Allahabad High Court
Rajesh Kumar Dubey vs State Of U.P. on 16 November, 2022
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH REPORTABLE Court No. 24 HIGH COURT OF JUDICATURE OF ALLAHABAD (LUCKNOW) JAIL APPEAL No.- 2176 of 2010 Rajesh Kumar Dubey ........Appellant Versus State of U.P. ........Respondent Counsel for Appellant: Sri Rajesh Kumar Dwivedi, Amicus Curiae Counsel for Respondent: Sri Manoj Kumar Sahu, Additional Government Advocate Reserved on: August 2, 2022 Delivered on: November 16, 2022 JUDGMENT Hon'ble Sanjay Kumar Pachori, J.
1. This jail appeal has been preferred by the appellant, Rajesh Kumar Dubey against the judgment and order passed by Additional Sessions Judge/FTC-3 Lucknow, on 13.8.2009 in Session Trial No. 128 of 2009, arising out of Case Crime No. 645 of 2008, Police Station Hasanganj, District Lucknow, whereby the appellant has been convicted under Sections 354, 376 read with section 511 of The Indian Penal Code (in short "I.P.C.") and sentenced to undergo one-year imprisonment under section 354 of IPC and to undergo five years imprisonment and a fine of Rs. 1,000/- each with a default sentence of one month under section 376 read with section 511 of IPC.
PROSECUTION CASE
2. The prosecution case in brief as per the first information report1 (Ex.Ka.-4), which was lodged on 12.11.2008 at 6:10 (hours, a.m. or p.m. has not been written) on the basis of written complaint (Ex.Ka.-1) of the victim 'X' (PW-1) at PS Hasanganj, District Lucknow by the victim is that she cooks food at the house of colonel S. K. Sharma in his presence. On 10.11.2008, at 9:00 p.m., the appellant reached the house of the victim and told the victim that colonel sahab had come and was calling her for cooking food, she reached the house believing his information and went inside the house by opening the gate. The appellant caught her arm and started molesting her. Hearing her cries, elder brother of colonel sahab Dr. Uma Kant Sharma and one other person, who had come to the house of Ratan Kant Sharma reached there, and saved the victim from the appellant by reprimanding him.
3. The FIR dated 12.11.2008 (Ex.Ka-4) was registered as case Crime no. 645 of 2008 under section 354 of I.P.C. against the appellant at PS Hasanganj, District Lucknow at 6:10 (hours, a.m. or p.m. has not been written) by Head Constable Asharaf Ali (PW-4) on the basis of the written complaint (Ex.Ka.-1). The distance between the place of occurrence and the Police Station is about 1 Km.
4. The investigation was started by Sub-Inspector2 Ranjit Dubey (PW-3). He inspected the place of incident, as pointed out by the informant/victim (PW-1) and prepared a site map (Ex.Ka.-2) of the place of occurrence. The investigating officer3 recorded the statement of the victim, Uma Kant Sharma under section 161 of the Code of Criminal Procedure 1973 (in short 'Cr. PC.') on 27.11.2008 and other prosecution witnesses under Section 161 of Cr. PC. The statement of the victim under Section 164 of Cr. PC. (Paper No. A-6/23) which had been seen by the I.O. and endorsed in the case diary on 28.11.2008. After completing the investigation, a charge sheet (Ex.Ka.-3) was submitted against the appellant under Sections 354, 376 read with Section 511 of IPC before the court concerned on 11.12.2008.
5. The concerned Magistrate took cognizance in the matter and committed the case to Sessions Court on 12.2.2009 for trial. On committal, the trial court framed charges against the appellant under Sections 354, 376 read with Section 511 of IPC on 28.3.2009. The appellant denied the charges and claimed trial. The appellant was so poor that he could not afford to engage a lawyer and the case before the court was conducted by amicus curiae Sri Pradeep Chand Sharma on the basis of the appellant's application dated 28.3.2009.
6. To prove the charges against the appellant, the prosecution examined as many as 4 witnesses. PW-1 victim/first informant; PW-2 Dr. Uma Kant Sharma, brother of colonel S.K. Sharma, who had reached the place of the incident immediately after hearing the screaming of the victim; PW-3 S.I. Ranjit Dubey (I.O.) and PW-4 HCP Asharaf Ali (scribe of chik of FIR).
7. After taking the evidence of the prosecution witnesses, as per Section 313 of Cr. PC., the appellant was questioned about the evidence led against him by the prosecution, wherein he denied the incriminating evidence put to him and stated that he has been implicated due to enmity (MUJHE JABRAN RANJISHAN (VICTIM'S NAME) NE FASAYA HAI, MAIN NIRDOSH HUN) and the witnesses have given evidence due to enmity. The appellant did not produce any evidence before the trial court.
8. Before the trial court, the appellant argued that the FIR has been lodged after due deliberation and consultation. There is a contradiction between the statements of PW-1 victim and PW-3 S.I. Ranjit Dubey with regard to the injury of the victim. The victim stated that during the incident she received injuries, but the Investigating Officer stated that he did not get medical examination of the victim because the victim had not received any injury. It is further contended that there are material contradictions between the statement of PW-1 victim and PW-2 Dr. Uma Kant Sharma with regard to the presence of PW-2 after the incident. It is further argued that when colonel saheb was not present in his house, the victim reached there to meet the appellant and he falsely implicated after someone saw the incident.
FINDINGS OF THE TRIAL COURT
9. The trial court found that the victim has explained the delay in lodging the FIR on 12.11.2008, wherein she explained that the FIR was lodged after colonel sahab reached in his house, after relying upon the judgment of the Supreme Court in case of Narain Saha & Anr. v. State of Tripura, AIR 2005 SC 1452, wherein it was held that merely because the complaint was lodged less than promptly, does not raise the question that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women. It casts doubt and shame upon her rather than comfort and sympathy towards her. Therefore, the delay in lodging the FIR in such cases does not necessarily indicate that her version is false.
10. The trial court further observed that the victim was a maid in the house of colonel S. K. Sharma for 10 years and she cooked food in his house in his presence both in the morning and evening, and the appellant is a security guard in the said house for 6 to 7 months prior to the incident. The incident took place after she opened the main gate of the house, which has a high boundary wall.
11. The trial court further observed that there is a discrepancy between the statements of PW-1 victim and PW-3 Ranjit Singh with regard to the injuries of the victim. As per the prosecution case, when the victim entered the house after opening the main gate, the appellant caught hold of the arm of the victim from behind and pressed her chest, and attempted to rape her. As per the site map (Ex.Ka.-2) the incident took place on the lawn situated nearby the main gate connecting the boundary wall. The victim stated that the appellant came from behind and was forcing her and she received injuries in her leg and knee, but there was no bleeding. The evidence of the victim is corroborated by the statement of the victim recorded under Section 164 of Cr. PC. The trial court discarded the argument of the appellant and found that there is no material discrepancy that affects the case of the prosecution.
12. The trial court discarded the argument of the appellant that the evidence of PW-2 Dr. Uma Kant Sharma is not trustworthy because there are material contradictions between the evidence of PW-1 victim and PW-2. The trial court found that the incident took place on 10.11.2008 from 8:30 P.M. to 9:00 P.M. The witness is the real brother of colonel S.K. Sharma and he was residing in the back portion of the house. PW-2 reached immediately after hearing the cry of the victim at the place of the incident and saw that the appellant was lying over the victim, at that time the appellant was found nude. PW-2 called the police on No. 100, in the meantime, the appellant fled away from the spot. The trial court observed that the evidence of PW-1 is satisfactorily corroborated by PW-2.
13. The trial court further found that if the presence of another person Ratan Kant Sharma is found doubtful, it will not affect the trustworthiness of the evidence of the victim. The appellant has not put any question with regard to his false implication due to enmity to the PW-1 and PW-2 and he has not produced any evidence in this regard. The trial court concluded that the prosecution has successfully proved the charges against the appellant under Sections 354, 376 read with Section 511, I.P.C. beyond reasonable doubt and thereby convicted and sentenced the appellant as above.
14. Being aggrieved by the trial court's judgment and order, the appellant has preferred this appeal.
SUBMISSIONS BEFORE THIS COURT
15. Heard Sri Rajesh Kumar Dwivedi, learned counsel amicus curiae for the appellant; Sri Manoj Kumar Sahu, learned A.G.A., for the State and perused the material available on record.
16. Learned amicus curiae for the appellant vehemently urged that;
(a) PW-1 victim lodged the FIR of the present case after about 30 hours of unexplained delay, if the FIR was lodged on 12.11.2008 at 6:10 a.m. (hours, a.m. and p.m. has not been mentioned). Though, PW-3 S.I. Ranjit Dubey had reached the place of the incident immediately after the incident and he called the victim;
(b) There is an overwriting over the date as shown as '12.11.2008' in the complaint (Ex.Ka.-1) and the word "Aaj", has been deleted and name of the scribe of the complaint has not been mentioned. Therefore, scribe of the complaint was not examined by the prosecution;
(c) There is an overwriting in case crime no. of chik FIR (Ex.Ka.-4) as well as its G.D. Rapat no. (Ex.Ka.-5), it seems that initially case crime no. '646' was written but later crime no. '645' had been written.
(d) G.D. Rapat No. (Ex.Ka.-5), which had been prepared after registering the FIR, has no number, date, and time;
(e) The date on which the copy of the FIR had been sent to the Jurisdictional Magistrate is not mentioned.
(f) PW-2 Dr. Uma Kant Sharma gave telephonic information about the incident on number 100 to the police which was not reduced into writing. As per the statement of PW-2, he lodged the FIR at the police station on the date of the incident, which was not made part of the investigation;
(g) The torn clothes of the victim were neither recovered nor it was seized;
(h) The victim was not produced before any doctor for her medical examination; statement of the victim was recorded under Section 161 Cr. PC. on 27.11.2008, after 16 days of the incident. On the basis of statement of the victim Section 376/511, IPC had been added on 27.11.2008.
(i) There is a material contradiction between her statement under Section 161, Cr. PC., chief examination, and cross-examination with regard to attempting to commit rape.
(j) The statement of the victim under Section 164 of Cr. PC. has no date of its recording, which had been endorsed by the I.O. on 28.11.2008 in the case diary, which was not proved by the prosecution;
(k) There are material contradictions in the testimony of PW-1 victim and PW-2 Dr. Uma Kant Sharma, with regard to the presence of PW-2 who claimed to be an eye witness of the incident;
(l) As per the statement of PW-2 Uma Kant Sharma, he was told about the incident by a girl residing in his neighbourhood. But the independent witness was not examined by the prosecution;
(m) No broken pieces of bangles or any other incriminating article was recovered and proved by the prosecution; and
(n) The place of occurrence was not established and proved by the prosecution.
In the aforesaid background, it is submitted that the prosecution has failed to prove the case against the appellant beyond all reasonable doubt and the conviction, as recorded, is against the weight of evidence. Hence, the impugned judgment and order dated 13.8.2009 is liable to be set aside.
17. Learned amicus curiae relied upon the judgments of the Supreme Court in case of Marudanal Augusti v. State of Kerala, AIR 1980 SC 638, Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., 2013 AIR SC 3794 and Hemraj & Ors. v. State of Haryana 2005 (52) ACC 258 (SC).
18. Per Contra; learned A.G.A. submitted that the reason for the delayed reporting of the FIR has also been explained by the prosecution. There was no reason as to why a married woman, would falsely implicate the appellant. PW-2 was the most natural and independent witness of the incident and there was nothing on record to show that he had any animus, grudge, or vendetta against the appellant to depose falsely against the appellant. There is nothing brought out in cross-examination to render her evidence fragile. Learned trial court has rightly held the appellant guilty; the findings recorded by the trial court are on appreciation of the evidence, which is neither perverse nor contrary to the evidence on record; the charges levelled against the appellant had been proved beyond a reasonable doubt. Thus, his conviction and sentence do not warrant any interference. The judgment and order of the trial court are liable to be affirmed. A prayer was, therefore, made to dismiss the appeal.
ANALYSIS OF THE PROSECUTION EVIDENCE:
19. Before considering the respective submissions, it would be appropriate to notice the arguments on behalf of the appellant in detail. The appellant's arguments are:
Firstly; the FIR of the present case was lodged with consultation and deliberation on 12.11.2008 after 30 hours of the incident, if the FIR was registered as alleged in the morning of 12.11.2008 at 6:10 a.m., even though the distance between the place of occurrence and the police chowky is just 1 Km. and the police arrived at the place of the incident immediately after the occurrence. The delay in lodging the FIR assumes significance and casts a complete shadow of doubt on the prosecution case and such delay seriously doubts the truth and veracity of allegations levelled by the victim. The delay in lodging the FIR corrodes the credibility of the prosecution story for the reasons below:
(a) As per the statement of PW-2 Uma Kant Sharma, police came immediately after the incident on 10.11.2008 at the place of the incident but the FIR was lodged after 30 hours (if the FIR was lodged on 12.11.2008 at 6:10 a.m.) of the incident.
(b) As per the statement of PW-2, the appellant was arrested from the room of colonel sahab i.e. place of incident at 2.30 hours on the night of 10/11, but the FIR was lodged on 12.11.2008. However, the arrest of the appellant had been shown on 12.11.2008 at 8:00 hours from B-180 Nirala Nagar, (from the place of the incident) as per arrest memo.
(c) There is an overwriting over the date as shown '12.11.2008' in the complaint (Ex.Ka.-1) and deleting of the word "Aaj" of the complaint and the name of the scribe of the complaint had not been mentioned, therefore, scribe of the complaint was not examined by the prosecution;
(d) G.D. Rapat No. (Ex.Ka.-5), which was prepared after lodging the FIR, has no number, date, or time.
(e) There is no date on which the FIR was sent to the jurisdictional Magistrate.
(f) PW-1 victim stated that she lodged the FIR on 12.11.2008 after waiting for her nephew, but on the other hand, PW-2 Uma Kant Sharma stated that he dialed number 100 and went to the police station; SI Ranjit Dubey came at the place of incident and he lodged the report, the fact regarding the theft had been told.
Secondly; the entire genesis of the case is in serious doubt in view of the contradictions and material inconsistencies between the statement of PW-1 victim and PW-2 Dr. Uma Kant Sharma, with regard to the presence of eye-witness PW-2 Uma Kant Sharma, lodging of the FIR, and time of arrest of the appellant, which emerges from the following circumstances:
(a) PW-1 victim firstly; stated in her examination-in-chief that on her screaming, Uma Kant Sharma and one person, who came to the house of Ratan Kant Sharma, reached the spot; secondly; the victim stated in her cross-examination that PW-2 Uma Kant Sharma and Ratan Kant Sharma reached on her screaming after 15 minutes and no other person except them reached on her screaming. thirdly; she stated in her statement recorded under Section 164 Cr. PC. (Paper No. A-6/23, which has no date of its recording), which has been endorsed by the I.O. after 17 days of the incident on 28.11.2008, that hearing her voice an advocate, whose name she does not know, reached there and scolded Rajesh.
On the other hand, PW-2 Uma Kant Sharma stated that he awoke to the noise of the daughter of Judge Chandra, who lived behind, she saw the incident from her rooftop and said a man is harassing a woman who is screaming. When he came out, and saw the appellant was laying down over the victim in a bush at that time the appellant was naked, after that client of vakeel sahab reached there.
(b) PW-1 victim stated in her cross-examination that PW-2 Uma Kant Sharma resided 2-3 houses away from the place of the incident (i.e. house of the colonel S.K. Sharma); on the other hand, PW-2 Uma Kant Sharma stated that he resided in the back portion of the house of colonel S.K.Sharma.
(c) PW-2 Uma Kant Sharma in his statement-in-chief stated firstly; the appellant broke the door of the colonel with a trowel (Khurpi), and he interrupted on which the appellant told that he was repairing the stool. He dialed number 100 and went to the police station, met inspector Ranjit Dubey and Ranjit Dubey came to the place of occurrence.
secondly; PW-2 stated in his cross-examination that he and Dr. M. Tripathi informed the police. The police came to the spot and inquired about the incident. The victim called. Meanwhile, the appellant fled away. He informed the police about the fact regarding theft and lodged the report (but there is no report on record). The appellant was arrested from the room of colonel sahab (place of the incident) at 2.30 hours on the night of 10/11, but the arrest of the appellant had been shown on 12.11.2008 from the same room.
But on the other hand, PW-1 victim lodged the FIR on the basis of written complaint, wherein she put her thumb impression, after waiting for her nephew on 12.11.2008. She further stated in her cross-examination that she did not remember the name of scribe of the complaint. Furthermore, the name of scribe of the complaint is not mentioned in the complaint.
Thirdly; the prosecution case wholly depends on the testimony of a solitary witness, PW-1 victim 'X'. The incident occurred in the night at 9:00 a.m. and nobody witnessed the incident, which is borne out from the contradictions/omissions present in the testimony of PW-1, PW-2, and PW-3. The ocular version of PW-1 does not appear reliable and does not inspire confidence in the prosecution case. In support thereof, it has been pointed out that;
(a) there is a material inconsistency between her chief-examination and cross-examination of the victim PW-1. She stated in her cross-examination that she had told the police about the facts of holding her chest and attempt of penetration, but it is not written in her statement recorded under Section 161, Cr.PC., as also stated by PW-3 S.I. Ranjit Dubey (I.O.) who stated in his cross-examination that it is correct to say that in her statement under Section 161 Cr. PC., tearing of the blouse, pressing chest, and attempting to do intercourse is not mentioned because the victim did not tell so.
However, the FIR was lodged under Section 354, IPC, and offence punishable under Section 376 read with Section 511, IPC had been added after 16 days of the incident.
Fourthly; there are material inconsistencies beween the statement of PW-2 Uma Kant Sharma and PW-3 S.I. Ranjit Dubey with regard to the place of the incident because:
(a) PW-2 Uma Kant Sharma stated in his examination-in-chief that he saw the applicant lying down over the victim in a bush and at that time the appellant was naked, but on the other hand, PW-3 S.I. Ranjit Dubey stated in his cross-examination that he prepared the site map of the place of incident on the instance of the victim, which was situated in the mid of lawn and there was no tree or bush nearby.
Fifthly; there are material contradictions with regard to the injury sustained by the victim PW-1 between the statement of PW-1 victim and PW-3 S.I. Ranjit Dubey (I.O.) because:
(a) the victim stated in her statement recorded under Section 164 Cr. PC. that as soon as she went inside the house, the appellant after grabbing her tightly, pulled her hair and torn all her clothes, after dragging her from the gate the appellant went towards the bush and took off all his clothes, and tried to rape her. In this attempt, he pulled her hair, hit her and twisted her neck but she did not medically examine.
(b) The victim PW-1 stated in her chief-examination that she sustained abrasions on both her knees and hand and in her cross-examination she stated that she kept fighting for 10-15 minutes till PW-2 Uma Kant Sharma came, but on the other hand, PW-3 S.I. Ranjit Dubey (I.O.) stated that he did not get her medical examination conducted because there was no injury and abrasion on the body of the victim.
Sixthly; As per the statement of PW-2 Uma Kant Sharma, who claimed to be an eye witness of the incident, reached the place of occurrence after the daughter of Judge Chandra called him, who witnessed the incident from the rooftop of her house. She had not been examined by the prosecution.
20. It is appropriate to mention the statement of the victim recorded under Section 164, Cr.P.C. (Paper No. A-6/23, which has no date of its recording) before appreciating the evidence of the prosecution witnesses, which is as follows:-
"She cooks food at the house of colonel sahab. On 10.11.2008 at 9.00 p.m. Rajesh Dubey, the guard of the colonel sahab came to her house and told that colonel sahab has came and is calling her. Sahab and Mem sahab had gone out somewhere. As soon as she went inside the house, Rajesh Dubey after grabbing her tightly pulled her hair and torn all her clothes. After dragging her from the gate he went towards the bush and took off all his clothes. He tried to rape her. In this attempt, he pulled her hair, hit her, and twisted her neck, due to which her neck is still in pain. She was crying out loudly. Hearing her voice an advocate, whose name she does not know, reached there and scolded Rajesh. She somehow wrapped her clothes and ran away to her house. She went home and told her husband about the incident."
21. Before I proceed to dwell upon the merit of the contentions raised before me, it will be apposite to have close scrutiny of the entire ocular evidence, which is as follows:-
22. PW-1 victim 'X' (aged about 39 years) stated in her examination-in-chief that she is illiterate and is a maid in the house of Colonel Shashi Kant Sharma only for cooking food. The applicant was a security guard at the same house. Six month ago, the appellant came to her house to call her at 9:00 p.m. and told her that colonel has come and called her for cooking food. She went with him. As soon as she opened the gate of the house of colonel and entered inside, the appellant followed her and caught her hand, and put off her clothes. He began to hold her breasts with bad intentions and began coercing her and attempting to insert his urinal part into her urine tract. She raised alarm. On her screaming, Uma Kant Sharma and one person, who came to the house of Ratan Kant Sharma, reached the spot. Then, they scolded the appellant and freed her. During the scuffle, she sustained abrasions on her both knees and hands. She lodged the report Ex.Ka.-1 on 12.11.2008 after waiting for her nephew.
23. PW-1 victim 'X' in her cross-examination stated that her house is situated 1-1.5 Km. away from the house of S. K. Sharma, 5-7 minutes walking distance from the place of the incident. The house of colonel is situated on the main road which is a busy road. In the house of colonel, she has been cooking food for 10 years and she had not come to the house at 6:00 p.m. on the date of the incident. She used to go to prepare the food in the morning and evening. She did not go to the house to prepare the food at night. There are 4-5 rooms in the house. The distance between the main gate and the rooms is about 10-20 feet. The boundary of the house is higher than her height. At the time of the incident, she had put on a sari. The appellant has been working as a security guard for 6-7 months. The brother of colonel did not come just after she screamed.
24. The court asked questions to the victim 'X' wherein she stated that Uma Kant Sharma came after 10 -15 minutes till then she kept fighting and screaming. Uma Kant Sharma and Ratan Lal Sharma are brothers. They lived 2-3 houses away from the house of colonel and no other person except them reached on her screaming. The incident took place at 9 p.m. she did not remember the day and date of the incident. She had told the police about the facts of holding her chest, and the attempt of penetration, but it is not written in her statement. She is not aware of the meaning of the word 'ashleel'. Today she explained in court about 'Badtmeeji'. Uma Kant Sharma had come inside the gate and was standing near the lobby at some distance, at that time her sari was open and her blouse was torn. Today the sari and torn blouse are not present in the court.
25. She further stated in her cross-examination that she went to the police station on the next day of the incident. She did not remember the name of scribe of the complaint. There is overwriting on the date and year in the complaint. Before this incident, she was not in talking terms with the appellant. Medical examination has not been got conducted.
26. Some other questions have been asked by the court to the victim 'X' which are as follows:
When you did not have any talking terms with the appellant, how did you rely upon him and come? On 11.11.2008, it gets very dark at 9:00 p.m. why did you not bring your husband or any other member with you?
The victim 'X' stated that "I am serving there and he was also serving there. Whenever a servant will call, I would presume that I have been called. Whenever it became late during the feast or food parties I used to come alone. That day there was no feast or party. colonel sahab was not at home, he had gone outside. I went there upon being called because he told me that sahab has come."
27. The following suggestions have been asked from this witness, it is wrong to say that whenever the colonel was not present, she often went to meet the appellant and after being noticed by the brother of colonel, she lodged a false case.
28. It is noticeable that there are inconsistencies between the statement of the prosecutrix with regard to the presence of PW-2 Uma Kant Sharma, who claimed as eye witness of the incident at the spot. firstly; she stated in her statement-in-chief that on her screaming PW-2 Uma Kant Sharma and one other person, who had come to the house of Ratan Kant Sharma reached the spot and they scolded the appellant and saved her. secondly; she stated in her cross-examination that on her screaming PW-2 and Ratan Lal Sharma reached the spot and no other person except them reached. thirdly; she stated in her statement recorded under Section 164 Cr. PC. that hearing her cries an advocate, whose name she does not know, reached there and scolded the appellant.
29. It is further noticeable that despite the injuries sustained by the prosecutrix no medical examination has been conducted. As the prosecutrix stated in her cross-examination that PW-2 came after 10-15 minutes till then she kept fighting and screaming and during the scuffle, she received abrasions on her both knees and hands. PW-1 further stated in her statement recorded under Section 164 Cr. PC. that the appellant after grabbing her tightly pulled her hair and torn all her clothes, after dragging her from the gate he went towards the bush, in this attempt, he hit her and twisted her neck.
30. It is further noticeable that there is inconsistency with regard to the fact of attempting to commit rape. firstly; she stated in her cross-examination that she told the police about the facts of holding her chest and attempting penetration with her, but it was not written in her statement under Section 161 Cr. PC. and she did not tell about tearing off her blouse, pressing her chest and attempted to do intercourse under Section 161 Cr. PC. Although her statement recorded under Section 164 Cr. PC. stated that the appellant attempted to commit rape with her.
31. After analysing all of the above circumstances, it rounds off to the following facts: Firstly; during the attempt to commit rape she kept fighting for 10-15 minutes with the appellant and she sustained abrasions over her both knees and hands but she did not medically examine. Secondly; there is overwriting over the date of the complaint as well as the word 'Aaj' in the complaint (Ex.Ka.-1). Thirdly; there is a discrepancy with regard to the presence of PW-2 who reached the place of the incident on her screaming. Fourthly; there is an inconsistency between the statement of the prosecutrix with regard to attempt to commit rape with her.
32. PW-2 Dr. Uma Kant Sharma (Dental Doctor) stated in his statement-in-chief that the incident occurred at 8:30-9:00 p.m. on 10.11.2008 when his brother was not present in the house, and at that time he was lying in her room. The victim was engaged in preparing food every morning and evening whenever his brother was present in the house. In the same house, his brother was living in the front portion and he was living in the back portion of that house. He noticed that the appellant was in a drunken state and he went to the house of the victim to call her to prepare the food and she had to proceed immediately. Thereafter the appellant began to coerce and scuffle with her and also began making attempt to take her backward.
33. He stated further in his examination-in-chief that he awoke on the noise of daughter of Judge Chandra Sahab, who lived behind, saw from her rooftop, and said a man is harassing a woman who is screaming. When he came out, he saw in the tube light that the appellant was laying down over the victim in a bush, at that time the appellant was naked and was riding over her. He saw the appellant was doing obscene activities with the victim. He asked her to move away, then the appellant said that he was not his servant. After that the client of vakeel sahab reached there. The clothes and slippers of the victim were left there. Thereafter the victim went to her house. The clothes and slippers of the victim were left there. Then the appellant broke the door of room of the house of colonel with a trowel (Khurpi), the witness interrupted on which he told that he was repairing the stool. Before this incident, the appellant did obscene activities with transgenders. He dialed number 100 and went to the police station and met inspector Ranjit Dubey. Then the inspector came to the place of the incident. The appellant had absconded. He lodged the report.
34. PW-2 Dr. Uma Kant Sharma in his cross-examination stated that the victim has been working since 2000. He and the colonel lived in the same house and he was alone when the incident occurred. Daughter of Judge Sahab, who lived behind the house told that a person was teasing a girl. He saw the incident from a distance of 2 and a half meters, the appellant and victim at the front portion of the house on the lawn in a shrub, and the victim was screaming. The appellant was riding over the victim, her legs were widened and his pants were open. After seeing him, the appellant did not flee. He felt that the appellant was in a drunken state.
35. He further stated in his cross-examination that he and Dr. M. Tripathi informed the police and the police came at the spot and inquired about the incident. At that time appellant fled away. The victim called and she would have told the police about the rape. The inspector got written the report by him. After writing half report, the fact regarding theft had been told. The fact of theft was not mentioned. The appellant was arrested from the room of colonel at 2:30 hours of the night of 10/11 in his presence.
36. The following suggestions have been asked from this witness, it is wrong to say that the appellant and the victim had sweet relations. It is also wrong to say that a false report has been lodged on being seen by this witness.
37. After analysing the evidence of the witness it is noticeable firstly; that PW-2 reached the spot after receiving the information from the daughter of Judge Chandra who saw the incident from her rooftop. He resided in the back portion of the house. secondly; PW-2 saw the incident in a bush situated in the front part of the house, but the appellant had absconded. thirdly; PW-2 dialed 100 number and went to the police station and met with PW-3 S.I. Ranjit Dubey who came to the place of occurrence and called the victim. fourthly; He lodged the report with regard to the incident of theft, however, it is not on record. fifthly; the appellant has been arrested from the room of the colonel at 2:30 hours of the night of 10/11 in his presence i.e. on the date of the incident.
38. There is an inconsistency with regard to the arrest of the appellant in his statements, firstly; he stated that the appellant had absconded from the place of the incident secondly; he stated that the appellant was arrested from the room of colonel at 2:30 hours of the night of 10/11 i.e date of the incident, before lodging the FIR.
39. PW-3 SI Ranjit Dubey (I.O.) deposed that the investigation of the present case was assigned on 12.11.2008. He arrested the appellant on 12.11.2008. On 27.11.2008, he recorded the statement of the victim, Dr. Uma Kant Sharma, and Ratan Kant Sharma. He sketched the place of the incident (Ex.Ka.-2) after inspection at the instance of the victim. On 28.11.2008, copied the statement of the victim recorded under section 164 of Cr. P.C. and after completing the investigation, filed a charge sheet (Ex.Ka.-3) against the appellant under Sections 354, 376 read with 511 of IPC on 11.12.2008. The Chik FIR (Ex.Ka.-4) of the case was prepared by Head Constable Ashaarf Ali, who was posted with him. The lodging General Diary Rapat (Ex.Ka.-5) was also in the handwriting of HCP Asharaf Ali.
40. PW-3 SI Ranjit Dubey in his cross-examination further stated that the FIR was registered under Section 354 IPC. It is correct to say that holding the chest of the victim by the appellant and attempting to do intercourse is not mentioned in the written complaint, only obscene activities are mentioned. He recorded the statement of the victim on 27.11.2008 after 15 days of the incident because she was neither present at the spot nor found at her house. It is correct to say that he tried to meet the victim on 12.11.2008 but she could not be found. It is correct to say that he did not get her medical examination because there was no injury or abrasion on the body of the victim. Neither the clothes of the victim were taken into custody nor her clothes were found at the spot.
41. PW-3 SI Ranjit Dubey in his cross-examination further stated that he prepared the site plan of the place of incident at the instance of the victim, where the appellant committed obscene activities, which has been shown as 'AX' situated in the lawn in front of the house. This place is situated in the centre of the lawn. There was only grass in the lawn and no tree or shrub were there. There were Ashok trees on two sides, eastwards and northwards of the lawn. He did not tell how wide the lawn was. He also did not tell about the distance between the gate and the place of the incident. He could not tell if the distance between points 'AX' and 'BX' was 35-40 feet.
42. PW-3 SI Ranjit Dubey in his cross-examination further stated that the victim, in her statement stated that the incident occurred at 9:00 p.m., the appellant after holding her arms and committed obscene activities, he began pulling her and untied her sari with the intention to commit rape. She began screaming loudly. She further stated him that Uma Kant Sharma and Ratan Kant Sharma came and saved her chastity. It is correct to say that the victim in her statement, did not tell about tearing off her blouse, pressing her chest, and attempted to do intercourse. The witness himself stated that the fact of the attempt to do intercourse was told. It is also correct to say that the victim had not stated in her statement that the appellant had undressed himself.
43. PW-3 SI Ranjit Dubey in his cross-examination further stated that the statement of the victim under section 164 Cr.PC. is not present in the file. After the statement, he filed an application for perusal of the statement. That application is also not in the file. It is correct to say that in the statement under section 164 Cr. PC the victim told about the arrival of a person at the place of the incident. The victim was not conversant with the names of two persons because both were not known to her. It is also correct to say that in the statement under section 161 Cr. PC. she told about the arrival of two persons Uma Kant Sharma and Ratan Lal Sharma (brothers of colonel sahab), who were living at the aforesaid house at the time of the screaming. It is correct to say that name of Uma Kant Sharma and Ratan Lal Sharma are mentioned in the complaint. It is correct to say that on the basis of the statements of the victim as well as witnesses he had added Section 376/511 IPC.
44. The following suggestions have been asked from this witness; it is wrong to say that the victim had not been working in the house of colonel for the last 10 years. It is also wrong to say that the victim had told about the occurrence of obscene activity and under the pressure of higher officers he added Section 376/511, IPC. It is also wrong to say that the appellant has been implicated in false case under the pressure of colonel sahab.
45. After going through the evidence of this witness, it is noteworthy firstly; He recorded the statement of the victim on 27.11.2008 after 16 days of the incident because she was neither present at the spot nor found at her home. Secondly; he did not conduct medical examination of the victim because there was no injury or abrasion on the body of the victim. Thirdly; the victim in her statement before him did not tell about tearing off her blouse, pressing her chest and attempting to do intercourse. Fourthly; he prepared the site plan on the instance of the victim, as shown as 'AX' situated in the mid of the lawn there was no tree or shrub. Fifthly; he added Section 376/511, IPC after recording the statement of the victim and PW-2 under Section 161, Cr. PC. which have been recorded on 27.11.2008.
46. PW-4 HCP Asharaf Ali Khan (scribe) in his statement-in-chief stated that he had registered the FIR (Ex.Ka.- 4) as Case Crime no. 504 of 2008, under Section 354 IPC at PS Hasanganj District Lucknow on the basis of the victim's written complaint and endorsed it in G.D. Report No. 7 at 6:10 hours. By using carbon with the original he had written in a single process, a carbon copy of G.D. Rapat of lodging FIR is annexed to the record as Ex.Ka.-5, which is in his handwriting with his signature.
47. PW-4 HCP Asharaf Ali Khan (scribe) in his cross-examination stated that the victim had brought written tehreer (complaint) to the police station. She had come to the police station alone and when he asked her, she had told him that there was no external and internal injury on her body therefore, her medical examination was not conducted. The victim had not come carrying any torn clothes. The original G.D. Rapat is not present before him today. As per the rules, it has not been weeded out.
48. One suggestion has been asked from this witness; it is wrong to say that he had registered the case under the pressure of higher officers.
49. As per the testimony of this witness, it is noticeable that he asked the victim about external and internal injury but after her denial, the medical examination of the victim was not conducted.
DISCUSSION:
50. The questions arising for consideration before me are: Whether the prosecution case, inspires confidence on the evidence adduced? Whether the prosecutrix, is a witness worthy of reliance? Whether the testimony of PW-1 who has been a victim of sexual assault and attempt to rape stands in need of corroboration and, if so, whether such corroboration is available in the facts of the present case? Whether there was an unexplained delay in lodging the FIR? Whether the findings of fact recorded by a court be held to be perverse?
51. In order to arrive at the correct conclusion, I deem it appropriate to examine the basic ingredients of Section 375, IPC (Before the Amendment 2013) punishable under Section 376, IPC to demonstrate whether the conviction of the appellant under Sections 376/511, IPC is sustainable.
"375. Rape.- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
Firstly.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
52. The law on the subject has been clearly and explicitly enunciated by the Apex Court in various judgments. In the case of State of U.P. Babul Nath (1994) 6 SCC 29 the Supreme Court dealt with the basic ingredients of the offence under Section 375 in the following words:- (SCC, para 8, page 34) "8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows:
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary of the offence of rape.
From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Section 375 and 376 of IPC. That being so it is quite possible to commit legally the offence or rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."
53. In Tarkeshwar Sahu v. State of Bihar (Now Jharkhand) (2006) 8 SCC 560, the Supreme Court has observed as under. (SCC, para 22, page 572) "22. In the backdrop of settled position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Sections 376/511 IPC is wholly illegal and unsustainable."
54. The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne's Commentaries on the Indian Penal Code to the effect:
"Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparation have been made."
55. In Stephen's Digest of Criminal Law, 9th Edition, attempt' is defined thus:
"An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case."
56. In Madan Lal v. State of J & K, (1997) 7 SCC 677, the Supreme Court observed as under: (SCC para 12, page 689) "12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her lie flat on the ground undressed himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with 511 IPC. In the facts and circumstances of the present case the offence of an attempt to commit rape by the accused has been clearly established and the High Court rightly convicted him under Section 376 read with Section 511 IPC."
57. The difference between 'attempt' and 'preparation' in a rape case was again considered in Koppula Venkat Rao v. State of A.P. (2004) 3 SCC 602, the Supreme Court observed as under: (SCC para 10-11, page 606) "10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect."
58. In State of Madhya Pradesh v. Mahendra @ Golu 2021 SCC Online SC 965 the Supreme Court observed as under:
"16. A plain reading of the above provision spells out that sexual intercourse with a woman below sixteen years, with or without her consent, amounted to 'Rape' and mere penetration was sufficient to prove such offence. The expression 'penetration' denotes ingress of male organ into the female parts, however slight it may be. This Court has on numerous occasions explained what 'penetration' conveys under the unamended Penal Code which was in force at the relevant time. In Aman Kumar v. State of Haryana (2004) 4 SCC 379, it was summarised that:-
"7. Penetration is the sine quo non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see joseph Lines, IC&K 893)"
59. In Aman Kumar & Anr. v. State of Haryana (2004) 4 SCC 379, the Supreme Court observed as under: (SCC para 8, page 387) "8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded."
60. The important ingredient of the offence under Section 375 punishable under Section 376, IPC is penetration. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the accused within the four corners of Section 375, IPC. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Section 375 and 376 IPC.
61. In case of State of Punjab v. Major Singh AIR 1967 SC 63 a three-Judge Bench of the Supreme Court considered the question whether modesty of a female child of 7 months can also be outraged. The majority view was in affirmative. Bachawat, J. on behalf of majority, opened as under: (AIR para 15 page 67) "15. The offence punishable under section 354 is an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define, 'modesty'. What then is a woman's modesty?
62. It is settled position of law that a conviction can be based entirely on the statement of a rape victim, a detailed discussion on this subject is to be found in Vijay @ Chinee v. State of Madhya Pradesh4, as, thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence, and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. She stands at a higher pedestal than an injured witness. (Vide: Phool Singh v. State of Madhya Pradesh5, Ganesan v. State Rep. By its Inspector6, State of Himachal Pradesh v. Raghubir Singh7, Wahid Khan v. State of Madhya Pradesh8, Rai Sandeep @ Deepu v. State9, State of Rajasthan v. Babu Meen10, Mohd. Iqbal v. State of Jharkhand11, and Md. Ali v. State of U.P.12)
63. It is a well settled proposition of law that a prosecutrix cannot be considered to be an accomplice. As a rule of prudence, courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of rape, has not been falsely implicated. There is no rule of law that her testimony cannot be relied upon without corroboration. It has also been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence. However, if the court may find it difficult to accept the testimony of the prosecutrix, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. (Vide: Rameshwar v. State of Rajasthan13, Sidheshwar Ganguly v. State of West Bengal14, Gurcharan Singh v. State of Haryana15, Modho Ram & Anr. v. State of U.P.16, State of Maharashtra v. Chandraprakash Kewalchand Jain17, Modam Gopal Kakkad v. Naval Dubey & Anr.18, State of Rajasthan v. Shri Narayan19, Karnel Singh v. State of M.P.20, Bodhisattwa Gautam v. Miss Subhra Chakraborty21, State of Punjab v. Gurmit Singh & Ors.22 and State of U.P. v. Pappu @ Yunus & Anr.23)
64. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety. (Vide: State of Rajasthan v. Om Prakash24, State of U.P. v. M. K. Anthony25, State v. Saravanan & Anr.26)
65. It is a settled proposition of law that even if there are some omissions, contradictions, and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions, and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statement of witnesses. (Vide: Sohrab & Anr. v. State of M.P.27, Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat28, Prithu @ Prithi Chand & Anr. v. State of Himachal Pradesh29, and State of U.P. v. Santosh Kumar & Ors.30)
66. The delay in lodging the FIR in a sexual assault cannot normally affect the prosecution case, as held by the Supreme Court in various judgments, but where there is an inordinate delay in registration of the FIR, in such circumstances, it casts a cloud of suspicion on the credibility of the entire prosecution story and such type of delay would certainly be regarded as fatal to the prosecution case and thus, the whole prosecution case is under the cloud of suspicion and doubt. (Vide: Satyapal v. State of Haryana31, Karnel Singh v. State of M.P.32)
67. The absence of injuries on the body of the prosecutrix, generally, gives rise to an inference that she was a consenting party to coitus and shows that the prosecutrix did not resist but the absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. (Vide: Gurcharan Singh v. State of Haryana33, Devinder Singh & Ors. v. State of Himachal Pradesh34)
68. It is trite law that conviction cannot be based on the sole testimony of the prosecutrix, which is inconsistent and unsupported by the medical evidence and evidence of other witnesses. (Vide: Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr.35, Dilip & Anr. v. State of Madhya Pradesh36, Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr.37, Yerumalla Latchaiah v. State of Andhra Pradesh38, Mohd. Habib v. State39, Zahroor Ali v. State of U.P.40, State of Karnataka v. Mapilla P. P. Soapi41)
69. In Sadashiv Ramrao Hadbe (supra), in this case, the version given by the prosecutrix was unsupported by medical evidence and the surrounding circumstances. No injury was found on the body and the private parts of the prosecutrix. Even the doctor who examined her was unable to give any opinion about the alleged sexual intercourse. The Supreme Court had held that the appellant was entitled to the benefit of doubt and conviction was set aside.
70. In Dilip (supra), the Supreme Court disbelieved the statement of the prosecutrix, as it was contradicted by the statement of her own aunt and the medical evidence, as well as the report of the forensic science laboratory and had observed that the probabilities factor operated against the prosecutrix as it came on the record that she had stated that she could not resist the two accused persons who had allegedly raped her as she was over-awed at that time. The prosecutrix had complained that she had sustained injuries and had also bled from her private part which was not corroborated by the medical evidence and also no semen was found on the vaginal swab.
71. In Vimal Suresh Kamble (supra), the Supreme Court discarded the evidence of the prosecutrix since it did not appear to be natural and truthful. Her conduct after alleged rape was considered to be unnatural and not believable. There was also a delay in lodging the FIR and the medical evidence did not support the report of the chemical analyst, as the prosecutrix had taken bath on the day of the alleged rape, and hence it would have been known to her that this would have caused for the evidence to disappear.
72. In Yerumalla Latchaiah (supra), the Supreme Court disbelieved the prosecutrix since no injury was found on the body part of the victim, hymen was found intact and the vaginal smear did not detect any semen on them.
73. In Mohd. Habib (supra) a Division Bench of Delhi High Court had rejected the testimony of the 21 year old prosecutrix as it was found to be unreliable since there was no inflammation or redness on the private part of the girl, nor was there any injury on the male organ and the testimony of the eye witness did not corroborate the version of the prosecutrix. It had been further observed that the prosecutrix had not given any explanation as to why her mother who had come to the spot immediately after the occurrence, who might have known about the entire events as it might have been told to her by the prosecutrix was not produced or examined. The swab of the vagina of the prosecutrix also did not show any seminal stain.
74. In the State of Karnataka v. Mapilla (supra), the Supreme Court had observed that the prosecution had not produced any medical report regarding the examination of PW-3. There was no evidence whatsoever to show that the doctor did prepare a medical report, hence the testimony of the prosecutrix was not believed. It was further disbelieved the prosecutrix as the alleged rape had taken place in the proximity of many neighbours and therefore, it could not be accepted that no one came after hearing the cries of the prosecutrix.
75. Having noticed the contentions of learned amicus curiae and learned AGA and having taken a glimpse of the evidence on record, now I will weigh the arguments of learned amicus curiae for the appellant. The arguments are three fold; firstly; the FIR of the present case was lodged after an unexplained delay of 30 hours of the incident because of consultation, and deliberation whereas police had reached the door step immediately after the incident and called the victim. Secondly; the prosecution case is based on solitary testimony of the victim and thirdly; the evidence of victim is not trustworthy, cogent and reliable.
76. As per prosecution case the incident was took place at 8:30 p.m.- 9:00 p.m. on 10.11.2008, PW-2 Uma Kant Sharma had reached at the place of incident and he saw the incident, saved the victim from the appellant. The FIR was lodged by the victim on 12.11.2008 at 6:10 a.m. under Section 354, IPC and the appellant had been arrested on 12.11.2008 at 8:00 a.m. from the place of the incident. On 27.11.2008, the Section 376/511, IPC was added on the basis of statement of the victim as well as PW-2 Uma Kant Sharma recorded under Section 161 Cr. PC.
77. Learned amicus curiae is assailing the judgment firstly, there are material contradictions between the evidence of PW-1 victim and PW-2 Dr. Uma Kant Sharma with regard to the fact of lodging the FIR, as urged that the FIR was lodged after consultation and deliberation because PW-3 SI Ranjit Dubey had come at the place of the incident immediately after the incident, which is taken place on 10.11.2008 at 9:00 p.m. and PW-3 called the victim and the appellant had been arrested on 10/11/11/2008 at 2:30 a.m. but the FIR was lodged on 12.11.2008 at 6:10 a.m. after about 30 hours of the incident.
78. There is inconsistency between the evidence of PW-1 and PW-2 with regard to lodging the FIR, PW-1 stated that PW-1 was lodged the FIR on 12.11.2008 at 6:10 a.m. after waiting her nephew, on the other hand, PW-2 stated that he reached the place of occurrence, saved the victim from the appellant, dialed 100 number and met with PW-3 SI Ranjit Dubey who came to the place of the incident and presented the victim and he told the police about the offence of theft and lodged the FIR against the appellant.
79. Furthermore, PW-2 stated that the appellant was arrested on 10/11.11.2008 at 2:30 a.m. from the room of the house of S.K. Sharma which had been opened by the appellant by a trowel, he interrupted on which the appellant told that he was repairing the stool but PW-3 SI Ranjit Dubey stated that the appellant was arrested on 12.11.2008.
80. After a close scrutiny of the evidence, many other inconsistencies have been surfaced i.e. there is overwriting in the complaint (Ex.Ka.-1) and chik FIR (Ex.Ka.-4) by the overwriting, date of the complaint, number of crime have been changed, G.D. Rapat (Ex.Ka.-5) has no number, date or time, name of the scribe is not mentioned in the complaint, PW-1 victim stated that she did not know the name of scribe of the complaint, there is no date on which copy of the FIR (Ex.Ka.-4) has been sent to the jurisdictional Magistrate.
81. The second limb of the argument is that the prosecution case wholly depends on the sole testimony of PW-1, because no one has seen the evidence, because there are material inconsistencies in this regard between the evidence of PW-1 and PW-2.
82. There are material contradictions with regard to presence of PW-2 who claim himself as an eye witness of the incident. As per prosecution case the incident was taken place nearby the main gate of the house in the lawn, at that time owner of the house was not present in the house PW-2 Uma Kant Sharma and one person, who came to the house of Ratan Kant Sharma, reached the spot after hearing the alarm. PW-1 stated in her statement recorded under Section 164 Cr. PC. that on her crying an advocate, whose name she did not know, reached there. But on the other hand PW-1 victim stated in her cross-examination that PW-2 Uma Kant Sharma and Ratan Kant Sharma reached on her screaming after 15 minutes and no other person except them reached. It is significance that the appellant fled away from the spot who was in drunken position, after reaching the two person.
83. PW-1 stated that PW-2 resided 2-3 houses away from the place of the incident, on the other hand PW-2 stated that he resided in the back portion of the house. He further stated that he awoke after hearing noise of the daughter of Judge Chandra, who lived behind, when he came out, and saw the appellant was lying down over the victim in a bush at that time the appellant was naked. PW-3 SI Ranjit Dubey stated that the victim had not told him that the appellant put off his clothes. PW-1 victim had also not stated before the trial court that the appellant put off his clothes. PW-2 further stated that the incident took place in a bush, as per victim the incident took place after entering in main gate of the house and then in the mid of the lawn, where there were no tree or bush as corroborated by PW-3 SI Ranjit Dubey, who prepared the site plan (Ex.Ka.-2) on instance of the victim.
84. Learned amicus curiae further urged that the solitary ocular testimony of PW-1 does not appear reliable and does not inspire confidence in the prosecution case, because there is material inconsistencies with regard to the incident, place of the incident and injury of the victim, there is no medical report of the victim.
85. PW-1 victim stated that she had told the police about the facts of holding chest and attempt of penetration, but it is not written in her statement recorded under Section 161 Cr. PC. as corroborated by PW-3 SI Ranjit Dubey who stated that tearing of the blouse, pressing chest, and attempting to do intercourse is not mentioned in statement of the victim because the victim did not tell so.
86. PW-2 Uma Kant Sharma stated that he saw the appellant lying down over the victim in a bush, but on the other hand, as per PW-3 SI Ranjit Dubey the incident took place on the mid of the lawn, there was no tree or bush.
87. There is no medical examination report of the victim. PW-1 victim stated that she sustained abrasions on her both knees and hands, because she kept fighting for 10-15 minutes with the appellant. She further stated in her statement under Section 164 Cr. PC. that the appellant after grabbing her tightly pulled her hair and torn all her clothes, after dragging her from the gate he went towards the bush and took off all his clothes, and tried to rape. In spite of that she was not medically examined herself because she recieved no injury as stated by PW-3 SI Ranjit Dubey that he did not get her medical examination done because there was no injury and abrasion on the body of the victim.
88. It is not the duty of the defence to explain as to how and why in a sexual assault case the victim has falsely implicated the appellant. The evidence of prosecutrix cannot be accepted merely because the appellant has not been able to say as to why she has come forward to depose against him.
89. The findings of fact recorded by a court be held to be perverse has been dealt with and considered in Babu v. State of Kerala, (2010) 9 SCC 189 in paragraph 20, which is as under:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide: Rajinder Kumar Kindra v. Delhi Admin.42, Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons43, Triveni Rubber & Plastics v. CCE44, Gaya Din v. Hanuman Prasad45, Aruvelu v. State46 and Gomini Bala Koteswara Rao v. State of A.P.47)"
90. On a totality of the consideration of entire evidence and keeping in mind the settled position of law, I am unhesitatingly of the opinion that the testimony of PW-1 victim, PW-2 Dr. Uma Kant Sharma is unreliable. The prosecution evidence is not covincing. In support of this conclusion regard be had to the following circumstances:
(a) As per occular evidence the appellant was arrested on 10/11.11.2009 at 2:30 a.m. and the police had come at the place of the incident after calling 100 number and the victim called by the police, but the FIR has been lodged after 30 hours of the incident on 12.11.2008 at 6:10 a.m. despite the fact that the police were present at the door-step. In addition to that, PW-2 lodged a FIR with regard to fact of theft against the appellant immediately after the incident as he stated.
(b) There is no date for sending the copy of the FIR to jurisdictional Magistrate.
(c) There is overwriting in the complaint and the FIR with regard to the date of the complaint, case crime no. Name of the scribe did not disclosed by the prosecution.
(d) After recieving injuries by the victim as stated, no medical examination was conducted. However, she did not recieve any injury as stated by PW-3 and PW-4.
(e) The prosecution has not established the place of the incident as noticed above and there is inconsistency between the statement of PW-1, PW-2 and PW-3 in this regard.
(f) As per prosecution case, the offence under Section 376/511, IPC has been added on 27.11.2008 after recording the statement of the witnesses after 17 days of the incident.
(g) The statement recorded under Section 164 Cr. PC. having no date of its recording before the Magistrate, however PW-3 endorsed the same in case diary on 28.11.2008. It is surprising fact that PW-3 SI Ranjit Dubey stated that the statement under Section 161 Cr. PC. as well the application which has been moved by him before the Magistrate to see the statement are not on record, but these documents are available on record.
(h) The statement recorded under Section 164 Cr. PC. and application aforesaid are on record as paper no. A-6/23 inspite of that the prosecution had not proved the signature of the victim before the trial court.
(i) As noticed above that there are material inconsistencies with regard to the lodging of FIR, the presence of PW-2 Dr. Uma Kant Sharma, place of the incident, fact of attempting rape.
91. Following aspects emerge from the discussion on the prosecution evidence:
(i) PW-2 neither witnessed the incident nor he reached the place of occurrence. The victim did not recieved any injury. The appellant was arrested on 10/11.11.2008 at 2:30 a.m. (on the date of the incident) from the room of the house by PW-2. This gives rise to two possibilities. One, no incident took place at 9:00 p.m. Two, the incident of theft took place in the night of 10/11.11.2008 and PW-2 called the police, PW-3 SI Ranjit Dubey arrested the appellant. Three, the victim was consenting party after seeing by someone she lodged the FIR after 30 hours of the incident.
(ii) The aforesaid possibilities derive strength from the delay in lodging the FIR despite the presence of police at the place of the incident after calling, and reached there and called the victim. In addition to that the incident took place on the mid of the lawn, which is open place.
92. On the basis of the facts and circumstances discussed above, an inferrence can easily be drawn that the prosecution case is wholly based on sole testimony of PW-1 victim and the evidence of the victim does not inspire confidence. Therefore, the entire genesis of the case is in serious doubt in view of the contradictions and material inconsistencies.
93. The contrary view taken by the trial court is against the weight of the evidence. I hardly find objective evaluation, analysis, or scrutiny of the testimony in a proper persepective. The serious infirmities pointed out by the defence raising doubt with regard to the prosecution case have been brushed aside by the learned trial judge by simply stating that the delay in lodging the FIR does not affects the prosecution case and there is no material contradictions in the prosection evidence. The trial court, in my view, was not right and justified in lightly brushing aside the contradictions and omissions borne out from the prosecution evidence, that too, when the entire prosecution rested on a sole testimony, PW-1 victim.
94. For all the reasons recorded and discussed above, I am of the considered view that the prosecution has failed to prove the charge of offences punishable under Section 354, 376/511, IPC against the appellant beyond reasonable doubt. As the evidence on record does not bring home the guilt of the appellant beyond the pale of doubt, the appellant is entitled to the benefit of doubt. Consequently, the appellant is entitled to be acquitted of all the charges for which he was tried.
95. As a result, the criminal appeal is allowed. The judgment and order of conviction as well as sentence recorded by the trial court is set aside. The appellant is acquitted of all the charges for which he has been tried. The appellant is released after completing the sentence as awarded by the trial court as informed by learned amicus curiae and AGA.
96. The trial court record be returned forthwith together with a certified copy of this judgment.
Order Date: November 16, 2022 T. Sinha (Hon'ble Sanjay Kumar Pachori, J.)