Ram Bilas & 2 Ors. vs State Of U.P.
2013 Latest Caselaw 1797 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 17
 
Case :- CRIMINAL APPEAL No. - 2975 of 2007
 
Petitioner :- Ram Bilas & 2 Ors.
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- D.P. Singh,Arun Kumar Mishra
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Zaki Ullah Khan,J.

1. The instant appeal has been preferred by the appellant against the judgment and order dated 03.12.2007 passed by learned Additional Sessions Judge, Fast Track Court No.2, Hardoi in Sessions Trial No.347 of 2001 sentencing the appellant to undergo rigorous imprisonment for ten years together with a fine of Rs 5,000/- under section 376 I.P.C. and in default of payment of fine another three months simple imprisonment and he has also been sentenced to undergo rigorous imprisonment for four years under section 506 (2) I.P.C.

2. Learned counsel for the appellant while arguing the appeal informed the Court that the role assigned to each accused was initially the same but co-accused Kalloo and Kishan were acquitted by the trial court under section 376 I.P.C. but sentenced to rigorous imprisonment for two years together with a fine of Rs. 2000/-each under section 354 I.P.C. and in default of payment of fine each shall undergo one month's simple imprisonment. They have also been sentenced to undergo four years imprisonment under section 506(2) I.P.C. each but they were acquitted under section 376 I.P.C..

3. Learned counsel for the appellant informed that the co-accused have served their sentence and they have been released from jail and, therefore, they are not pressing the appeal. The appeal is being pressed on behalf of appellant-Ram Bilas who is undergoing the imprisonment and has already served six years of imprisonment.

The factual matrix of the case is as under:-

4. On 28.12.2000 the complainant Jay Ram lodged a written report at the police station-Atrauli, District-Hardoi alleging that his daughter Smt. Rekha Devi who was married to Lala Ram, son of Nand Ram was sent to Maika (parents house) his house by in laws on 27.12.2000. His daughter informed him that on 13.12.2000 at about 5:00 p.m. when she was coming back to her house after plucking mustard leaves, the appellants Ram Bilas, Kishan and Kallu armed with pistol appeared and caught hold of her and each of them raped her and then threatened her by showing pistol that in case she raises alarm she will be killed. His daughter has informed that she narrated the whole story to one lady Smt. Bitta. The complainant lodged written report at the police station concerned. The scribe was Nand Kishore, who is elder bother-in-law of the prosecutrix. The investigation took place on his report and on the basis of written report, Ext. Ka-4 the F.I.R. was lodged the description of the same was made in G.D. Ext.-6. The Investigating Officer prepared a site plan Ext. Ka-8. The prosecutrix was medically examined by one Dr. Shakuntala Reddy on 28.12.2000. Her medical examination report is Ext. Ka-1. The X-ray was also conducted on 29.12.2000. X-ray report is Ext.Ka-3. The doctor prepared a supplementary report Ext. Ka-2 on the basis of this X-ray report and after conducting thorough investigation, the charge-sheet Ext. Ka-7 was submitted before the court concerned and the case was committed to the court of sessions. The accused-persons pleaded not guilty and claimed trial.

5. The prosecution has examined as many as seven witnesses to prove its case. P.W-1 Smt. Rekha is prosecutrix, P.W.-2 is Dr. Shakuntala Reddy, P.W.-3 is Dr. S.K. Rastogi, P.W.-4 is Jay Ram, P.W.5 is Constable Om Prakash, P.W.-6 is S.I, Prem Shankar Katiyar., P.W.-7 is S.I., Hari Ram Sharma. The Court after examining the witnesses was of the opinion that the charges have been proved against the appellant beyond reasonable doubt and held him guilty under section 376 and 506 (2) I.P.C. But giving benefit of doubt acquitted co-accused under section 376 I.P.C. but convicted them under sections 354 and 506(2) I.P.C. Being aggrieved by the aforesaid judgment and order, the instant appeal has been preferred.

6. Learned counsel for the appellant argued at length. The first and foremost point raised by the learned counsel for the appellant is that there is unexplained delay in lodging the F.I.R. The incident took place on 13.12.2000 at her in law's place but the matter was reported when she came to her parent's house and disclosed to her father who lodged F.I.R. by getting it scribed through her elder brother-in-law Nand Kishore. The delay has not been explained that why the prosecutrix P.W.-1 did not report the matter immediately or after a day or two. Therefore, there is unexplained delay of fifteen days which is far from satisfaction and the prosecution utterly failed to prove its case beyond doubt and all the story is concocted and based on hearsay .

7. Next point raised by the learned counsel for the appellant is that Smt. Bitta has not been examined although she could have been the best and reliable witness because immediately after occurrence the matter was reported to her and she was the first witness who could express the true facts but the prosecution has neither arrayed her as witness nor she has been examined by the prosecution.

8. The other point raised by the learned counsel for the appellant is that the prosecutrix narrated that the incident took place near Bas Ki Kothari. She was forced to lie down and then all the three accused exhausted their lust but there are no marks of external injuries on her body. Even though medical examination was conducted after a considerable time, there must be some traces of injuries as alleged by her because she alleged that she was pulled down and all the accused-persons satisfied their lust and raped her.

9. The next point raised by the learned counsel for the appellant is that P.W.-4, Jay Ram informant has stated in his testimony on oath that his daughter had narrated to him that immediately after incident when she came back to her in law's house, her father-in-law, her mother-in-law and brother-in-law and husband were present at the house but she did not narrate the incident to them. This is very fatal for the prosecution to withhold this fact.

10. Learned counsel for the appellant also reiterated that the incident was narrated by the prosecutrix after a lapse of fifteen days to her father and not to her mother which is against the natural conduct. She ought to have narrated the incident initially to her husband and then to any other person but she kept mum for fifteen days and then narrated the incident to his father.

11. Learned counsel also pointed out that P.W.-4 has admitted that accused Kallu's family and their family were an inimical terms and that is why they have been implicated falsely.

12. Replying to the arguments learned counsel appearing for the State informed that Bas Ki Kothi is phenomenal and is the name of place and not field containing the part of the bamboo sticks which can not cause scars and contusion , therefore, there is no question of causing any injury on the external body of the prosecutrix.

13. Learned Additional Government Advocate appearing for the State also explained that such type of offences are used to be concealed by the society. In general people do not like such type of offences to be brought to light but somehow when they cannot resist then the matter is reported and, therefore, there is delay which that will be considered natural and as per the conduct of the society. Normally people scare that other persons should not know what has happened to them especially with a woman because it creates a bad name and bad reputation not only to the lady but also to the entire family, therefore, in order to save herself she did not disclose true facts to everybody but when her father came she narrated about the incident. During the testimony before the court, she has narrated the entire facts that her mother-in-law was at home but no male member was there, therefore, she narrated the facts to her mother-in-law who advised her to wait for some male member and when her father came she narrated the entire story to her father, therefore, delay has already been explained and even the Hon'ble Apex Court has given latitude in these matters and delay has not been considered as a great hurdle. Initially the prosecutrix had levelled allegations against all the three persons but during her cross-examination, she explained how the things took place. She explained that first of all she narrated the incident to her mother-in-law. Before that and immediately after the occurrence she narrated the incident to one lady Bitta and Bitta's cousins are Munshi and Bawa who are on inimical terms with the accused persons. Smt. Bitta is the daughter of Ram Sahare.

14. Learned A.G.A also argued that there is no question of false implication. The appellant has not been able to establish that why he has been implicated falsely. There is no reason why prosecutrix will file a false complaint against the appellant and others.

15. Ext. Ka-4 written report was presented by complainant, father of the prosecutrix, before the police alleging that on 13.12.2000 when his daughter was coming back after plucking mustard leaves, she was raped by appellant and two other co-accused. They immediately appeared before her armed with a country made pistol. She was caught hold by one and each of them satisfied their lust by turn and then they threatened her for dire consequences that she will be killed in case she narrates the incident to anybody. On the basis of Ext. Ka-4, the F.I.R. Ext.Ka-5 was lodged on 28.12.2000 at about 11:30 a.m. and the investigation was started and after investigation charge-sheet was submitted against the accused-persons. She has been medically examined after a lapse of sixteen days i.e. on 29.12.2000. Since the matter relates to oral testimony and oral allegation that too after fifteen days, in my opinion there should be corroboration of such incident. Best corroborating witnesses wtould be the doctors who are very independent witnesses. P.W.-2 is Dr. Shakuntala Reddy, who had conducted her external as well as internal examination. Since the matter was reported after fifteen days, spermatozoa was not found in her vagina and the vagina was clear. The doctor also did not find any mark of injury on her body. There is no dispute regarding age of the prosecutrix as she was a married Indian woman having a son of four years. During external examination the doctor did not find any mark of injury on her body. The prosecution explained this fact that she was raped by all the three accused persons and she had caught hold and after pulling down her they satisfied their lust, therefore, there is no question of any external injury. The allegation by the appellant that if she was ravished and treated roughly and pulled down then there must have been the marks of injury on her back portion of the body. The medical examination took place on 29.12.2000 and the matter relates to 13.12.2000, therefore, the question of injury is ruled out. As far as the appellant is concerned, he could not establish any sort of enmity or any ill will or any reaso to show as to why he has been falsely implicated?

16. On the other hand, learned trial judge has evaluated her testimony and found that she was ravished only by the appellant and the other two persons only helped him and did not rape her. They were found guilty of sections 354 and 506 I.P.C. No cross appeal has been preferred, therefore, there is no question of examining that part of the judgment.

17. As per the judgment and order which is under challenge only appellant has been held guilty for offence under section 376 I.P.C. i.e. committing rape. In view of section 114 of the Evidence Act the presumption can be drawn that sole testimony of the prosecutrix is sufficient to hold the accused guilty. But at the same time, it is not safe to convict a person on the sole testimony of the prosecutrix unless there is corroboration. All through the trial of the case the most important witness i.e. Smt. Bitta has not been examined, who was first informed by the prosecutrix about the incident. There are certain contradictions in the testimony of P.W.-1. She said that she narrated the incident to her mothe-in-law and all the male members were not present but her father P.W.-4 said that all of them were present when she narrated the story the written report was scribed by elder brother of her husband. It is very surprising that for fifteen days she concealed the incident. It is very true that in Indian society people usually people conceal the facts of such nature but at the same time this is also very important that they do not highlight after fifteen days and these types of matter are reported normally to the ladies and not to the gents . The conduct of the prosecutrix that she narrated the incident to her father and not the mother is not worthy of reliance. The best corroborating evidence could have been the doctors but both the doctors did not corroborate any single fact of the prosecutrix. The main reason is that her medical examination took place after more than fifteen days. The burden lies on the prosecution to establish the case beyond all reasonable doubts. It is true that the accused could not establish any enmity or any sort of ground for false implication but at the same time the prosecution itself has not been able to establish any plausible link in the story and it appears that the story is without base. The lady's statement has not been corroborated and best witness Smt. Bitta has been withheld for the reason best known to prosecution. The only thing is that relying upon the sole testimony of prosecutrix conviction can be upheld but it is not safe to convict a person on the sole testimony of the prosecutrix unless there is slightest corroboration to it. The prosecution failed to discharge his burden.

18. The prosecution story should be in the manner that it should conspire confidence in its case. The prosecution case in the instant appeal is that the prosecutrix said that she was ravished by three persons. The trial judge concluded that she has been raped by only appellant and other persons only committed indecent assault; that means the testimony is the same but the court has believed her half statement and disbelieved the rest statement. Normally the judicial proprietary demands that either the statement should be believed or should be discarded as a whole. Part statement should not be upheld. The trial judge imported the reasons for delay in F.I.R., plausible explanation has not been given on record but the trial judge imported on her own thought and pronouncing the judgment on the basis of reason on her own imagination which is far from the facts of the record. The contradictions are very material that prosecutrix-P. W.1 stated that only mother-in-law was there. Initially in her statement, she said that only she did not disclose to anybody but in her subsequent statement she disclosed that she has narrated her mother-in-law who advised that wait for some male member to come back at home. After fifteen days she narrated the incident to his father who made a written report and scribe her elder brother-in-law. I do not find any slightest corroboration on record.

19. In my opinion, the judgment and order dated 03.12.2007 passed by Additional Sessions Judge, Hardoi (F.T.C. No.2) is liable to be set aside and the appellant is liable to be acquitted.

20. Accordingly, the appeal is allowed. The judgment and order dated 3.12.2007 passed by Additional Sessions Judge (F.T.C. No.2) Hardoi in Sessions Trial No.347 of 2001 is set aside. The appellant is acquitted of the charges under section 376 and 506 (2) I.P.C. He is in jail. He shall be released from jail forthwith if not wanted in any other case.

21. Registry of this Court is directed to communicate this judgment and order to the court concerned and jail concerned forthwith for immediate compliance.

Order Date :- 8.5.2013

Akhilesh/-