Accused Lalita has been convicted and sentenced to three years' simple imprisonment and a fine of Rs. 2000/- under section 366 IPC with default stipulation.
3. Filtering out unnecessary details, the prosecution case is that a written report was lodged by the informant Om Prakash stating that he is the resident of village Mathaniya, police station Garautha, district Jhansi. On 05.10.2011 at 8.00 p.m., the victim and her mother was alone in the house. The informant had gone with a tractor to do work. At that time, a girl from same village, namely, Lalita, daughter of Matadeen came to the house of the informant and called the victim to accompany her to attend the call of nature. As soon as the victim came out of the house to attend the call of nature, the accused Mahendra and Ram Bharose accompanied with four unknown persons at the point of country made pistol kidnapped the victim and took her away on motorcycle. When the informant returned, his wife and villagers told him about the occurrence, but since it was late night, due to fear, he did not go to lodge the report. On 06.10.2011 at 7.00 a.m., a phone call was received from mobile No. 8400042844 that the aforesaid persons had detained the victim, hence the report was lodged.
4. On the basis of this report, chik report was prepared and case was registered by Constable 3473, Rakesh Kumar Pundir, PW-6 at Case Crime No. 246 of 2011. He proved the chik report as Ext. ka-12 and the copy of G.D. as Ext. Ka-13. Further investigation was entrusted to PW-7, S.I., Ashok Kumar. He recorded the statement of witnesses Ashok Kumar and Vijay Kumar on 30.12.2011 and submitted the charge sheet, which was proved by this witness as Ext. Ka-4. He further recorded the statement of Dr. Pushplata Verma. He recorded the statement of the victim and sent three bundles for examination to the forensic lab. He proved the relevant proforma as Ext. Ka-5. Initial investigation was conducted by S.I. Lal Mani Saroj, PW-5, who had given the marksheet of the victim. On the pointing out of the informant, he inspected the spot and prepared the site plan, which was proved as Ext. Ka-7. He further proved the recovery memo by virtue of which the clothes of the victim and accused Mahendra and Ram Bharose were taken into possession, which were proved as Ext. Ka-8 to Ka-10. After statement of the victim, Section 376 IPC was added. He proved the site plan as Ext. ka-11 from where the victim was recovered.
5. The victim was examined by Dr. Pushplata Verma, PW-3, who did not find any mark of injury on the body of the victim. The vagina was admitting two fingers easily. She prepared two slides of vaginal smear. The victim was sent for ossification test. This witness proved the medical report as Ext. Ka-3, supplementary report as Ext. Ka-4 and pathological report of vaginal smear as Ext. Ka-5. Dr. M.C. Verma, the radiologist conducted the ossification test on the victim and proved the ossification report as Ext. Ka-2 and the X-ray report as material Ext. 1.
6. The prosecution has examined as many as eight witnesses. PW-1 is the informant, who proved the written report as Ext. Ka-1. PW-2 is Dr. M.C. Verma, PW-3 is Dr. Pushplata Verma, whose evidence have been discussed above. PW-4 is the victim of the case, who proved the statement under section 164 Cr.P.C. as Ext. Ka-6. PW-5 is S.I. Lal Mani Saroj, whose evidence has been discussed earlier. Statements of PW-6 Constable Rakesh Kumar Pundir and PW-7, S.I., Pramod Kumar have also been discussed earlier. PW 8 is SI R.K. Sharma, who proved the charge sheet, Ext-Ka-16.
7. After close of the prosecution evidence, statements of accused persons were recorded under section 313 Cr.P.C., in which they denied the occurrence and stated that nephew of the informant was Home Guard, due to his influence false report was lodged against the accused. The accused Mahendra has stated that he demanded his labour charges, which was due on the informant, hence, he has been falsely implicated. The accused Madhur has stated that the informant wanted to encroach upon the land of this accused, hence, he has been falsely implicated. The accused persons produced DW-1 Pratap Narayan, DW-2, Chandra Bhan and DW-3, Malti in their defence.
8. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 2 of the judgement.
9. Feeling aggrieved, the accused have come up in appeal.
10. I have heard learned counsel for the appellants, learned Additional Government Advocate for the State respondent and perused the lower court record.
11. Learned counsel for the appellants has vehemently argued that the charges framed against the appellants have not been proved beyond all reasonable doubt. The conviction is based on inadmissible evidence and the appeal is liable to be allowed.
12. On the other hand, learned A.G.A. has submitted that the findings of fact recorded by the trial court is based on evidence, which is clear, cogent and convincing.
13. As far as the occurrence is concerned, the girl is said to have been missing from her house on 05.10.2011. The report was lodged on 06.10.2011 at 16.45 p.m., the distance of the police station from the place of occurrence being 17 kms.
14. As far as the FIR is concerned, the FIR is back bone of a criminal case. If there is delay in lodging the FIR, chances of embellishment and false implication increases. In the present case on 05.10.2011, when the girl is said to have been lifted by the accused, her mother had seen the accused fleeing away. Thus, there was no reason why the FIR could not be lodged on the same day. Although, in the FIR, it has been mentioned that since it was late night, hence the FIR could not be lodged on the same day, but, it was lodged on 06.10.2011. If, it is believed that on 05.10.2011, the informant was fearful, what prevented him from going on the next day early morning specially when in the FIR and the prosecution evidence, it has specifically been mentioned that on 06.10.2011 at 7.00 a.m., the victim had telephoned her father that she was kidnapped. When the phone call was received by the father of the victim, naming the victim or not naming the victim, he should have at once rushed to the police station. What prevented him from going to police station being 17 kms, which was a million dollar questions, which remained unanswered.
15. PW-1, Om Prakash, has stated that since he came back house in the late night, his wife told him about the occurrence, but as it was late night, he could not lodge the FIR on the same day. Next morning at 7.00 a.m., he got phone call from his daughter, who told him that Lalita had given her hand into the hand of the accused persons and they had got her locked in a room, then on 06.10.2011, he went to the police station to lodge the report. This witness has failed to explain why the report was not lodged in early morning. Therefore, the inordinate delay in lodging the FIR 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 reasons are wholly untenable in law, which cannot be accepted. It is interesting to note that the mother had seen the accused taking away the girl, and on the next day a telephone call is said to have been received by the father, in such circumstances, no one else but PW-1 Om Prakash, the father of the victim, who is expected to have anxious concern, could have gone to the police station to lodge a missing report, which could have prompted the Investigating Officer to act. It baffles to common sense that the father knowing that his daughter has been kidnapped and enticed away and received a phone call from his daughter, for some unfathomable reasons that defeats the basic human prudence, he approached the police station quite belatedly.
16. The Hon'ble Apex Court in (2015) 3 SCC (Cri) 82, Md. Ali alias Guddu vs State of U.P. in para 21 has made the following observations:
"It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle."
17. The court, however, said that mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned, but in the present case, the reason has not at all been explained. Thus, this delay in lodging the FIR is fatal for the prosecution case and has caused a dent in the prosecution case.
18. 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 value, 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.
19. Learned counsel for the appellants have submitted that the version as set forth by the prosecution in the statement under section 164 Cr.P.C., the averments as set forth in the FIR and the statement of PW-1 Om Prakash coupled with statement of the victim recorded before the trial court are all contradictory and the whole prosecution story is topsy-turvy. Hence, the whole prosecution story cannot be relied upon.
20. Perusal of the statement of the victim under section 164 Cr.P.C., which is Ext. Ka-6 reveals that Lalita came to her house and asked her to accompany to attend the call of nature, she went and sat on well, after some time she asked the victim to flash the torch, as soon as she flashed the torch, Lalita caught her hand and gave her hand in the hand of two boys. Pappu pressed her mouth, Chairman and Mahendra pointed country made pistol at her and Munna Kachhi picked her up and took her away. Madhur and Guddi were standing on the motorcycle on the road and one Alto car came and she sat in the car. Pappu drove the car, Madhur and Mahendra got seated with the country made pistol. They took her in the jungle, locked her in a room, where she was raped by these people. First and foremost Pappu raped her after that the remaining raped her. Then, they took her out of the room and took her in the Jungle, where police recovered the victim. No doubt, this statement under section 164 Cr.P.C. is mere a previous statement of the victim, who has admitted that her statement was recorded before the Magistrate under section 164 Cr.P.C. When the victim was questioned before the court as to why, she did not give complete details before the Magistrate in her statement under section 164 Cr.P.C., she stated that she did not remember and due to nervousness, she could not tell the Magistrate that when she was calling her father on phone, the phone was snatched. She also said that she did not remember whether she stated to the Magistrate that she dialed her father on 06.10.2011. If the Magistrate would have asked her, she told him. May be, she could not have told the whole occurrence to the Magistrate because she was nervous. The statement under section 164 Cr.P.C. is the statement on oath recorded quite immediately after the occurrence. The occurrence took place on 05.10.2011, 06.10.2011 and 07.10.2011 and the statement of the victim was recorded under section 164 Cr.P.C. on 12.10.2011. All along were present with her, after her recovery for moral support. I can understand the trauma suffered by a girl, who had been kidnapped and raped, but there is no plausible reason why she did not state all the relevant facts before the Magistrate in her statement under section 164 Cr.P.C. Thus, this is indicative of contradictory conduct of the victim.
21. Learned counsel for the appellants have submitted that the victim is a major and there is no evidence on record that the victim was kidnapped or abducted knowing that she will be compelled to marry any person against her will.
22. As far as the age of the victim is concerned, in Criminal Appeal No. 1209 of 2010 Jarnail Singh Vs. State of Haryana, the Hon'ble Apex Court has observed as follows :
"....On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children Act, 2000 Rule 12 referred to hereinabove reads as under :
"12. Procedure to be followed in determination of Age. (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-
rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
23. In order of preference given in the Juvenile Justice (Care and Protection of Children) Act, since academic record is not available, the court has to revert back and take aid of the ossification test report, which is Ext.Ka-4 on record. According to the doctor, who conducted the radiological test, the age of the victim was above 17 years. Even if the margin of two years is taken either side for the sake of arguments, the age of the victim is above the age of consent on the date of occurrence.
24. When the statement of the victim was recorded on 02.01.2014, she stated her age to be 20 years, whereas on 12.10.2011 when her statement was recorded under section 164 Cr.P.C., she stated her age to be 17 years. Cross examination of this victim puts all doubt to an end, inasmuch as she has stated that " esjh tUefrfFk 01-06-1991 gSA" According to this statement, on the date of occurrence i.e. 05.10.2011, the victim was aged above 19 years. She has also stated that at the time of occurrence, she was the student of B.A-II and capable of understanding the right and wrong. Thus, as per own admission, she is major.
25. As far as the incident is concerned, PW-1 Om Prakash, the father of the victim is not an eye witness of anything, but his statement needs consideration. Although, according to provision of Indian Evidence Act, if a witness has stated anything to her parents just after the incident, it could be admissible, but I treat the evidence of PW-1 Om Prakash as hearsay because he stated before the court as to what was stated to him by his wife. There is no reason as to why Smt. Rekha, mother of the victim was not produced before the court because she was the best person, who could state what happened at the relevant time. PW-1 Om Prakash has stated that his wife told him that Mahendra and Ram Bharosey had pointed a country made pistol at the victim and there were four unknown persons, who could not be recognized by the wife.
26. In her statement under section 164 Cr.P.C., the victim has stated that she was kidnapped in Alto Car whereas PW-1, Om Prakash has stated that the victim was taken away on a motorcycle. The veracity of this witness is also tested on the test of cross-examination, in which he has stated that he used to go to bring the victim from school, but the daughter of the informant, the victim does not support his version, inasmuch as she has stated that she only attended school 3-4 times after taking admission and since her sister-in-law underwent an operation of uterus, she remained at home and for 3-4 times, she went to college. She went with her brother.
27. Further PW-1 Om Prakash, the father of the victim has stated that prior to the incident, he had settled the marriage of his daughter at Chirgaon, but due to this occurrence, the marriage could not be solemnized. Further, this witness has stated that in the present case, his brother's brother-in-law Kailash is the witness. He does not know whether in 2011 the grandson of his maternal uncle Sunder Lal took away one Rita and both were recovered from Jhansi, in which the nephew of this witness had aided duo. This witness has further submitted that Lok Nath is father of the accused Madhur, but he does not know whether he purchased the fields from Chaturbhuj or not. This witness has shown ignorance towards any question which was put to him, but he admitted that the accused Mahendra moved an application to the District Magistrate complaining that his pathway was closed by this witness although that application was false. He could not even tell whether this witness had got the crops of Pappu alias Chaturbhuj harvested by his men, whose complaint was lodged with the District Magistrate. He has admitted that presently Matadeen, the father of accused Lalita and he himself are co-sharer. He has admitted that he has also called by the name of Munna Lal and action was taken under section 107/116 Cr.P.C. by the Sub-Divisional Magistrate, Garautha on the complaint to the accused Ram Charan and his wife. He has admitted that he did not see his daughter being kidnapped, but he was informed about the recovery of the girl, who was recovered on 07.10.2011. He came to know about the recovery at 3.00 p.m. in the day time by the police. When he reached the police station, he found his daughter at the police station. He has further stated that his daughter was kidnapped 50-60 feet from his house. How the wife of the informant Smt. Rekha, who could hear the alarm raised by the victim from 50-60 feet is questionable. He has further stated that whatever was told to him about the incident was written by him in the first information report. He has admitted that neither Lalita came to his house in his presence nor she asked for a torch, in fact, he admitted that no incident took place in his presence. He has admitted that he did not name the accused Jai Ram either in the report or in the three statements given to the Investigating Officer and he could not assign any reason for not naming him.
28. As far as the statement of the victim is concerned, in AIR 2008 SC (Supp) page 882, Motilal Vs. State of M.P., the Hon'ble Apex Court has laid down that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasized by this court time and again), but to hold that the prosecutrix must be believed irrespective of all probabilities in her story is an argument that can be never accepted. Test always is as to whether the given story prima facie inspires confidence.
29. It is settled law that the statement of the victim in cases of rape should be given due weightage, but it is also true that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. Rape leaves a permanent scar on the life of the victim, and therefore, a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most-hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
30. 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.
31. 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.
32. I am conscious of the fact that in the matter of rape, the statement of the prosecutrix must be given prime consideration, but at the same time the principle that the prosecution has to prove its case beyond reasonable doubt applied equally to a case of rape and there can be no presumption that the prosecutrix will always tell the entire story truthful.
33. In Rajoo & Ors vs State of Madhya Pradesh, AIR 2009 SC 858, the Hon'ble Apex Court has held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. However, the Apex Court has further observed:
'....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.... 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.'
34. I am also conscious of the fact that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.
35. Thus, corroboration as the condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. This is a case of gang rape by six persons and I think, no doubt that a woman, howsoever dissolute she may be, would not ordinarily consent to insulting, humiliating and repulsive act of sexual intercourse on her by a number of persons, as if she were a chattel for public use. The law recognises that a woman even of easy virtue, or even a whore for that matter, has personal dignity and honour. She cannot be violated, if only because of her lowly profession. It must however be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals. It may be difficult to believe a woman of immoral character if she says that some persons had sexual intercourse with her unless there existed satisfactory proof in support of the story of sexual intercourse.
36. Thus, in the aforesaid backdrop, the statement of the victim has to be examined. The victim has stated that on 05.10.2011 at 8.00 p.m., she was alone in the house with her mother, the accused Lalita came to her house and requested to accompany her to attend the call of nature. Her mother was sitting outside the house. Lalita asked her to flash the torch, as soon as she flashed the torch, Lalita caught her hand and lifted her hand. She fell down on her knees. She shouted and Mahendra and Chairman pointed a country made pistol on her. Pappu pressed her mouth. Munna Kachhi took her on the road and tied her mouth and hands in the 'beda'. Mahendra forced her to sit on the motorcycle, which was being driven by Madhur. This is against the statement under section 164 Cr.P.C., in which she has stated that she is said to have been taken away in an Alto car and further this witness has stated that in the jungle an Alto car came and she was thrown below the seat in the car by Pappu, Mahendra and Madhur, then she was taken in the jungle and the room was closed. After that Mahendra, Chairman, Pappu, Madhur and Munna Kachhi and Guddi Kachhi came in the room and raped her.
37. The victim has further stated that she had stated the names of six persons before the Magistrate, who raped her and she could not assign any reason why the Magistrate did not record the names of these people, who raped her.
38. In AIR 2010 SC 3813, Musauddin Ahmed vs State of Assam, the Hon'ble Apex Court has laid down that if there are contradictions in the statements of the victim recorded under section 164 Cr.P.C. and that recorded before the trial court, it would caused a dent in the prosecution case.
39. Further, the victim has stated that after she was being lifted from near the well, she was taken till the "beda" on the shoulder, where her mouth was tied with a cloth, and her hands were tied backward. Further, she has stated that her hands were tied with the towel. This witness had to undergo the test of cross-examination, in which she miserably failed, inasmuch as in cross-examination, she has stated that she walked 1-1/2 kms away from the room, then she made to lay on a nala, in which there was sand and all around her the accused persons put thorn. She laid in the nala for quite some time where her hands and mouth were tied. What was the necessity of making her lie on the sand and putting thorn all around her. It appears that she forgot what was had stated in her earlier cross-examination because this witness was cross-examined on many dates. In the next breath, she has stated that her hand and feet were also tied. Her feet were also tied while she was on the motorcycle. Her hands were tied backwards. She said that her hand was bit loose at which, she freed her hands and called her father on the next day. She has stated that from the day of kidnapping and till the recovery, she did not eat anything, nor she went to attend the call of nature, neither she went for latrine, nor she went for bathroom. She has admitted that Guddi and Munna are real brothers. The recovery of this witness is also doubtful, inasmuch as she has stated that the accused Mahendra was catching her with one hand, when the police came the accused Mahendra fired at the police. Suddenly, accused Mahendra left her hand and she reached the police persons. PW-5, S.I. Lal Mani Saroj, who recovered the victim, has stated that he recovered the victim along with Mahendra and Ram Bharose. There is no recovery memo on record. If the police had actually recovered the victim, it should have prepared the recovery memo at the spot. On the other hand, the Investigating Officer, S.I., Lal Mani Saroj had dared to say that as soon as the victim was recovered on the spot, the clothes of the victim, viz, Kurta, Salwar, Samiz, undergarments were taken in possession and sealed. The clothes of the accused Mahendra and Ram Bharose were also taken in possession and sealed. This witness proved the clothes of the victim, namely, panty as material Ext.-3, Kurta as material Ext. 4, Salwar as material Ext. 5, Baniyan as material Ext. 6 and samiz as material Ext. 7. The clothes of accused Mahendra, were produced before the court. The pant was proved as material Ext. 8; shirt as material Ext.9 and undergarments as material Ext. 10. The clothes of the accused Ram Bharose, which weretaken and sealed by this witness and proved before the court viz. pant as material Ext. 11, undergarments as material Ext.12 and shirt as material Ext. 13. Corresponding recovery memos are Ext. 8, 9 and 10, which were prepared on 07.10.2011. If the evidence of the Investigating Officer is believed, then it will mean that at the place of recovery, the victim and both the accused Mahendra and Ram Bharose were disrobed and they were made naked and the Investigating Officer took their clothes in possession. This version can absolutely be disbelieved, which caused a dent in the prosecution case because the victim has stated that the Investigating Officer did not take her clothes in possession on the spot, but took her clothes in possession at the police station when her mother came with another set of clothes at the police station. Thus, the recovery itself becomes doubtful. The forensic laboratory report is on record, which shows bloodstain on the panty of the victim and shirt of Ram Bharosey, but neither the forensic laboratory report was exhibited nor it was put to the accused in the statement under section 313 Cr.P.C. Hence, I am hesitant in placing reliance on the forensic laboratory report.
40. Reverting back to the occurrence, since the prosecution version and specially the statement of the victim are shaky and unreliable, I would seek for some type of corroboration from the medical report. Dr. Pushplata Verma did not find any mark of injury on the external or internal part of the victim. Although the victim PW-4 has stated that in the occurrence, she sustained injuries on her back, she had shown injuries to the doctor. She has further very emphatically stated that "esjs gkFk ckW/kus ls yky iM- x, Fks] vkSj ckW, gkFk dh dykbZ ds tksM ij xkWaB esa vHkh Hkh nnZ gksrk gSA ;g xkWaB rkSfy;k ls gkFk ca/ks gksus ds dkj.k gqbZ gSA eSusa MkDVj dks gkFk esa cuh xkWaB o yky fu'kku u fn[kk;s FksA u crk, FksA vkSj njksxkth dks Hkh yky fu'kku o xkWaB ugha crk, FksA" but she has stated that she had told the interrogating officer that she has sustained redness on her wrist during the course of her abduction. There is no reason why the doctor would not note her injuries, if she would have told. Dr. Pushplata Verma, PW-3 has specifically mentioned that there were no sign of injuries on her body. Since, she has stated that she was raped for one hour. If a 18-20 years old girl kidnapped and raped for one hour, I am sure injuries are must, but in the present case, medical evidence does not support the commission of rape. In this particular case and the manner in which rape is said to have been committed, bruises, scratches and abrasions on the writs, breast, face and neck should have been found by the doctor. Thus, the medical evidence also does not support the prosecution case and here another dent is proved in the prosecution version.
41. Again I repeat that if forcible sexual assault would have been committed by these people, there would have been oedema, redness, swelling of vagina and scratches and bruises as I have said earlier. Absence of these injuries, renders the whole prosecution case improbable. Thus, the statement of the victim does not inspire confidence. Although, the accused have denied the occurrence and examined DW-1 Pratap Narayan, DW-2, Chandra Bhan and DW-3, Malti for the plea of alibi as against the accused Madhur, but even if the defence has failed to prove its case, the prosecution has to stand independently on its own legs and the weakness on the part of the defence, case will not come to the rescue of the prosecution, which has to stand on its own legs and to prove its case beyond all reasonable doubt.
42. In the case of Suresh N. Bhusare & Ors. vs. State of Maharashtra, (1999) 1 SCC 220, the Hon'ble Apex Court has held that if 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.
43. Thus, the whole prosecution case is full of dents and what has been stated and discussed above, I conclude that the prosecution case is a bundle of false allegations and improbable facts, due to which the learned trial court misled 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.
44. Hence, the impugned judgement of conviction and sentence dated 18.10.2014 passed by the learned Additional District & Sessions Judge, Court No. 14, Jhansi in Sessions Trial No. 68 of 2012 (State vs Mahendra and another) and Sessions Trial No. 146 of 2013 (State vs Km. Lalita and others) arising out of Case Crime No. 246 of 2011, under sections 366, 376(g), IPC, PS Garautha, district Jhansi, is hereby set aside.
45. Accordingly, the appeal is allowed.
46. The appellants-Mahendra and Ram Bharose are on bail. They need not surrender to the court below. The appellants Km. Lalita, Munna Kachhi alias Jairam, Madhur, Guddi Kachhi alias Ram Charan and Pappu alias Chaturbhuj are in jail. They shall be released forthwith, unless wanted in any other case. Their bail bond are cancelled and the sureties are discharged. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.
47. Let a copy of this order be sent to the trial court concerned.
Order Date :- 8.4.2016 Sazia