Allahabad High Court
Ram Sagar & Others vs State Of U.P. on 11 July, 2013
Author: Surendra Kumar
Bench: Surendra Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
COURT NO.47
A.F.R.
CRIMINAL APPEAL NO.4946 OF 2006
Ram Sagar and others.......................................Appellants.
Versus
State of U.P......................................................Respondent.
Hon'ble Surendra Kumar, J.
1. Heard Sri V.S. Parmar, learned amicus curiae for the appellants and learned AGA for the State.
2. Three accused persons who are appellants herein namely Ram Sagar appellant no.1, Sughar Singh appellant no.2 and Santram appellant no.3 sons of Kanaujilal Dhobi, residents of village Palia, Police Station Kurra, District Mainpuri, preferred this criminal appeal under Section 374(2) Cr.P.C. against the judgment and order dated 22.7.2006 passed by the Additional Sessions Judge, FTC No.1, Mainpuri, in Session Trial No.141 of 2003 State Vs. Ram Sagar and two others, relating to Crime No.54 of 2003, Police Station Dannahar, District Mainpuri whereby all the three accused-appellants, who are real brothers, have been convicted under Sections 363, 366, 376 I.P.C. and sentenced to undergo three years rigorous imprisonment with fine of Rs.1,000/- each under Section 363 I.P.C., in default of payment of fine, six months additional imprisonment, five years rigorous imprisonment with fine of Rs.3,000/- each under Section 366 I.P.C., in default of payment of fine, one year additional imprisonment and ten years rigorous imprisonment with fine of 5,000/- each under Section 376 I.P.C., in default of payment of fine, two years additional imprisonment. All the sentences have been ordered to run concurrently.
3. The prosecution story as alleged by Ramesh Chandra, who is first informant as well as father of the victim girl aged about 13-14 years in his written report Ext. Ka-1, evidence of Ramesh Chandra PW-1 and victim girl PW-2 is that the first informant Ramesh Chandra had taken his minor daughter (victim girl) PW-2 aged 13-14 years from his house in village Baramau, Police Station Bewar, District Mainpuri to Viharai for administering anti rabies medicine and after administering the said medicine, he got his daughter seated in the bus going from Viharai to Mainpuri. Thereafter, the first informant left for Agra. The victim girl was to go to Palia at the house of her maternal grandfather (Nana). The victim girl along with her father and family members, previous to the incident of the gang rape, was residing at Palia at the house of her maternal grandfather. The bus in which the victim girl was traveling, Santram, Sughar Singh and Ram Sagar (accused appellants) residents of the village Palia were also sitting in the same bus. Dharmendra and Khem Chandra boarded the bus at Bus Stand Dannahar. When the bus halted at Audanya Mandal near Brahmdeo, the accused-appellants had forcibly dragged the victim girl down from the bus and then made her seated in the nearby parked jeep, where Satyapal and Karua resident of village Ahmadpur and one Rajesh resident of Nagla Kuan belonging to Sakya caste were already sitting in the same jeep. They took her in the jeep to Mainpuri and kept her at some house. At the house in Mainpuri, the victim girl was allegedly gang raped by six accused persons. After keeping the victim girl at Mainpuri for two days, all the aforesaid six accused persons are alleged to have taken her to Ahmedabad by sniffing her some substance and on cries, her mouth was gagged with the cloth. At Ahmedabad, all the six persons are alleged to have gang raped her. After two-three days, the accused persons Sughar Singh and Santram came back from Ahmedabad where one more person Data Ram, who was elder brother of the accused Ram Sagar also reached. Data Ram is also alleged to have raped her.
4. According to the testimony of the victim girl, the accused-appellant Ram Sagar used to compel her to marry him but she refused. Her signatures were forcibly secured on some papers by placing a pistol on her temporal part threatening to kill her.
5. The victim girl was allegedly recovered on 1.2.2003 at 9:20 a.m. by S.I. Fakire Lal Verma, Investigating Officer PW-7 in the presence of father of the victim girl from culvert of canal Javapur. At the time of the alleged recovery, the victim girl was alone and she was taken by the police in possession. Memo of recovery of the victim girl Ext. Ka-10 was prepared by the Investigating Officer PW-7. When the victim girl was recovered, H.C.P. Ram Singh, constables Satyendra Singh and Ram Gopal of Police Station Dannahar, District Mainpuri were also in the team of the Investigating Officer PW-7.
6. The first informant Ramesh Chandra PW-1 under his handwriting prepared the written report of the incident Ext. Ka-1 and handed the same over at Police Station Dannahar, District Mainpuri where the first information report at Crime No.54 of 2003 under Sections 363, 366 I.P.C. was registered against three accused-appellants on 25.1.2003 at 8:45 p.m., after one month of the said incident, showing distance of place of occurrence from the police station as 8 kilimeters.
7. The short facts of the first information report are that on 25.12.2002, the victim girl was taken by her father PW-1 to Viharai for administering anti rabies medicine. After administering the said medicine, PW-1 got her seated in the bus going to Mainpuri and she was to go from Mainpuri to Palia, thereafer the first informant left for Agra. When he came back to Palia after a week, he did not find his daughter there, then he made search for her and he was informed by witnesses Dharmendra and Hem Chandra that they had seen the victim girl going in the bus with the accused-persons on 25.12.2002. These witnesses knew the victim girl as well as the accused-persons prior to the fact of seeing the victim girl in the company of the accused-persons in the bus. The Sasural of the first informant Ramesh Chandra was at Palia where the victim girl used to visit the house of her maternal grandfather (Nana). The accused-person Ram Sagar was also on visiting terms at the house of the maternal grandfather of the victim girl prior to the incident. An apprehension about enticing away of the victim girl by the accused-persons was expressed by father of the victim girl in the written report Ext. Ka-1.
8. Chik FIR Ext. Ka-6 was prepared on the basis of the written report by H.C.P. Surendra Singh PW-6 who proved Chik FIR Ext. Ka-6 and also its G.D. entry Ext. Ka-7. The investigation of the case was handed over to S.I. Fakire Lal Verma PW-7. Prior to him, previous investigation was made by S.I. Tej Singh and after death of S.I. Tej Singh, the investigation was entrusted to PW-7. He noted memo of recovery of the victim girl in the case diary on 1.2.2003 and recorded statement of the aforesaid witnesses on 2.2.2003.
9. After medical examination of the victim girl, her statement under Section 164 Cr.P.C. was also recorded. After collecting evidence, the Investigating Officer PW-7 submitted the charge sheet Ext. Ka-8 against the accused-appellants under his handwriting and signature. He also proved the site plan Ext. Ka-9 having been prepared by S.I. Tej Singh. PW-7 also proved recovery memo of the victim girl Ext. Ka-10. After statement of the victim girl was recorded, she was given in custody of her father in compliance of the order dated 5.2.2003 passed by the Chief Judicial Magistrate, Mainpuri, preparing memo Ext. Ka-11.
10. Fakire Lal Verma PW-7, Investigating Officer during cross examination candidly admitted that he has mentioned the time of recovery of the victim girl at 9:20 a.m. showing place of recovery as culvert of Javapur and he did not prepare the site plan of the place of the alleged recovery. How the Investigating Officer PW-7 came to know about the place of the recovery of the victim girl was not mentioned by him in the recovery memo and he did not try to join some independent person of that place at the time of the alleged recovery. He denied defence suggestion that the recovery memo was prepared at the police station showing false recovery of the victim girl at the said time from the said place.
11. Dr. Smt. Sunita Sharma PW-3 examined the victim girl Km. Mamta on 1.2.2003 at 4:00 p.m. at Woman District Hospital, Mainpuri and after examination, prepared her injury report Ext. Ka-3, according to which secondary sexual characters were well developed. There was no external mark of injury anywhere on the body and undergarment was not stained with blood or semen. On local examination, hymen was found torn with old healed tags of membrane. There was no oozing of blood or swelling around hymen. One finger entered with difficulty into vagina and uterus was of normal size. The vaginal smear was taken and sent to the pathologist for examination of presence of spermatozoa. The victim girl was referred to the Radiologist, District Hospital Mainpuri, for x-ray of right elbow and right wrist for confirmation of the age.
12. Dr. Smt. Sunita Sharma PW-3 on the basis of the vaginal smear report and x-ray report prepared supplementary report dated 7.2.2003 Ext. Ka-4 mentioning that no opinion regarding rape was possible. No spermatozoa was found in the vaginal smear report. PW-3 also deposed that as per x-ray report, right wrist - line of fusion was present in the radius, in right elbow - all bony points were fused. For confirmation of the age, the case was discussed with Chief Medical Superintendent, Woman Hospital Mainpuri. She was referred to C.M.O. Mainpuri along with x-ray plate for confirmation of the age.
13. Dr. R.D. Yadav PW-4 Pathologist tested and prepared vaginal smear report Ext. Ka-2. No spermatozoa was found therein.
14. Dr. P.K. Pathak PW-5 Radiologist, District Hospital Mainpuri, prepared x-ray report of the victim girl Ext. Ka-5 on 3.2.2003 after perusing x-ray plate Ext. 1, according to which right wrist- line of fusion was present in radius, in the right elbow- all bony points were fused.
15. The accused-appellants were charged under Sections 363, 366, 376 I.P.C. on 14.8.2003 to which they pleaded not guilty and claimed to be tried on the said charges.
16. The prosecution in order to prove the charges levelled against the accused-appellants examined first informant father of the victim girl, Ramesh Chandra PW-1 and the victim girl PW-2 as fact witnesses.
17. The prosecution also examined Dr. Smt. Sunita Sharma PW-3, Dr. R.D. Yadav Pathologist PW-4 and Dr. P.K. Pathak Radiologist PW-5 to prove medical reports of the victim girl. H.C.P. Surendra Singh PW-6 was also examined to prove Chik FIR Ext. Ka-6 and its G.D. entry Ext Ka-7 and S.I. Fakire Lal Verma Investigating Officer PW-7 proved Ext. Ka-8 to Ext. Ka-11.
18. All the accused-appellants when examined under Section 313 Cr.P.C. expressed their ignorance about the incident saying that false charge sheet was submitted against them and witnesses gave false evidence due to enmity. Each of them stated that the first informant Ramesh Chandra had murdered his Chachiya Sas/ cousin mother-in-law in which murder case, the accused persons showing interest took lead in fighting the case and in that murder case, the first informant Ramesh Chandra was awarded life imprisonment and due to that enmity, false case was fabricated against them.
19. Before analyzing and discussing the evidence, a look at the fact witnesses is necessary. As stated above, the first informant PW-1 and the victim girl PW-2 were examined by the prosecution at trial in the ocular testimony. According to the evidence of Ramesh Chandra PW-1, he had taken his victim daughter aged about 13-14 years to the village Viharai for administering anti rabies medicine as the victim girl was bitten by some dog on 25.12.2002 and after administering anti rabies medicine, he got his daughter seated in the bus to go to her maternal grandfather's house (Nana) at Palia and PW-1 went to Agra for some work where he was daily wager. PW-1, after 6-7 days came to his Sasural at Palia, he did not find his daughter victim girl there and on inquiry, he was told that the victim girl had not reached at Palia. PW-1 tried to find out his missing daughter at the house of his relatives but of no avail. During search, PW-1 was informed by two persons of the different village namely Dharmendra and Hem Chandra that they had seen his daughter on 25.12.2002 when they were also travelling in the same bus for coming to Mainpuri, the victim girl was sitting in the same bus with the accused persons Ram Sagar, Sughar Singh and Santram. The accused-persons and the victim girl alighted from the bus at Audanya Mandal. PW-1 knew the accused persons prior to the incident of the alleged gang rape as they used to visit house of the father-in-law of PW-1.
20. According to the evidence of Ramesh Chandra PW-1, his daughter victim girl was found after more than one month. PW-1 got the written report of the incident scribed by Sarvesh Kumar Shakya which PW-1 proved as Ext. Ka-1. PW-1 further deposed that his daughter victim girl was recovered by the police from possession of one of the accused persons Ram Sagar near culvert of Javapur. Recovery memo Ext. Ka-10 was prepared by the police on 1.2.2003 which was signed by PW-1.
21. It emerges from cross examination of Ramesh Chandra PW-1 that his Sasural was at Palia and name of his father-in-law was Radhey Shyam who had no sons. His father-in-law had one more brother namely Siya Ram and Siya Ram did not have any son as well. PW-1 candidly admitted in cross examination that Smt. Rampoti wife of Siya Ram was murdered and the murder case was prosecuted against Radhey Shyam, father-in-law of PW-1, Sheelu and PW-1. In the murder case of Smt. Rampoti, PW-1 and his father-in-law were awarded life imprisonment in the year 2004. PW-1 prior to the alleged incident of gang rape was residing at the house of his father-in-law Radhey Shyam and some proceedings were also initiated regarding some forged Will in which PW-1 claimed to be marginal witness. PW-1 had passed class 10th. PW-1 was Shakya by caste and the accused persons were Dhobi by caste. PW-1 was labourer at Agra and was living alone there without his family. PW-1 had taken his daughter victim girl to some private person in village Viharai which was five kilometers from Police Station Dannahar for making her drink water mixed with medicines because his daughter had been bitten by the dog. Ramesh Chandra PW-1 was informed of having seen his daughter in the company of the accused persons in the bus on the date of the incident by Dharmendra after 4-5 days of the incident when Dhemendra met PW-1.
22. It comes out from close scrutiny of the testimony of Ramesh Chandra PW-1 that PW-1, after leaving his daughter victim girl in the bus going to Mainpuri on the day of the alleged incident namely 25.12.2002 as the victim girl was to go to Palia by bus, PW-1 did not try to know from his father-in-law and any person from his Sasural for 6-7 days about welfare of his daughter victim girl whether she had reached the place where she was to reach in village Palia at the house of the father-in-law of PW-1. When PW-1, after 6-7 days of leaving his daughter in the bus, reached his Sasural at Palia, he came to know about missing of his daughter victim girl. Thus he made a search about his missing daughter in the first week of January, 2003 during which period he was informed by Dharmendra and Hem Chandra that both of them had seen the victim girl on 25.12.2002 when she was sitting in the bus with the accused persons and the accused persons with the victim girl alighted from the bus at Audanya Mandal. If this part of evidence of PW-1 is believed and is taken to be true then he must have been apprised from Dharmendra and Hem Chandra that the victim girl was travelling in the same bus with three accused persons, even then PW-1 preferred to wait till 25.1.2003 and did not lodge the first information report and it was on 25.1.2003, PW-1 lodged the first information report of the incident at Police Station Dannahar, which was just 8 kilometers from village Audanya Mandal. There is no mention about lodging of the first information report after one month of the incident and the first information report registered on the basis of the written report Ext. Ka-1 adopted complete reticence. It is worthy to note here that PW-1 did not mention the time when he left his daughter victim girl in the bus for going to Mainpuri. Even regarding time, evidence of PW-1 is complete silent. PW-1 was life convict in the murder of the wife of elder brother of his father-in-law. The date of murder of Smt. Rampoti and date of the conviction have not been disclosed by PW-1 in his evidence at trial.
23. The victim girl PW-2 reiterating the prosecution story deposed at trial that on the day of the incident i.e. 25.12.2002 she went with her father to drink medicine for curing dog bite as she had been bitten by some dog and after getting her the said medicine drunk in village Viharai, her father making her sit in the bus going to Mainpuri, left the place. She was to go to village Palia at the house of her maternal grandfather (Nana) from Mainpuri. Prior to the incident, her father along with family used to reside in village Palia several years ago. The bus in which she was sitting, the accused persons Ram Sagar, Sughar Singh and Santram Dobhi met her in the same bus. Dharmendra and Hem Chandra were also sitting in the same bus. At the bus stop Audanya Mandal near Brahmdeo, she was got alighted from bus by the accused persons where in the nearby parked jeep, Satyapal, Karua and Rajesh were present.
24. The victim girl PW-2 further deposed that all three accused persons forcibly took her in the said jeep to Mainpuri and kept her there in some house and gang raped her for two days. Thereafter, they took her in jeep to Ahmedabad and made her smell some substance. When she cried, her mouth was gagged by them. All these accused persons raped her at Ahmedabad in a room for two to three days. Thereafter two accused persons Sughar Singh and Santram came back from Ahmedabad. When she was in Ahmedabad with one accused person Ram Sagar, one Data Ram elder brother of the accused person Ram Sagar also reached Ahmedabad where Data Ram also raped her. During her stay at Ahmedabad, one accused person Ram Sagar used to compel her to marry him but she refused. On refusal to marry him, the accused Ram Sagar put a pistol at temporal portion threatening her to sign on some papers.
25. It emerges from cross examination of the victim girl PW-2 that since her maternal grandfather (Nana) had only daughters and no son, her father started living at Palia. The victim girl PW-2 was born at Baramau where she was fostered. Her father met her after one and half month of the incident at Ahmedabad. According to her evidence when she was travelling in the bus, several persons of village Palia were also sitting and travelling in the same bus and when the bus stopped at Audanya Mandal, she alighted from the bus and then six accused persons had forcibly dragged her in the jeep around 3:00 p.m., who made her unconscious and she regained consciousness after four days when she found herself at Mainpuri in the room of the accused persons. There were several houses around the room where she was kept in a room at Mainpuri, she used to urinate and ease out in the same room and she did not go for the same outside. Her father came to Mainpuri from Dannahar with the police. PW-2 got her class 8th passed that year. She was kept in the room at Ahmedabad and when she reached at Ahmedabad, she was conscious. She stayed at Ahmedabad for about 27 days during which period she cooked meals. The accused persons used to bring vegetables and she used to cook the food. The accused persons did not go to work and all of them stayed in the same room as tenants. PW-2 candidly admitted that a case of murder of Jethani of her maternal grandmother (Nani) was initiated against her maternal grandfather and her father. PW-2 denied the defence suggestion that her father fabricated a Will from the deceased. Her maternal grandfather and father were awarded life imprisonment in that murder case. She denied the defence suggestion that she was not kidnapped and was not raped by the accused persons and her father left her at some place with an intent to fabricate this false case.
26. The first contention of the learned amicus curiae for the appellants is that the victim girl PW-2 is wholly unreliable and untrustworthy witness and it is not safe to put reliance upon her testimony and uphold the conviction made by the impugned judgment. The first interrogatory statement of the victim girl was immediately recorded by the Investigating Officer just after the alleged recovery on 1.2.2003 in which she stated that the bus in which her father got her seated for going to Mainpuri from Viharai, all the accused persons / appellants were previously travelling in the same bus and when she boarded the bus, they were also sitting in the same bus. The appellants alighted along with her from the bus at Audanya Mandal, bus stop by misleading her and the appellants forcibly dropped her in a nearby parked jeep and took her to their house in Mainpuri where she was detained for three days.
27. According to interrogatory statement of the victim girl, only one accused appellant Ram Sagar had forcibly intercourse with her and thereafter the appellants took her to Ahemdabad. It was only one accused appellant Ram Sagar who had intercourse with her at Ahemdabad as well and when she opposed, she was beaten by the appellant Ram Sagar. The remaining two appellants Sughar Singh and Santram after staying at Ahmedabad for two to three days came back and thereafter the appellant Ram Sagar attempted to marry her by force at Ahmedabad but she was not ready for the marriage. When she did not become ready to marry the appellant Ram Sagar, he brought her back from Ahmedabad to Mainpuri and when he was taking her to the house of his relative in district Mainpuri, they were arrested by the police.
28. It is evident from the testimony of the victim girl PW-2 that she was interrogated for the first time by the Investigating Officer on 1.2.2003 itself the day she was recovered in the presence of her father. Her statement under Section 164 Cr.P.C. was got recorded by the Investigating Officer before the Magistrate on 5.2.2003 wherein she stated that she was raped by all the three appellants as well as Satyapal, Karua and Rajesh in a room at Mainpuri for three to four days. At Ahmedabad, she was raped by three appellants and their elder brother Data Ram. The Investigating Officer PW-7 mentioned in the case diary on 4.9.2003 that the investigation was made in the light of the statement of the victim girl under Section 164 Cr.P.C. in which she added four more persons as rapists besides three appellants. The Investigating Officer came to the conclusion that the victim girl at the instance of her parents had made allegation of rape against the accused Satyapal, his son Karua, Rajesh and one Data Ram on account of enmity. The statement of the victim girl under Section 164 Cr.P.C. was found false and baseless so far as it involved four more persons as rapists in addition to the three appellants by the Investigating Officer PW-7.
29. The Investigating Officer PW-7 accordingly submitted charge sheet only against the three accused persons/appellants exonerating remaining four persons though named by her in her statement under Section 164 Cr.P.C. The Investigating Officer PW-7 while submitting charge sheet on 19.2.2003 against the appellant under Sections 363, 366, 376 I.P.C. clearly mentioned that no certificate of Chief Medical Officer, Mainpuri, about age of the victim girl had been made available hence Titamma charge sheet will be filed after receiving age certificate from Chief Medical Officer, Mainpuri.
30. It is pertinent to mention here that an application Paper No.45-B moved by the victim girl through counsel, was submitted through concerned A.D.G.C. (Crl.) under Section 319 Cr.P.C. before the trial court on 2.9.2005 after evidence of the victim girl was over but that application was never allowed by the trial court.
31. Learned amicus curiae for the appellants vehemently argued that a perusal of the recovery memo of the victim girl, Ext. Ka-10 makes it evident that the victim girl was allegedly recovered on 1.2.2003 at 9:20 a.m. when she was alone and at the time of the alleged recovery, the Investigating Officer S.I. Fakire Lal Verma, PW-7, constables Ram Gopal, Satyendra Singh and Ramesh Chandra, father of the victim girl were present. It means that the victim girl was recovered by the police in the presence of her father and at the time of the said recovery, the accused Ram Sagar was not with her. Had Ram Sagar been actually present with the victim girl at the time of her recovery, recovery memo Ext. Ka-10 would have contained his signature or thumb impression whereas all the signatures of the other persons including police party were put on the recovery memo. If the recovery memo was actually prepared at the spot by the Investigating Officer as claimed by the Investigating Officer then there was no hurdle in showing the presence of the accused appellant Ram Sagar with the victim girl at the time of the recovery at the said place. If the accused appellant Ram Sagar was really present, his signature might have been obtained on the recovery memo.
32. All these facts go to show that the victim girl was not recovered from the possession of the accused appellant Ram Sagar on 1.2.2013 at 9:20 a.m. but she was alone and recovery memo was subsequently prepared at some other place by the Investigating Officer, possibly at Police Station Dannahar, District Mainpuri. Contrary to the contents of the recovery memo Ext. Ka-10, G.D. entry No.19 dated 1.2.2003 Time 10:30 a.m., Police Station Dannahar, District Mainpuri, mentions that the Investigating Officer S.I. Fakire Lal Verma, PW-7 and two police personnel in presence of father of the girl arrested one accused Ram Sagar and the victim girl on 1.2.2003 at 9:20 a.m. and the accused was lodged in male lockup and the victim girl was made to sit in the Police Station.
33. This recovery was allegedly made on some tip off, that the victim girl and her lover Ram Sagar were waiting at culvert of canal Javapur for some transport when the first informant Ramesh Chandra, father of the victim girl near that place was spotted by the police. The victim girl and the accused Ram Sagar were sitting at the said culvert who were identified by father of the victim girl. These facts are sufficient to create suspicion in the mind of this Court about recovery of the victim girl along with the accused appellant Ram Sagar at the said time, date and place. Thus recovery of the victim girl is completely doubtful and unreliable. The contention of the learned amicus curiae for the appellants, after going through evidence on record, finds substance and full force and it is not possible to repel the same.
34. One more contention raised by the learned amicus curiae for the appellants is that after four or five days of the alleged enticing away of the victim girl by the accused appellants, her father PW-1 had knowledge of the said enticing away of the victim girl but he kept mum for about one month and without explaining any reason for the delay, he lodged the first information report after one month i.e. 25.1.2003. Learned AGA has not explained the delay satisfactorily.
35. Learned amicus curiae for the appellants has laid emphasis on the age of the victim girl at the time of the incident and submitted that the doctor who prepared supplementary report did not indicate even approximate or estimated age of the victim girl. Supplementary report mentions that the matter was discussed with Chief Medical Superintendent, Woman Hospital, and referred to Chief Medical Officer, Mainpuri, for sending opinion about her age. This is a peculiar case in which the matter of age remained pending between Chief Medical Superintendent and Chief Medical Officer what to say the lady doctor PW-3 who clearly gave finding about fusion in the wrist joints and elbow. Had x-ray been scanned, it would have appeared that the victim girl was certainly above 18 years of age at the time of her medical examination and that was the only reason neither Dr. Smt. Sunita Sharma PW-3 nor Chief Medical Superintendent, Woman Hospital or Chief Medical Officer, Mainpuri gave any certificate regarding estimated age of the victim girl and all of them kept mum indicating that there was something unusual for withholding the important medical document of her age. Even the Investigating Officer PW-7 filed charge sheet against the appellants without obtaining any evidence about age of the victim girl. The Investigating Officer completed formality mentioning in the case diary that Titamma charge sheet / subsequent charge sheet will be filed after receipt of the age certificate of the victim girl from Chief Medical Officer, Mainpuri. This contention of the learned amicus curiae has also cogent and solid substance and there is no reason to repel the same.
36. Per contra, learned AGA has submitted that one scholar's register and transfer certificate of Mahakavideo Inter College, Kusamra, Mainpuri dated 24.1.2003 is on record which indicates that the victim girl passed her class 8th in the session between 1.7.2001 to 30.5.2002, in which date of birth of the victim girl has been mentioned as 15.3.1989. This certificate was issued by Principal of the said college on 24.1.2003 whereas the first information report of the incident was lodged on 25.1.2003 i.e. next day after procuring the certificate.
37. After going through the said certificate, learned amicus curiae for the appellants has submitted that this certificate has never been proved by the school authority who prepared and issued the same. The proof of the said certificate was mandatory before its acceptance by the trial court. It is true that this paper was simply placed on record but was not proved at trial and on the basis of this unproved document, the learned trial court convicted the appellants finding the victim girl as minor. After going through the said certificate, hearing submissions on the same and adverting to the fact that the said certificate was not proved or still has not been proved by the prosecution, it cannot read in evidence. Thus this paper can be said to be waste paper without proof and such paper cannot be made the basis of the important fact of the age of the victim girl particularly when medical age was never allowed to come on record by the prosecution or by competent medical authority or police agency.
38. Learned amicus curiae for the appellants meekly submitted that the prosecution story as alleged by the prosecution is totally fabricated, quite improbable and unnatural in the facts and circumstances of the case and nature of the evidence adduced at trial. The victim girl was made to sit in the same bus by her father in which all the three accused person familiar to one another were previously travelling. It has come in the evidence of the victim girl that the accused persons were talking to her during their journey. The victim girl alighted from the bus at the bus stop where several other passengers also alighted from the bus and the victim girl kept mum throughout and raised no alarm and did not make any protest particularly when she was being taken in nearby parked jeep and she was in easy taken to Mainpuri where she stayed for several days in a rented house in which three appellants who are real brothers stayed together and raped her. The rented house was in the residential area where there were several houses and the persons were living along with their families and in the same room, family members of the two appellants Sughar Singh and Santram were residing.
39. Not only this, the victim girl was taken by the appellants by train to Ahemdabad, prominent city in the State of Gujarat. The journey by train might have taken more than forty hours in reaching the destination and the victim girl remained with three appellants (real brothers) throughout journey in train without raising alarm, noise or protest. After two days, two appellants Sughar Singh and Santram who were elder brothers of the accused Ram Sagar left the girl with the accused Ram Sagar and the duo came back from Ahmedabad. During her stay with the appellant Ram Sagar, she never protested for about 27 days. When money fell short, the appellant Ram Sagar and the victim girl were coming back to Mainpuri from Ahmedabad. When they came back to Mainpuri, as per the prosecution, both of them were spotted sitting nearby culvert of canal Javapur. The victim girl was easily sitting with the appellant Ram Sagar and waiting for some transport to go to the house of his relative. The victim girl did not try to flee or run away from the place where she was sitting with the appellants Ram Sagar.
40. The victim girl stayed with the appellant Ram Sagar since 25.12.2002 to 1.2.2003 i.e for more than one month. According to her interrogatory statement which was promptly recorded, only one appellant Ram Sagar had sexual intercourse with her repeatedly during their stay together at Mainpuri and Ahmedabad. The testimony of the victim girl PW-2 appears to be improbable, untruthful and uncreditworthy in the facts and circumstances of the case. The strong possibility is that all the three appellants who are real brothers, have been falsely implicated in this case of gang rape. The evidence makes it evident that all the three appellants were residents of the same village as that of maternal grandfather of the victim girl where the victim girl was residing several years prior to the incident and both the parties were on visiting terms at the house of the maternal grandfather of the victim girl. The appellants belonged to the village where maternal grandfather, Radhey Shyam of the victim girl was residing. Bhabhi of Radhey Shyam was murdered before this incident of rape and in that murder case, Radhey Shyam, Nana of the victim girl and PW-1 Ramesh Chandra were awarded life imprisonment in the year 2004. Since the trial ended in the year 2004, naturally the murder might have taken place sometime near the incident of rape. The date of murder of Bhabhi of Radhey Shyam and the date of conviction have not been disclosed during evidence by PW-1 and PW-2. Thus Ramesh Chandra father of the victim girl was already being prosecuted for murder of his Chichiya Sas along with his father-in-law Radhey Shyam and it is not safe to place reliance on the testimony of Ramesh Chandra PW-1. Since PW-1 and his father-in-law were being prosecuted for the said murder which was committed in the village of the accused persons, the accused persons took a lead in bringing them to book and the case ultimately ended in life imprisonment, hence their false implication of the appellants cannot be ruled out.
41. Hon'ble Supreme Court in the case of Narender Kumar Vs. State (NCT of Delhi) (2012) 7 SCC 171 held in paragraph no. 20 that it is a settled legal proposition that once 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 not 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.
42. Hon'ble Supreme Court in the case of Narender (supra) further held in paragraph no. 21 that 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 (sic circumstantial), which may lend assurance to her testimony (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P. (2003) 3 SCC 175 : 2003 SCC (Cri) 596 : AIR 2003 SC 818 and Vishnu v. State of Maharashtra (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 : AIR 2006 SC 508.
43. Hon'ble Supreme Court in the case of Narendra (supra) further held that the court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.
44. Hon'ble Supreme Court in the case of Narendra (supra) further held that however, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
45. Hon'ble Supreme Court in the case of Narendra (supra) also held that the prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.
46. The Hon'ble Apex Court in Sunil Vs. State of Haryana, 2010 (68) ACC 279 (Supreme Court) in paragraph 33 thereof has observed that- ".... In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe for conviction on an approximate date."
47. Thus, in the case in hand, the trial judge in spite of recording a finding that the prosecutrix was minor on the date of the incident, has recorded the conviction of the accused appellants under Sections 363, 366 and 376 I.P.C. even though there were many infirmities, holes and lacunas in the prosecution version. The prosecution appears to have deliberately withheld and suppressed the material fact and true genesis of the case. The girl was repeatedly raped by six or seven persons including the three appellants without even any bruise on her person or private parts.
48. In Alamelu and another Vs. State, 2011 (74) ACC 201 (Supreme Court), the Hon'ble Apex Court in paragraph 45 thereof has observed as under:-
" ...... The girl, according to the prosecution, was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A-1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behaviour of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A-1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A-1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of P.W. 5. Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A-1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse."
49. The first informant Ramesh Chandra PW-1 in his written report Ext. Ka-1 and in his evidence at trial claimed that his daughter victim girl was aged about 13-14 years on the day of the incident. PW-1 was class 10th passed and if the date of birth certificate of his daughter issued by the school on 24.1.2003 was genuine and true, he did not mention a single word about that certificate and he remained quite silent about the date of birth of his daughter victim girl. The victim girl PW-2 also did not disclose her date of birth in her evidence at trial. Her evidence at trial is quite silent about her age. She nowhere mentioned her age in her evidence. As discussed above, the school certificate regarding her age is not reliable due to lack of proof.
50. If medical evidence is considered, her vagina could allow entry of one finger hardly in spite of the fact that she was gang raped by as many as seven persons out of whom four were real brothers. All the three appellants being real brothers are incarcerated in jail since 22.7.2006 i.e. the date of their conviction and maximum sentence awarded to them is ten years rigorous imprisonment. Their incarceration in jail in this case is about seven years. Thus it is very unfortunate that they have to serve about seven years in jail in this case when the findings recorded by the trial Judge are perverse and are based on improper and incorrect exercise of judicial discretion. All the conclusions drawn by the trial Judge are imaginary and beyond the evidence on record. The approach of the trial Judge in recording conviction of the appellants is quite improper.
51.In view of the above discussions, I am of the considered opinion that the prosecution has failed to prove charges under Sections 363, 366 and 376 I.P.C. against the appellants beyond reasonable doubt. It appears that the entire prosecution story had been concocted for the reasons best known to the prosecution by concealing true genesis of the crime. In such a situation, all the appellants are entitled to the benefit of doubt though they have already served about seven years in jail without there being any legal evidence against them. All the findings and conclusions recorded by the Additional Sessions Judge, FTC No.1, Mainpuri, in Session Trial No.141 of 2003 State Vs. Ram Sagar and two others, relating to Crime No.54 of 2003, Police Station Dannahar, District Mainpuri, vide impugned judgment and order dated 22.7.2006 are set aside. Ram Sagar appellant no.1, Sughar Singh appellant no.2 and Santram appellant no.3 are acquitted of the said charges. They are directed to be released from jail forthwith if not wanted in any other criminal case.
52.In the result, the instant criminal appeal succeeds and is, accordingly, allowed.
53.Let a copy of this judgment be communicated to the court concerned for ensuring strict compliance.
Dt. 11.7.2013 rkg