Allahabad High Court
Vinod vs State Of U.P. on 20 May, 2016
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Case :- CRIMINAL APPEAL No. - 875 of 2014 Appellant :- Vinod Respondent :- State Of U.P. Counsel for Appellant :- Sushil Pandey Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Vijay Lakshmi,J.
Challenge in this appeal is to the judgment and order dated 17.7.2013 passed by Additional District and Sessions Judge, Court No. 4, Pilibhit in S.T. No. 323 of 2012 ( State of U.P. Versus Vinod) arising out of Case Crime No. 465 of 2012, under Sections 363, 366 and 376 I.P.C.,Police Station Puranpur, District Pilibhit whereby the accused was found guilty under Sections 363, 366 and 376 I.P.C. and was sentenced to 3 years R.I. and Rs. 500/- fine under Section 363 I.P.C., 4 years R.I. and fine of Rs. 500/- under Section 366 I.P.C. and 7 years R.I. And fine of Rs. 1000/- under Section 376 I.P.C. with default stipulation. All the sentences were directed to run concurrently.
Filtering out unnecessary details the prosecution story as per the prosecution version is that the complainant Basant Lal lodged an F.I.R. (Ext. Ka. 1) with the allegation that his 14 years old daughter Neelam, a student of class IX had gone to school alongwith her friends Pinki and Baby belonging to the same village on 21.4.2012 During interval Pinky and Baby took away his daughter outside the school to Dugdhdhari temple near Gunghchihai on the pretext of offering 'Prasad" but they handed over his daughter to Vinod Singh (appellant) who took her away forcibly in a magic car leaving Baby and Pinki at the temple.
On the basis of F.I.R., chick report ( Ex. Ka. 9) was scribed by P.W. 7 Con. Sudhindra Kumar Singh. Investigation was entrusted to S.I. Rakesh Singh (P.W. 5). He copied the F.I.R. in the C.D., recorded the statement of the victim and other witnesses, prepared the site plan (Ext. Ka. 4). The investigation ended into a charge-sheet (Ext. Ka. 5) against the appellant.
The victim was medically examined by Dr. Anjali Singh (P.W. 6). As per the internal examination the hymen was found old torned and healed. No external or internal injury was found on her private parts. Slides were prepared from the smear of the vagina and sent for pathological examination. No dead or alive spearmotozua was found in vaginal report. X-pray was advise for determination of her age.
Dr. Udaiveer Singh, P.W. 4 conducted the x-ray examination on 10.5.2012. The radiological age of the girl was found between 17 years and 18 years.
The prosecution in order to prove its case, examined as many as eight witnesses in all. P.W. 1 Basant Lal is the father of the prosecutrix and first informant. P.W. 2 Neelam is the prosecutrix. P.W. 3 Smt. Mayadevi is mother of the victim. P.W. 4, Dr. Udaiveer Singh, Senior Consultant, District Hospital, Pilibhit is the radiologist. P.W. 5 S.I. Rakesh Singh is the Investigating Officer. P.W. 6 Dr. Anjali Singh is the lady doctor who has medically examined the prosecutrix and P.W. 7 is Con. Sudhindra Kumar Singh who has prepared the check F.I.R. P.W. 8 Ravi Kant Shukla is the Incharge Principal, Higher Primary Girls School, Ghunghchihai, P.W. Pooranpur, who has proved the school leaving certificate mentioning the date of birth of the prosecutrix as 15.8.1998.
After conclusion of prosecution evidence the statement of accused was recorded under Section 313 Cr.P.C. in which he claimed his false implication due to the reason that the prosecutrix and her parents wanted to perform marriage of prosecutrix with him but as he was not ready he was falsely implicated in this case by them.
Heard learned counsel for the appellant, learned A.G.A. and carefully gone through the entire evidence available on the lower court's record.
Learned counsel for the appellant has contended that the court below without considering the material contradictions occurring in the statements of the prosecution witnesses has blindly relied on them. It is next contended that no sign of rape or injury has been found on the body of the prosecutrix and she has not tried to call any person for her help or to raise any alarm despite the fact that while going from one place to another and traveling by the public transport (bus), she had sufficient opportunity to do so, but the learned trial court, without taking into consideration all these facts has held the appellant guilty and has convicted and sentenced him. It has lastly been submitted that the appellant has already spent more than four years in jail without any fault on his part and thus the impugned judgment and order of conviction and sentence of the appellant is liable to be set aside by this court.
Per contra learned AGA has opposed the appeal by contending that the victim as per her school leaving certificate is a minor girl, hence even assuming that she was a consenting party, it will not make any difference. Therefore, the accused-appellant has rightly been convicted and sentenced by the learned lower court.
Considered the submissions.
A careful scrutiny of the evidence available on record shows that the FIR, which is the foundation stone of every criminal case, is wholly doubtful in this case. The author of the FIR (Exhibit Ka-1) Basant Lal is the father of prosecutrix, who has proved the FIR (Ext. Ka-1) to be written in his own handwriting. In the FIR it has been clearly mentioned by him that his daughter Neelam was taken away by Pinki daughter of Sri Shri Niwas and Baby daughter of Sumer. Both of them took her to the school. During interval they took her to Dugdhadhari temple and handed her over to the appellant Vinod Singh, who enticed her away. But the first informant, when examined as PW1, has stated that in the FIR he had never mentioned any such fact that his daughter had gone to the temple with Pinki and Baby. He has further stated that he had even never informed this fact to the I.O.
In this regard the following extracts from the statement of PW1/ first informant/father of the victim are relevant:
mlds ckn ryk'krs jgs yM+dh ugha feyh rc iqfyl pkSdh ?kq?kpkbZ esa rgjhj vius gkFk ls mlh fnu fy[kdj nh FkhA lk{kh rgjhj ns[kdj dgk fd ;g ogh rgjhj gS tks eSaus pkSdh dh bl ij esjs gLrk{kj gSa blij izn'kZ d&1 Mkyk x;kA esjh fjiksVZ esa ;g xyr fy[kk gS fd fiadh iq=h Jh fuokl rFkk csch iq=h lqesj ?kj ls cqykdj Ldwy i<+us ds fy, ys x;h FkhA rFkk Ldwy esa bUVjosy ds le; fiadh iq=h Jhfuokl o csch iq=h lqesj Ldwy ls ckgj ys x;h vkSj Nk=kvksa us Ldwy ds ckgj ys tkdj nqX/k/kkjh nsoh LFky tks xkWo ds ckgj mRrj fn'kk esa gSA ogkW ij ys tkdj xkWo ds fouksn flag ,l0@vks0 lUMw flag ds gkFk esa uhye dks idMk fn;k vkSj ;g mijksDr dFku eSus njksxk th dks vius C;kuksa esa ugh fn;kA ;g ckrsa fjiksVZ esa blfy, fy[k xbZ fd esjk fnekx dke ugha dj jgk FkkA Relevant portion of the FIR, which is in total contradiction of the above statement of the PW1, is as under:-
^^izkFkhZ dh iq=h dh uhye mez 14 o"kZ tks fd xkWo ds ,d izkbZosV xq:ukud m0ek0 esa d{kk 9 dh Nk=k gSA mls xkWo fiadh iq=h Jh fuokl rFkk csch iq=h lqesj ?kj ls cqykdj Ldwy i<+us ds fy, ys x;h Fkh rFkk Ldwy esa b.Vjoy ds le; fiadh iq=h Jh fuokl rFkk csch iq=h lqesj dks Ldwy ls ckgj ys x;h vkSj Nk=kvksa us Ldwy ds ckgj ys tkdj nqX/kk /kkjh uked nsoh LFky tks fd xkWo ds ckgj mRrj fn'kk esa fLFkfr esa gSA ogkW ij ys tkdj xkWo ds fouksn flag iq= >aMw flag gkFk esa uhye dks idM+k fn;kA^^ In the FIR it has not been mentioned that on whose information the informant got the knowledge that his daughter left the school in the interval and went outside to offer Prasad in the temple. The date and the time when the occurrence had taken place is also not mentioned in the FIR. In the column of date and time of occurrence in the check FIR the words "vne rgjhj" have been written.
It is true that the FIR is not an encyclopedia and minute details are not required to be mentioned in the FIR but at least the relevant facts such as date and time of the occurrence must find place in it.
The statement of PW1/first informant shows that he does not even know the age of his daughter. Though he has mentioned her age as 14 years in the FIR but his statement regarding age of his daughter clearly shows that he has no idea about the age of his daughter.
esjh csVh d{kk ukS rd i s vius csVh dh ugha ekywe ekdZ'khV ns[kus irk yxk fd esjh yM+dh dh mez 14 o"kZ FkhA PW1 has stated that he was informed about the abduction of his daughter by some labourers working in the fields but when cross-examined, he could not tell whether those labourers were the residents of his village or were outsiders. He does not know the name of any of the labourer. He has admitted that he had no prior acquaintance with any of them. If that was the situation then how could those alleged eyewitnesses/ labourers had identified the informant's daughter and also the appellant when he was allegedly taking her away with him. In this respect the following extracts from the statement of PW1 are worth mentioning:
tc NqV~Vh gks xbZ yM+dh ?kj okil ugh igqWph rks eSus mls ryk'kk rks xkWo ds lehi nqX/kk /kkjh efUnj ds ikl vU; O;fDr [ksr esa etnwjh dk dk;Z dj jgs Fks rks mUgksaus crk;k fd rqEgkjh yM+dh dks fouksn flag eSftd esa cSBkdj ys x;sA fn0 21&4&12 dks fnu ds rhu cts eq>s yksxksa us ;g ckr crkbZ Fkh eq>s mu yksxksa dk uke ugh ekyweA ftUgksaus uke crk;k Fkk eq>s ;g Hkh ugha ekywe fd os yksx dgkW ds FksA os lc pkj yksx FksA geus mu crkus okyksa ds ckjs esa muds uke irs fuokl eSaus ugha iwNk D;ksafd eSa gM+cM+kgV esa FkkA Moreover, there appear material contradictions in the statement of the prosecution witnesses making the entire prosecution story doubtful and unworthy of credence. For example PW1 has stated that when his daughter had left for school on the day of occurrence she was wearing a Salwar Suit and when she was recovered she was wearing the same Salwar suit, which had become very dirty and spoiled due to the continuous wearing for about one month. But on the contrary PW3, who is mother of the victim, has stated that when her daughter had returned she was wearing a Sari and she had informed that the Sari was given to her by Vinod. The relevant portion of the statement of PW3 is quoted as under:
?kj ls esjh yM+dh ihyk lwV igu dj x;h FkhA tc ?kj okil vk;h Fkh rc lkM+h igu dj vk;h FkhA lkM+h NhaVnkj FkhA The prosecutrix PW2 has also stated a thoroughly unbelievable story about her clothes by stating that she was wearing the same dress for 3-4 days. The statement of the prosecutrix is self contradictory too. In her examination in chief she has stated that the appellant met her near Dugdhdhari temple and enticed her away to some unknown place but during her cross examination she has given a total contradictory statement and has stated that Vinod met her when she was returning from the temple. 3-4 persons were with him. All of them caught hold her from behind and put a scarf (vaxksNk) on her face. They blind folded her eyes and took her to an unknown room.
Thus the prosecutrix has made substantial improvements not only with regard to the manner of occurrence but also with regard to the involvement of 4-5 more persons in the occurrence.
The statement of the prosecutrix, who is the most important witness in this case does not inspire confidence also due to the following reasons:
She has stated that a man and a woman were also residing in the house where the appellant had kept her but she did not make any complaint to them. She has admitted that the accused used to go outside the house for taking food etc but during that period also, she never tried to make any complaint to anybody. She has admitted that she never raised any alarm. She has stated that 4-5 accused took her to some other city by some other car and kept her in a house in that city where some relatives of the accused-appellant were also residing and she stayed there for eight days. But her statement appears to be unnatural that during those eight days she never tried to converse with any of the inmates of that house. She has stated that she was questioned by the inmates of the house about the place from where she had come but she did not inform anything to them. The prosecutrix has stated that the accused used to call "Didi" to one lady, who was residing in that house and the inmates used to cook food themselves. Hence her statement that during her stay for eight days in that house, she never changed her clothes does not inspire confidence. The occurrence is of summer season and it is unbelievable that a person would live without bathing and without even changing clothes for continuous eight days in summer more so when there was no such restriction on her.
The following statement deposed by her during examination-in-chief is also worthy to be seen, which is in total contradiction with what she has deposed during her cross-examination.
?kVuk ls 18 osa fnu fouksn eq>s vklke pkSjkgk ihyhHkhr ij yk;k FkkA ogkW ls eSa cp djds pkSjkgs ij vk;h FkhA pkSjkgs ij eq>s iqfyl ds ikl esjs firk th feys FksA eSa iqfyl o firk th ds lkFk Fkkuk iwjuiqj x;h FkhA Whereas during her cross examination she has stated as follows:
fnu fudys ge yksx cl ij cSB x;s FksA cl esa Hkh eSaus fdlh ls ftdz ugha fd;k FkkA eSa ihyhHkhr x;kjg cts vk x;h Fkh cl tgkW :dh Fkh ogh ls iqfyl okyksa us ge nksuksa dks idM+ fy;k FkkA vkl ikl pkSjkgs ij iqfyl us gesa idM+k FkkA ;g lgh gS fd eq>s o fouksn dks fnu ds X;kjg cts vklke pkSjkgs ij idM+ fy;k FkkA vkSj idM+dj lh/ks ge nksuksa dks Fkkus ys vk;s FksA Fkkus esa esjs firk th o ekrk th dks cqyk;k FkkA The statement of the prosecutrix also shows that she has travelled by public transport (bus) but admittedly she has not raised any alarm. Her statement in this regard is as follows:
nwljs edku esa ls ihyhHkhr cl ls vk;h FkhA tgkW cgqr lh clas [kM+h Fkh ogkW ls eqfYTke eq>s cSBkdj lkFk yk;k FkkA cl LVS.M ij eSus fdlh Hkh O;fDRk ls ;g ugha crk;k fd eqfYte fouksn eq>s Hkxkdj yk;k gSA It is worthy to be mentioned that the statement of PW3, mother of the prosecutrix, is entirely different. She has stated as follows:-
tc esjh yM+dh uhye 12 fnu ds ckn ?kj ij vdsyh vk;h Fkh rks eSa o esjs ifr yM+dh dks ysdj Fkkuk iwjuiqj x;s FksA The I.O., who has recovered the prosecutrix, has stated that she was waiting for some conveyance at Bus station on 9.5.2012 at about 6.00 P.M. when he took her in custody.
The statement of PW3 (mother of the prosecutrix) clearly shows that the prosecutrix had love affair with the appellant. She has stated that after sometime she got the knowledge about their sweet relations. She has also stated that she and her husband both had beaten their daughter after she returned. Thus the statement of the mother of the prosecutrix clearly suggests that the prosecutrix had willingly eloped with the accused. She traveled with him from one place to other by public transport (bus) and when they were waiting for some bus at the bus stop, both of them were arrested by the police. The girl was handed over to her parents, who naturally were annoyed by her conduct and therefor, she was beaten by her parents.
The statement of the doctor, who had examined her is also relevant. The doctor, PW6, has stated that no injury was seen either on her body or private part. Her hymen was found old torn and healed and she was found to be used to sexual intercourse. The doctor has also stated that her physical traits were found well developed and her radio logical age was found to be between 17-18 years with a variation of six months on either side.
The trial court has held the appellant guilty mainly on the ground that the girl according to her transfer certificate was a minor at the time of the occurrence. Therefore, her consent had no relevance. The evidence available on record shows that the prosecutrix was a student of Class IX. Thus, there is no certificate equivalent to matriculation as is required by Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 for ascertaining her age. The trial court ascertained her age on the basis of a transfer certificate and marks sheet of Junior High School of the victim in which her date of birth is mentioned as 15.8.1998. It is also to be noted that the occurrence is of April 2012 i.e. before amendment of Section 376 Cr.P.C. when the age of consent for the purpose of this section was 16 years. The amendment in section 375 I.P.C. by which the age of consent has been increased from 16 to 18 years has come into effect from 3.2.2013. The radio logical age of the prosecutrix was found to be between 17-18 years. It is well settled that there may be a variation of six months to one year on either side. It is also well settled law that the benefit of this variation would go to the accused. Thus, clearly the prosecutrix must have been more than sixteen years of age at the time of occurrence, which was the age of consent at the time when the occurrence had taken place.
The evidence as discussed in detail earlier clearly indicates that the prosecutrix was a consenting party. The case diary shows that even her brother Jitendra Kumar, who has not been examined by the prosecution, has admitted that she had love affair with accused Vinod. Had it not been so then there was no reason for the parents to beat their daughter when she returned to them after so many days.
One more fact, which makes the prosecution story unworthy of credence is that two girls i.e. Pinki and Baby whose names have been mentioned in the FIR and against whom there is a clear allegation in the FIR that they took the prosecutrix from school and handed her over to the accused, were neither charge-sheeted nor were summoned as an accused with the aid of section 319 Cr.P.C. If the two girls were innocent and for that reason they were exonerated by the police and even by the informant, then both girls, who were the best witness in this case being the eyewitnesses, should have been examined as prosecution witnesses but the prosecution for the reasons best known to it, has withheld them, which fact also makes the prosecution case suspicious.
There is no doubt that the cases of rape should be dealt by the courts with an iron hand and the conviction can be based even on the sole testimony of the prosecutrix but the condition is that the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. So far as the present case is concerned, in this case the evidence of prosecutrix shows several lacunae and does not fall in that category and cannot be relied upon to hold the appellant-accused guilty of rape. In the case of Krishan Kumar Malik Vs. State Haryana, (2011)7 SCC 130 the Apex court under almost same facts has set aside the conviction and has acquitted the accused. Explaining/ elaborating the meaning of 'sterling witness', Hon'ble Supreme Court in the case of Rai Sandeep Vs. State (NCT of Delhi) (2012) 8 SCC 21 has observed as under:-
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of prosecution qua the accused. There should be not be any prevarication in the version of such a witness."
In view of the above facts and circumstances of the case, this court is of the considered view that it was not proper for the learned trial court to convict the appellant on the basis of such statements of the prosecution witnesses, which are full of contradictions, omissions, embellishments and improvements. However, the trial court convicted the appellant, therefore, the judgment of the trial court being perverse and against the evidence on record is liable to be set aside and the appellant deserves to be acquitted from the charges leveled against him.
Accordingly, this appeal is allowed and the impugned judgment and order of conviction dated 13.2.2014 passed by the trial court is hereby set aside.
It is unfortunate that the appellant from the first date of his arrest is languishing in jail because his bail application was rejected by the trial court and this court also after taking into account that the appeal is ripe for final hearing, did not consider his bail. The appellant, who has already spent more than four years in jail shall be released forthwith.
Let a copy of this judgment be sent to the Chief Judicial Magistrate, Pilibhit, for immediate compliance.
Order Date :- 20.5.2016 SB/Pcl