Allahabad High Court
Rinku vs State Of U.P. on 10 May, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 27 Case :- CRIMINAL APPEAL No. - 3129 of 2014 Appellant :- Rinku Respondent :- State Of U.P. Counsel for Appellant :- Gaurav Kakkar,Arvind Kumar,Ch. Arvind Kumar Counsel for Respondent :- Govt.Advocate,Surendra Kumar Tripathi Connected with Case :- CRIMINAL APPEAL No. - 3435 of 2014 Appellant :- Surendra Kushwaha Respondent :- State Of U.P. Counsel for Appellant :- Rajul Bhargava,M.P.Pandey Counsel for Respondent :- Govt.Advocate,Surendra Kumar Tripathi Hon'ble Mrs. Ranjana Pandya,J.
1. Since both the afore-captioned criminal appeals have been filed against the judgment and order dated 05.08.2014 passed by the learned Additional Sessions Judge, Court No. 15, Agra in Sessions Trial No. 510 of 2010 (State vs Surendra Kushwaha) and Sessions Trial No. 885 of 2010 (State vs Rinku), hence they are being decided by this common order.
2. Challenge in these appeals is to the judgment and order dated 05.08.2014 passed by the learned Additional Sessions Judge, Court No. 15, Agra in Sessions Trial No. 510 of 2010 (State vs Surendra Kushwaha) and Sessions Trial No. 885 of 2010 (State vs Rinku) arising out of Case Crime No. 387 of 2009, under Sections 363, 366, 376 IPC, Police Station Barhan, District Agra, whereby the accused appellants Surendra Kushwaha and Rinku have been convicted and sentenced to four years' rigorous imprisonment and a fine of Rs. 5000/- each under Section 363/34 IPC; five years' rigorous imprisonment and a fine of Rs. 5000/- each under Section 366/34 IPC and ten years' rigorous imprisonment and a fine of Rs. 20,000/- each under Section 376(2)(g) IPC with default stipulation. Out of the fine amount so deposited by the accused-appellants, 60% of the same was directed to be paid to the victim. The accused Pramod was declared juvenile.
3. Filtering out the unnecessary details, the case of the prosecution in short compass is that the informant Ramesh Kumar has given a written report, Ext. Ka-1 at 11.30 a.m., to the police station Barhan, district Agra scribed by Suresh Chandra to the effect that his daughter, the victim aged 14 years had gone to Government Intermediate College, Barhan on 7.12.2009 where she was studying in Class-X. She used to come back home at 4.00 p.m., but on that date, she did not return. A hectic search was made, but she could not be traced out. An acquaintance of the informant Gulab Singh, PW 2, resident of Barhan told him that on Monday, he saw the accused Surendra, Narottam Singh, Neeraj, Rinku and Praveen all resident of Barhan and Triloki, resident of Nagla Maddey talking each other at Gobal crossing. The victim was also standing near them fearfully. When the informant went to their houses, they were not present. Their family members did not provide any information to him and rather started quarreling with him.
4. On the basis of the aforesaid written report, the then Constable-Clerk Bhagwan Singh, PW 8 prepared the chik FIR, which was proved as Ext. Ka-11 and report was lodged against the accused at case crime No. 387 of 2009, under Sections 363, 366 IPC, which was entered in the G.D. at serial No. 20 at 11.30 AM on 10.12.2009, copy whereof has been proved as Ext. Ka-12.
5. After registration of the case, primary investigation of the case was entrusted to S.I., Satpal Singh. Thereafter, the investigation of the case was transferred to S.I., Vijay Singh, PW-7, who recovered the victim from Railway Station, Barhan and prepared its recovery memo as Ext. Ka-3 and prepared the site plan of the recovery and proved the same as Ext. Ka-8. After recovery, the victim was sent to the District Women Hospital, Agra. The Investigating Officer, after collecting the medical report, requested the Magistrate concerned for recording the statement of the victim under section 164 Cr. P.C. which was proved as Ext. Ka-4. He inspected the place on the pointing of the victim and prepared site plan and proved as Ext. Ka-9. After giving the victim in the custody of her father, he prepared Supurdginama and proved it as Ext. Ka-2.
6. To bring home the guilt of the accused, the prosecution has examined as many as 11 witnesses.
7. PW-1 is Ramesh Kumar, the informant of the case. He reiterated the versions given in the written report. He produced the photocopy of the certificate of High School of the victim. He further stated that when he was searching his daughter, he came to know that the victim had been recovered by the police from the Railway Station. On being asked, the victim told that Surendra, Rinku and Promod alias Triloki had left her and ran away.
8. PW-2, is Gulab Singh. He deposed that on 07.12.2009 at 8.00 in the morning when he was returning to Barhan via Gobal crossing, he saw Surendra Kushwaha, Promod and Rinku Thakur on two motorcycles. The victim was sitting on the motorcycle of Surendra. She became fearful after seeing him. Surendra, Pramod and Rinku were talking to each other. He knew all the three from before. He also knows the victim from before. On the third day, he came to knew that Ramesh Kumar and his family members were searching the victim. Thereafter, he told Ramesh what he had seen.
9. PW-3 is Suresh Chandra. He is the brother of the informant. He deposed that the incident took place on 07.12.2009. He was not present at the place of occurrence. On 09.12.2009 at about mid-night, he came back village from service. On the next day, his brother asked him to write the first information report. He wrote the report on the dictation of his brother. This witness has further stated that the victim was recovered in his presence from the railway station and handed over to the informant. This witness has proved Supurdginama and recovery memo.
10. PW-4 is the victim of the case. She deposed that on 07.12.2009 she was going to Gandhi Ashram Coaching Institute from her house. There, she saw Surendra, Rinku and Promod. Pramod caught her hand and got her to sit on the motorcycle. Accused Rinku and Surendra sat on another motorcycle. When she cried, accused Surendra put a cloth on her mouth, consequently, she became unconscious. When she regained consciousness, she saw that accused Surendra, Rinku and Promod were taking her off from a Maruti car. When she cried, accused Surendra slapped her. Thereafter, the accused kept her in a closed room. Thereafter, all the three raped her one by one. The victim was got confined for seven days. Sometimes accused gave her tea and biscuit. On 14.12.2009, accused left her at the railway station near her house. After sometime, police reached at the spot.
11. PW-5 is Dr. S.K. Kulshrestha. He deposed that on 15.12.2009, he was posted at District Women Hospital, Agra in the pathology department. On that date, he received semen smear from Constable 1348 Ramesh Chandra, PS Barhan. After examination, no spermatozoa was found.
12. PW-6 is Dr. Sunita Sagar. She deposed that on 14.12.2009, she was posted at District Women Hospital, Agra. On that date, she examined the victim at 1.30 PM, who was brought by Homeguard 1910 Primila Dubey. This witness has stated that on external examination, she found no mark of injury on her body. On internal examination, this witness noticed that there was no injury on her private part. Hymen was old torn. The vagina was admitting two fingers easily. After taking the vaginal smear, the same was sent to the pathologist. For ascertaining the age of the victim, she was referred to the Chief Medical Officer, Agra. After receiving the pathological report and x-ray report, she prepared the supplementary report and proved it as Ext. Ka-7. As per supplementary report, no spermatozoa was found and the age of the victim was found 16 years. However, no definite opinion about rape was given. The medical report of the victim has been proved by this witness as Ext. Ka-6.
13. The evidence of PW 7 and 8 have already been discussed above.
14. PW-9 is S.I., Laxman Singh. He deposed that after the transfer of S.I., Vijay Singh, further investigation of case crime No. 387 of 2009 was done by him. Accused Rinku surrendered before the court and his statement was recorded by this witness while he was in jail. This witness has proved the charge sheet as Ext. Ka-13.
15. PW-10 is Dr. Shri Ram. He deposed that on 10.12.2009 he was posted as Additional Chief Medical Officer, Agra. On that date, the victim was produced before him by the police of police station Barhan. For ascertaining her age, x-rays of wrist, elbow and clavicle were done. As per x-ray report, epiphysis of elbow joint was fused, whereas epiphysis of wrist and clavicle was not fused. The age of the victim was found to be 16 years. He proved the X-ray report as Ext. Ka-14.
16. PW-11 is Santosh Kumar Sharma, the principal of Government Intermediate College, Barhan, Agra. He deposed that victim has taken admission in class IX on 15.7.2008 and till 30th June, 2010 she was the student of his school.
17. After close of the prosecution evidence, statements of accused persons were recorded under section 313 Cr.P.C., in which they denied the occurrence.
18. 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.
19. Feeling aggrieved, the accused have come up in appeal.
20. Heard Shri Gaurav Kakkar and Shri A.N. Tripathi, learned counsel for the appellants, learned Additional Government Advocate for the State respondent and perused the lower court record.
21. Learned counsel for the appellants have 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 appeals are liable to be allowed.
22. On the other hand, learned Additional Government Advocate has submitted that the findings of fact recorded by the trial court is based on evidence, which is clear, cogent and convincing. Hence, the appeals deserve rejection.
23. A submission has been advanced on behalf of the appellants that the occurrence is said to have been taken place on 07.12.2009, whereas report of the incident was lodged on 10.12.2009 at 11.30 a.m., the police station being 1 furlong away from the place of occurrence. This inordinate delay in lodging the FIR has not been explained, hence it casts a shadow of doubt on the whole prosecution case. No doubt, delay in cases of rape would not be fatal for the prosecution case, but it is expected that some explanation should definitely come forth for the delay. No doubt, delay in lodging the FIR by the victim or her parents in all circumstances is not significant, but the delay in lodging the FIR in the case under section 376 IPC would depend upon the facts of each case and the court should generally give immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors of the case. In the present case, the victim was missing from her house since 07.12.2009. In the usual course, she used to return by 4:00 p.m., but on the date of incident when she did not return, the informant made extensive search for his daughter, but she could not be traced. PW-2 Gulab Singh told him that he had seen the victim being taking away by Surendra, Narottam Singh, Neeraj, Rinku and Praveen. They were accompanied by Triloki. According the the FIR, there is no iota of evidence to state that to save the family from disrepute or since the reputation of the family was at stake, hence report was not lodged, but there is no reason why missing report was also not lodged by the father.
24. In Mohd. Ali @ Guddu vs State of U.P., (2015) 7 Supreme Court Cases 272, it has been laid down by the Hon'ble Apex Court that if the victim is missing from the house, generally the father or the mother, as the case may be, would rush to the police station to lodge the FIR, which has not been done in the present case. Although, the father has tried to show his anxious by averting that he went in search of his daughter, but what prevented him from lodging the report at the police station when he had come to know the names of the accused is a question which remains unanswered.
25. PW-1 Ramesh Kumar is the informant. According to him, the victim was a minor. Even in the examination-in-chief, he has not stated a word why he did not lodge the report on the same day when the girl did not return home, specially when he was told that the girl was seen with Surendra, Narottam Singh, Rinku, Triloki and Praveen and the informant had gone to the house of the accused to trace out his daughter. In cross-examination, the informant PW-1, Ramesh Kumar has stated that when his daughter did not return on the date of incident, he was suspicious. When the girl did not return home from school, he went to school first, the school was closed and kept on searching his daughter in vein on the roads. Although, this witness has stated that on 7, 8 and 9, the incident was not narrated to anybody due to repute of the family, but in the next breath, he has stated that on the date of incident itself, he had told his relatives about the missing of the girl. He has further stated that at the police station also an oral information was given on the date of incident. He has stated that he lodged a report on 14.12.2009. This statement is in contradiction of the record, according to which, the FIR was lodged on 10.12.2009. PW-2, Gulab Singh, who has stated that on 07.12.2009, he told the informant that he has seen the accused taking away the victim. Thus, this inordinate delay in lodging the FIR is fatal for the prosecution case.
26. Learned counsel for the appellants has submitted that the recovery of the victim is doubtful.
27. On the other hand, learned AGA while supporting the judgment of the trial court has submitted that there is no doubt about the recovery, which has been supported by the evidence on record. PW-1, Ramesh Kumar, the informant has not stated as to when the victim returned home, but he has stated that when they were tracing the girl, the victim was recovered by the police in his presence from the stairs of Barhan railway station.
28. The victim is PW-4, who has stated that on 14.12.2009, the accused persons left her near her house near the railway station and they fled away from there. After sometime, the police personnel came there and her father Ramesh Kumar and uncle Suresh Chandra were also present with the police personnel. She has also stated that when the accused brought her to the Barhan railway station, she was not in her sense. She was sitting on the stairs at the Barhan railway station 30 paces away from the ticket window. The recovery of the victim is said to have been effected by PW-7 S.O., Vijay Singh, who has stated that on 14.12.2009, the victim was recovered from the railway station Barhan on the basis of information of the informant. He also prepared the site plan relating to her recovery, which was proved as Ext. Ka-8. A perusal of the site plan, Ext. Ka-8 shows that the victim was recovered from point 'X', which is outside the railway station and the railway platform towards the open space, towards the north. The recovery memo prepared by the Investigating Officer is Ext.Ka-3, which was proved by PW-7 S.O., Vijay Singh. The recovery shows that the girl was sitting on the stairs, who was left there by Surendra, Rinku and Pramod. If this was the actual position and the house of the victim was from near the railway station, what was the reason why the victim kept on sitting on the stairs outside the railway station and did not rush to police or to her house.
29. PW-1 Ramesh Kumar has stated that the police did not done the likha-padhi at the railway station, whereas PW-4, the victim has stated that no likha-padhi was done at the railway station from where she was recovered. The informant, PW-1 Ramesh has stated that the police did not assist him in searching his daughter, whereas Gulab Singh, PW-2 has stated that on 14.12.2009, the police came to his house took him, his brother, the informant in the police jeep and took them to the surrounding villages. The police went along with the informant and the scribe to village Maddey ka Nagla, Nagla Chhabila and other villages, but this witness did not know the names of those villagers. Neither sub-inspector told him why they were taking the informant and this witness to those particular villagers.
30. As far as the evidence of the prosecutrix is concerned, generally in matters of rape, courts can specially rely upon the statement of the prosecutrix, it being placed on a higher pedestal than the injured witness, but it cannot be loose sight of that, if the evidence of the prosecutrix is shaky, improbable and unreliable, corroboration is sought for by the courts. The victim has stated that when she left her house at 7.30 a.m. on the way, she met Surendra, Rinku, Purushottam and Pramod caught her hand, pulled her and made her sit on his motorcycle. The accused Rinku and Surendra were sitting on another motorcycle. When the motorcycle was started by Pramod, the victim raised alarm, but Surendra made her smell some cloth, due to which she became unconscious. When she regained consciousness, Surendra, Rinku and Pramod were taking her out by a maruti car. Again she raised alarm, at which Surendra slapped her. When this witness was asked as to why she did not raise alarm, she said that Surendra and Rinku, who were following Pramod on a motorcycle were pointing out a rifle again and again towards her and they were threatening her. On the way, she tried to jump from the motorcycle, but the other motorcycle came beside her. She has stated that she did not raise alarm at the station also because the accused had threatened to kill her and her family members. When she was asked as to when she was threatened, how she raised alarm on the way, she could not give any reply to this question. She has tried to mislead the court while answering every question, inasmuch as she has stated that when she tried to raise alarm, the accused made her smell something. She knew the accused by name since the incident, but could not recognise them. It is not digestible that an unconscious girl would be made to sit on a motorcycle and she would travel for hours without following. She has dared to admit that "csgks'kh dh voLFkk es eSa eksVjlkbZfdy ij cSBh jgh jkLrs es dgha eSa fxjh ughaA" Again contradicting herself, she has stated that when she was being made seated on the motorcycle, she raised alarm, but nobody came to save her. While she was being taken on a motorcycle, she did not meet any known person. Although, her uncle Gulab Singh, PW-2 has stated that he saw the victim being taken away by the accused on a motorcycle. Again changing her statement, the victim has stated that she did not raise alarm on the way because she was unconscious. As far as the recovery is concerned, she has stated that the accused Surendra left her at Barhan railway station. When the statement of this witness recorded under section 164 Cr.P.C. was put to her, she admitted that she did not state all these facts before the Magistrate, but she could not give any plausible reason why she did not state all these relevant facts before the Magistrate. This witness has further stated that when she had returned back and she had a talk with her father. Only afterthought the FIR was lodged. She has also stated that she used to come from Barhan railway station to her house, she had no fear. When the accused had left at the railway station, she kept on sitting there for 10-15 minutes, nobody has seen her in platform at that time, but still she did not raise alarm.
31. Learned counsel for the appellants has placed reliance upon the decision in Musauddin Ahmad vs State of Assam, (2009) 12 Supreme Court Cases 541 the Hon'ble Apex Court has laid down that if there are serious contradictions in the deposition of the victim before the court and her statement recorded under section 164 Cr.P.C., then the whole prosecution story becomes doubtful.
31. In (2013)2 Supreme Court Case (Criminal) 279, Rajesh Patel vs State of Jharkhand, it has been laid down that if there are contradictions, inconsistencies, exaggerations or embellishments in the testimony of the prosecutrix, which is unnatural and improbable and the delay in filing the FIR is not properly explained, then the benefit should go to the accused.
32. Learned counsel for the appellants has submitted that since the statements of all the three witnesses, namely, PW-1, Ramesh Kumar, PW-2, Gulab Singh and PW-4, the victim are inconsistent to each other. The statements of the witnesses are also self-contradictory. Hence, the accused cannot be convicted on the basis of version of the prosecutrix as has been held in Lalliram and another vs State of Madhya Pradesh, (2008) 10 Supreme Court Cases 69.
33. Even the father of the victim PW-1, Ramesh Kumar and PW-2 Gulab Singh do not appear to be reliable witnesses, inasmuch as PW-1, Ramesh Kumar has stated that witness Gulab Singh is not related to him, but in the next breath, he had to admit that Gulab Singh was his real cousin. Confronted with this statement, Gulab Singh, PW-2 has stated that Ramesh Kumar was not his first cousin, but he was his cousin due to both belong to the same locality. To test the veracity of this witness, pedigree was put to this witness, in which he admitted that his grand-father was Bihari Lal, who had five other sons besides Pyarey Lal and Budh Singh. Pyarey Lal is the father of this witness Gulab Singh, whereas Budh Singh is the father of PW-1 Ramesh Kumar, meaning thereby that PW-1 Ramesh Kumar and PW-2 Gulab Singh was first cousin, but both PW-1 and PW-2 denied this relationship initially and at the time of trial, but ultimately had to admit the relationship.
34. Learned counsel for the appellants while placing reliance upon the provisions of section 53-A Cr.P.C. has submitted that as per the law laid down by the Hon'ble Apex Court in the case of Krishan Kumar Malik vs State of Haryana, (2011)3 Supreme Court Cases (Criminal) 61:
"Now, after the incorporation of Section 53 -A in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."
35. Why the DNA test was not conducted in this case was neither explained by the prosecution nor taken into account by the trial court while trying this case.
36. As per the medical report, no injury was found on the body of the victim.
37. In State of Maharashtra vs Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, the Hon'ble Apex Court has held as under:
"15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the court bases a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the prosecutrix ? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the court 'may' presume that an accomplice is [pic]unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).
38. Although, absence of injuries or absence of raising alarm or delay in lodging the FIR may not by itself be enough to disbelieve the version of the prosecutrix in view of the statutory presumption under section 114-A of the Indian Evidence Act, but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. I am conscious of the sensitivity with which heinous offence under section 376 IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version.
39. Although, the prosecution has produced PW-11, Santosh Kumar Sharma, the principal of Government Intermediate College, Barhan, Agra to prove her date of birth. Even the radiological report shows that the age of the victim was about 16 years, but calculation of the age of the victim will be of no significance because I have earlier found that her statement does not inspire confidence and she is a wholly unreliable witness, on whose testimony conviction cannot be based as has been laid down by the Hon'ble Apex Court in State of Rajasthan vs Babu Meena, (2013) 4 Supreme Court Cases 206.
40. The Investigating Officer, PW-7, S.O., Vijay Singh has admitted that in spite of the place of occurrence being identified, he did not inspect the place of occurrence. He has further stated that he did not take into the possession the clothes of the victim because there were no semen, whereas PW-4 has specifically stated that she was wearing her same school uniform throughout the time the accused detained her. When she was raped, there was bleeding from her vagina. Her clothes were also bloodstained. She also showed the doctor her bleeding vagina, but it appears all these averments were stated by the victim just to try to save her skin. The Investigating Officer has admitted that the involvement of some of the accused was found false.
41. Thus, what has been stated and discussed above, I conclude that the prosecution case is bundle of false allegations and improbable facts, due to which the learned trial court misled itself and has incorrectly convicted the accused, such 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.
42. Hence, the impugned judgement and order of conviction and sentence dated 05.08.2014 passed by the learned Additional Sessions Judge, Court No. 15, Agra in Sessions Trial No. 510 of 2010 (State vs Surendra Kushwaha) and Sessions Trial No. 885 of 2010 (State vs Rinku) arising out of Case Crime No. 387 of 2009, under Sections 363/34, 366/34, 376(2)(g) IPC, Police Station Barhan, District Agra as against the present appellants, is hereby set-aside.
43. Accordingly, the appeal is allowed.
44. The appellants-Rinku and Surendra Kushwaha are on bail. Their bail bonds are cancelled and the sureties are discharged. However, the appellants Rinku and Surendra Kushwaha are directed to comply with the provision of Section 437-A Cr.P.C.
45. Let a copy of this order be sent to the Trial court concerned.
Order Date :-10.05.2016 Sazia