Ram Singh @ Dharmbir Singh @ ... vs State Of U.P.
2013 Latest Caselaw 2061 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
                                              			COURT NO.45                                                                                
 
CRIMINAL JAIL APPEAL NO.3695 OF 2008
 

 
Ram Singh @ Dharmbir Singh @ Balyogi Ji Siddh  Baba.................................................................Appellant.
 
                                    Versus
 
State of U.P....................................................Respondent.
 

 
Hon'ble Surendra Kumar, J.

1. Heard Sri J. Abbas, learned counsel for the appellant and Sri I.P.S. Rajpoot, learned AGA for the State.

2. The instant criminal jail appeal has been filed by Ram Singh @ Dharmbir Singh @ Balyogi Ji Siddh Baba son of Kamal Singh, resident of village Batpura, Police Station Sahpau, District Hathras, challenging his conviction and sentence awarded vide judgment and order dated 1.5.2008 passed by Additional Sessions Judge, FTC No.2, Agra, in Session Trial No.784 of 2006 State Vs. Ram Singh @ Dharmbir Singh @ Balyogi Ji Siddh Baba, relating to Crime No.106 of 2006, under Sections 363, 366, 376 I.P.C. Police Station Malpura, District Agra whereby the appellant was convicted under Sections 363, 366, 376 I.P.C. and awarded sentence seven years rigorous imprisonment under Section 363 I.P.C. with fine of Rs.5,000/-, in default of payment of fine, five months additional imprisonment, seven years rigorous imprisonment under Section 366 I.P.C. with fine of Rs.10,000/-, in default of payment of fine, ten months additional rigorous imprisonment and ten years rigorous imprisonment under Section 376 I.P.C. with fine of Rs.10,000/-, in default of payment of fine, ten months additional rigorous imprisonment. All the sentences have been ordered to run concurrently.

3. Since the appellant was detained in jail during the trial, therefore, he preferred this appeal from jail after his conviction.

4. The first information report of the incident was lodged against the appellant and one Mohit Jat. Charge sheet was also submitted by the police under Sections 363, 366, 376 I.P.C. against both of them. Since co-accused Mohit Jat was a delinquent juvenile, his case was separated for trial by Juvenile Justice Board. The trial proceeded against the present appellant in which he was convicted and sentenced as stated above.

5. Facts of the prosecution case as emerged from the first information report and disclosed by the fact witnesses during the trial are that the appellant Ram Singh @ Dharmbir Singh @ Balyogi Ji Siddh Baba (hereinafter referred to as Baba) and his disciple co-accused Mohit son of Kushal Pal Singh came to the village of Khalua of the first informant Rameshwar Singh nine days prior to the incident of the alleged rape and duo lived in the village near about nine days at the agriculture plot of the first informant which was at a slight distance from the house of the first informant PW-1.

6. They performed Devi Jagaran i.e. the act of awakening Goddess Durga during days of Navaratras including Kirtan and Hawan in the village. Duo used to reside at the agriculture plot of the first informant. Sometimes they were served food by the victim girl Km. Anju aged about 13 years and sometimes by her mother at the agriculture plot. Duo used to come to the house of the first informant for taking meals sometimes where they were served food by the victim girl PW-2. Since cattle including buffaloes remained at the said field, family of the first informant including victim girl used to visit field where Baba and Chela were staying. Baba used to treat patients for different ailments who came to Baba for treatment at the same field between 9:00 to 11:00 a.m. After disposal of the work of treatment of patients, Baba used to perform Kirtan and several persons were associated with the same. Both the accused persons left the village of the first informant two days prior to the incident.

7. The victim Km. Anju aged about 13 years, daughter of the first informant Rameshwar went to see some fair of Devi Maa in the village Itaura along with her mother, brother and neighbouring girls on 7.4.2006 around 1:00 p.m. from her house. After paying obeisance to the Goddess at the fair when the victim girl and others were to come back, one Radha sister of the victim girl disassociated or disappeared in the crowd of the fair. Her mother, brother and neighbouring ladies went to trace out Km. Radha leaving the victim, her younger sister Km. Gayatri and brother Manoj at one place in the fair.

8. When the victim girl, her sister Km. Gayatri and brother Manoj were waiting for mother and missing girl, the accused Mohit came there and told the victim girl to go with him on the pretext of introducing her to his mother and sister who also came to see the fair. At the first instance, the victim girl refused to go with him referring that she would go only after arrival of her mother. The victim girl was enticed away by the co-accused Mohit who succeeded in taking her to the nearby parked Maruti car in which Baba was already sitting. The victim girl ultimately sat inside the car. When the victim girl expressed her desire for drinking water, she was given a bottle of water by the co-accused Mohit. The girl after drinking water became unconscious. When the victim girl regained consciousness, she found herself near bank of river Ganga in some Ashram where both accused persons Baba and Mohit were present. The girl is alleged to have been raped by the duo at Ashram after giving life threat to her. The victim girl was taken by duo to Delhi by train where she was also allegedly raped during two days' stay at Delhi. The co-accused Mohit left Delhi after two days whereas the victim girl was taken in the vehicle on the pretext of leaving her to her parents' house by Baba but Baba took her in the vehicle to his own village Batpura and he detained her there in some room on 13.4.2006. The police on 13.4.2006 reached the house of Baba and took the victim girl from the house of Baba. Thereafter the victim girl was medically examined and her statement was got recorded before the Magistrate under Section 164 Cr.P.C. Ext. Ka-2 on 18.4.2006.

9. The first information report of the incident was lodged on 12.4.2006 at 1:05 p.m. after five days of the occurrence by her father Rameshwar PW-1 by giving a written report Ext. Ka-1 which he got scribed by Bachchu Singh who was resident of his village against both the accused persons under Sections 363, 366 I.P.C. Chik FIR Ext. Ka-4 was prepared by the Constable Clerk Balvir Singh PW-4 who made entry thereof in G.D. Ext. Ka-5. The investigation of the case was given to Sub Inspector K. Prasad Singh PW-6 who recorded statements of the witnesses and on 12.4.2006 inspected the scene of the occurrence at the pointing out of the witness Harvilas and prepared map of the incident Ext. Ka-7.

10. K. Prasad Singh, the Investigating Officer PW-6 in search of the wanted criminals reached Mathura on 13.4.2006 before sun rises along with other constables where he was informed through mobile set by the first informant that both the accused persons Baba and Mohit and the victim girl were present at the house of Baba in the village Batpura. The police reached house of Baba where both the accused persons and victim girl were recovered on 13.4.2006 at 9:30 a.m. Trio were taken to the Police Station where they reached about 12:30 p.m. and entry of their arrival at the Police Station was made vide G.D. Ext. Ka-11. On the same day, the victim girl was interrogated in the presence of her father and on the basis of her statement, offence under Section 376 I.P.C. was also added. The victim girl was medically examined on 13.4.2006 at Government Hospital and thereafter her statement under Section 164 Cr.P.C. was recorded by the Magistrate. After statement of the victim girl under Section 164 Cr.P.C., she was given in the custody of her father on 18.4.2006 vide Supurdaginama Ext. Ka-9. The Investigating Officer after completion of the investigation submitted charge sheet against the accused persons Ext. Ka-8.

11. It emerges from the cross examination of PW-6 that he did not mention mobile number either in the case diary or in his own diary and he could not tell mobile number from which he received information from the first informant on 13.4.2006. It is further evident from testimony of PW-6 that the police arrested accused-appellant Baba from his house in village Batpura on 13.4.2006 and no public witness was associated with the police at the time of his arrest, even memo of arrest of the accused persons with the victim girl was not prepared by the Investigating Officer. The car which was used for transportation of the victim girl by both the accused persons to the village of the accused-appellant Baba was not found in the village Batpura, Police Station Malpura, District Hathras (Mahamaya Nagar).

12. It is evident from evidence of the Investigating Officer PW-6 that clothes worn by the victim girl had blood spots but clothes were not taken by the Investigating Officer in his possession. Since the victim girl had no spare clothes to wear, the victim girl was brought along with accused persons to the Police Station Malpura, District Agra in the same clothes. The house of the victim girl was around six kilometers away from the Police Station but the Investigating Officer did not ask her father to bring her clothes for changing the same so as to seize the blood stained clothes of the victim girl.

13. The medical examination of both the accused persons, according to the Investigating Officer, was got done but their medical reports have neither been made available on record nor the same were copied by the Investigating Officer in the case diary. The Investigating Officer came to know about transportation of the victim girl by both the accused persons to Delhi but the places where the victim was kept by them at Delhi, could not be traced. The Investigating Officer deposed that the victim girl told him during interrogation that one child in the fair disappeared but she did not tell the name of the child.

14. The victim girl was medically examined by Dr. Neena Gupta, PW-5 on 13.4.2006 who prepared her medical examination report Ext.6. The same is reproduced below.

"Teeth 7+6/ 7+6, secondary sex characters developed, pubic hair and axillary hair light.

No mark of injury on body.

On the internal examination, no mark of injury on private part. Hymen torn old tear present. Vaginal orifice admit 2 finger easily. Vaginal smear slide taken for histo-pathology.

15. Dr. R.K. Gupta, PW-3 Senior Consultant proving vaginal smear Ext. Ka-3 deposed that no spermatozoa was found on the slide. Dr. R.K. Gupta clearly stated in his evidence at the trial that he cannot say whether the victim girl was raped or not and if spermatozoa was found then it can be said that there was sexual intercourse with the victim.

16. Dr. Shri Ram PW-7 the then Chief Medical Officer, Agra by his evidence proved the report of Km. Anju Ext. Ka-10 by which radiological age was determined. In the x-ray report, all epiphysis at elbow were fused, epiphysis of lower end of radius ulna were not fused. Illiac crest was also not fused. Breasts were developed. On all these observations, the girl was found to be of about 15 years of age. The doctor clearly suggested that margin of two years on either side in the age assessed by radiological examination is possible. On this basis, the doctor stated that the girl was below 17 years of age.

17. The accused appellant was charged on 1.3.2007 under Sections 363, 366, 376 I.P.C. to which he pleaded not guilty and claimed to be tried.

18. The prosecution, in order to prove charges levelled against the appellants, examined Rameshwar first informant/ father of the victim girl PW-1 and the victim girl Km. Anju PW-2 as fact witnesses at the trial. Dr. R.K. Gupta PW-3 was examined to prove vaginal smear report Ext. Ka-3 whereas Dr. Neena Gupta PW-5 proved medical report of the victim girl Ext. Ka-6. Dr. Shri Ram PW-7 C.M.O. proved age determination report of the victim girl, Ext. Ka-10. The prosecution in formal evidence also examined Constable clerk Balvir Singh PW-4 to prove Chik FIR and G.D. and Sub Inspector K. Prasad Singh PW-6 was examined to prove evidence recorded during investigation, who recovered the victim girl from company of both the accused persons during investigation and submitted charge sheet Ext. Ka-8 against the accused persons.

19. Now a look at the eyewitness account is necessary to decide fate of the appellant.

20. As hereinbefore mentioned Rameshwar first informant, father of the victim girl PW-1 and the victim girl PW-2 were examined at the trial as fact witnesses. According to the evidence of Rameshwar PW-1, his daughter victim girl aged about 13 years went to see the fair of Devi Maa along with other children on the day of the incident around 1:00 p.m. at Itaura. Since the victim girl did not come back, therefore, hectic search was made for her. When PW-1 was tracing his daughter victim girl, he was informed by Satya Dev and Harvilash on 12.4.2006 that the appellant Baba and his Chela Mohit forcibly had taken the victim girl in some Maruti car. PW-1 deposed that the accused persons had enticed away his daughter and both the accused persons had performed Devi Jagaran during Navratras in the village prior to this incident and took meals at his house. PW-1 lodged the first information report of the incident at Police Station Malpura on the same day. Both these witnesses came to the house of PW-1 and informed him that they had seen the accused persons and the victim girl going in Maruti car.

21. The written report of the incident was got prepared by Rameshwar PW-1 through one Bachchu Singh who was resident of his village which the witness proved at Ext. Ka-1 identifying his signature thereon. When the victim girl met PW-1, she told that both the accused persons Baba and Mohit raped her. During cross examination, PW-1 deposed that he lodged the first information report of missing of his daughter victim girl after four or five days stating that his daughter went to see the fair along with little children aged about 6-8 years. The witness could not tell date, month and year of the birth of his daughter and stated that his daughter was educated up to 2-3 Class in Chaudhary Charan Singh School which was situated in his village.

22. Rameshwar PW-1 further deposed that his daughter was recovered after 7-8 days from village Batpura. The witness, prior to the recovery of the girl visited house of Baba at two times, firstly he went alone and secondly he went with the police. The witness further deposed that when Baba reached his village Batpura, the villagers immediately informed the police that Baba was present in the village and the witness with the policemen reached the village of Baba on 13.4.2006. PW-1 on receiving some clue about presence of his daughter at the house of the accused Baba reached there without police. Maruti car which was used in transporting the victim girl to Baba's house was seen by the police in the village of Baba but the police did not take that vehicle in possession.

23. Rameshwar PW-1 further deposed that Baba and his Chela Mohit had performed Kirtan and Jagran of Mata in the village for several days . After that programme, they used to take meals at the house of the witness during five to six days in the village. PW-1 in his evidence at the trial candidly admitted age of Baba to be around 60-70 years. The witness further clarified that his daughter was recovered after 7-8 days of the incident from village Batpura in the presence of the witness Raj Kumar who was resident of the same village by a team of four-five policemen. PW-1 Rameshwar and Raj Kumar went to the village of Baba on motorcycle and came back in the police Jeep after recovery of the victim girl at 11:00 or 12:00 O'clock in the day. The witness clearly admitted that no memo of recovery of the victim girl from house of Baba was prepared by the police in the village but some papers in this regard were written at Police Station Malpura after all of them reached Police Station Malpura along with victim girl in the morning. Papers which were prepared at the Police Station after arrival of the victim girl and PW-1 were got signed by PW-1 but the witness could not tell contents thereof. According to the evidence of PW-1, his daughter was recovered at about 11 or 12 O' clock.

24. Rameshwar PW-1further deposed that information in respect of missing of his daughter (the victim girl) had spread in the village and he gave information at the Police Station after five days and lodged the first information report with delay of five days. The witness made it clear in the cross examination that he came to know the name of village of Baba only after recovery of his daughter. The witness further deposed that at the time of arrest of Baba at his house and recovery of the girl, villagers of the village of Baba did not come. The witness further clarified that the policemen, before arresting Baba from his house, had already arrested Mohit from Ghaziabad and the information about arrest of Mohit from Ghaziabad reached village of Baba next day. The witness was taken by the police to Ghaziabad. When Mohit disclosed about the incident then the information reached the village of Baba. It was further informed that the policemen arrested Baba from his house in the presence of Rameshwar PW-1 and his neighbour Raj Kumar. According to testimony of Rameshwar PW-1, Baba and Chela Mohit, nine days prior to the incident came to the village of PW-1 and performed Kirtan along with Pooja during Navaratras. Baba and Chela Mohit were served food by the villagers on day-to-day basis. The witness also served meals to Baba and his Chela on his turn.

25. It appears from evidence of Rameshwar PW-1 that the witness and his family members including the victim girl used to serve meals to the Baba and his Chela Mohit. Mohit used to live with Baba and take breakfast and meals with Baba. The car of the Baba was seen by two witnesses Harvilash and Satyadev in the fair. According to evidence of PW-1, when Baba was arrested in the village, his car was also there. The witness could not tell registration number of that car, which was not taken in possession by the police. The police left the car free at the house of Baba. PW-1 clearly deposed at the last page of his evidence recorded at the trial that he was told by his daughter victim girl that she was raped by the accused Mohit after threatening her and the same was narrated by PW-1 at the Police Station and also to the Investigating Officer. After statement of PW-1 was recorded by Investigating Officer, the victim girl was sent for medical examination by the police. PW-1 was suggested by the defence side that the accused Baba had not enticed away or kidnapped the victim girl and had also not raped her. The accused Baba was falsely implicated at the instance of his Chela Mohit. The witness was also suggested by the defence that since Mohit had developed bad habits, he was turned away by Baba. All these defence suggestions were denied by PW-1.

26. The victim girl as PW-2 was examined at the trial by the prosecution. According to her evidence, on the day of the incident, the victim girl went to see the fair of Devi Maa at Itaura along with her mother, brother and many neighbouring girls around noon. When all the them were to return to their village, one Km. Radha, sister of the victim girl was found missing and then mother, brother and neighbouring ladies went to trace Km. Radha in the fair leaving the victim girl, her younger sister Gayatri and brother Manoj at one place in the fair. The accused Mohit, seeing the victim girl in the fair came to her and persuaded her to go with him as he wanted to introduce her with his mother and sister saying that his mother and sister also came in the fair. The co-accused Mohit took the victim girl to the parked vehicle in which the accused Baba was also sitting and the victim girl was made to sit in that vehicle. When the victim girl felt thirsty, it was the co-accused Mohit who took one bottle of water from inside the car and gave it to her for drinking. As a result of drinking water, the victim girl became unconscious and when she regained consciousness, she found herself in some Ashram situated on the bank of river Ganga where the co-accused Mohit and his Guru Baba were present.

27. The victim girl PW-2 further deposed that at the Ashram, she was raped by Baba and his Chela Mohit threatening to beat her. Thereafter they took the victim girl to Delhi by some train and she was allegedly raped by them during two days' stay at Delhi. After staying two days at Delhi, the co-accused Mohit ran away from that place at Delhi and Baba forcibly made her sit in the car assuring her to take her to her father's house but Baba took her to his own house and detained her there. The day Baba took her in his village and detained in the room, the police reached there and took the victim girl away from village of Baba. The victim girl proved her statement recorded under Section 164 Cr.P.C. as Ext. Ka-2 admitting her thumb impression thereon. The victim girl PW-2 also deposed that nine days' prior to the incident, the accused Baba along with Chela Mohit came to her village and stayed there during ceremony of Navratra and both of them left her village one day prior to the incident.

28. The victim girl PW-2 was cross examined at length by learned counsel for the accused. It emerges from cross examination that both the accused persons stayed in the village of the victim girl for nine days at agriculture plot of her father which was a distance of five to six fields from the house of the victim girl and Baba performed work of worship and paid obeisance to the Goddess Mata and also performed Kirtan in the village. The victim girl sometimes used to go to the field where both the accused persons were staying and served meals and milk etc. to both accused persons Baba and Mohit. They were served food etc. sometimes by her mother and the accused persons used to come to her house for taking meals etc. The field where the accused persons Baba and Mohit were staying was also visited by the girl and her family members including her parents as buffaloes and other cattle were kept there. Several patients also used to visit Baba at the field for treatment between 9:00 to 11:00 in the morning and they were treated by Baba and in the evening, Baba used to perform Kirtan in which villagers used to participate.

29. The victim girl PW-2 used to ask for food and milk etc. from the accused persons and when they desired for the same, she served the same there and went back to her house. According to evidence of the victim girl, she was firstly taken by both the accused persons from the fair to the bank of river Ganga and then to Delhi. The victim girl was cross examined about arrest of the co-accused Mohit asking whether he was arrested by the police from Delhi or Ghaziabad, she showed lack of knowledge. She could not tell age of Mohit even tentatively. The victim girl travelled with the accused persons in the train to Delhi from Police Station Malpura, District Agra but she could not tell railway station from where she was taken in the train and also railway station where she was alighted from train. She was taken in the train around noon and reached Delhi by train around the sunset.

30. According to the evidence of the victim girl PW-2, there were many passengers in the train but she did not raise any cries or alarm, or did not make any complaint to the passengers of the train about behaviour and conduct of the accused persons. The victim girl at page no.5 of her evidence clearly deposed that when she was travelling with the accused persons in the train from Agra to Delhi, she had full knowledge that she was being enticed away by the accused persons and her life was in danger but she did not raise any cry. The reason for this omission, according to her, was that she was threatened by the accused persons that they would not spare her family members in case she raised cry. She further clearly deposed that when she was taken by Baba at his house, she was arrested by the police in the village from the house of Baba on the same day. The house of Baba in the village was surrounded by other houses but she could not raise cries as she was confined in some room and her mouth was gagged. She did not tell the fact of gagging her mouth by Baba to the Investigating Officer.

31. According to evidence of the victim girl PW-2, she was brought by the police in the night at the Police Station and her statement under Section 164 Cr.P.C. was recorded by the Magistrate on the next day. She had given an important piece of evidence at end of page no.5 of her evidence recorded at the trial that car in which she was taken by the accused persons was of white colour. The car was driven by Baba and both the accused persons were sitting in the front seat of the car whereas she, at that time, was sitting at the back seat of the car. According to her evidence, after this incident she married to someone else and when she got married, her age was 13-14 years. The witness clearly denied defence suggestion that both the accused persons Baba and Mohit were arrested at the time of her recovery at the same place. She did not tell the Investigating Officer that all the three were arrested at the same place. The fact of disappearance of Km. Radha was not told to the Investigating Officer in her statement recorded under Section 161 Cr.P.C. According to evidence of the victim girl PW-2, at the time when she was enticed away by the accused Mohit from the fair, she was accompanied with her younger sister Gayatri and brother Manoj. The victim girl PW-2 was suggested by defence that she had love affairs with the accused Mohit which she denied.

32. A close scrutiny and analysis of the evidence of the victim girl PW-2 makes it evident that on the day of the incident at 1:00 p.m., she along with her mother, sisters Km. Radha, Gayatri, brother Manoj and neighbouring girls went to see the fair of Devi Maa at Itaura and thereafter all of them paid obeisance touching feet of Devi Maa. Km. Radha suddenly disappeared from their company and the victim girl PW-2, Km. Gayatri and Manoj were aksed to stay at one place and others went to trace out missing girl Km. Radha. It is not clear from evidence on record when the mother of the girl met Km. Gayatri and Manoj after enticing away or kidnapping of the victim girl in the fair and if the mother met them, she might have been informed by the children about the fact that it was Mohit who had taken the victim girl in the fair on the pretext of introducing her to his mother and sister who were also present in the fair. If the mother of the victim girl and others accompanying the mother were informed by Km. Gayatri and Manoj then there was no reason for lodging the first information report after five days of the incident of the said kidnapping.

33. The first informant Rameshwar PW-1,who is father of the victim girl lodged the first information report of the incident on 12.4.2006 only after getting information of his daughter victim girl having been taken away by the accused persons Baba and Mohit through the witnesses Harvilash and Satyadev of his own village. If the victim girl was really enticed away by the accused Mohit on the pretext of introducing her to his mother and sister then these two children Km. Gayatri and Manoj would have certainly told the first informant Rameshwar PW-1 and his wife either in the fair itself or on coming to the village. It indicates that there was no certain information with the first informant about the so-called kidnapping or enticing away of the victim girl by the accused persons. Hence he spent four days in tracing out the victim girl and when he got information through aforesaid two witnesses Satyadev and Harvilash that his daughter was taken away by the accused persons in Maruti car on the day of the incident then he lodged the first information report.

34. There is one more piece of evidence which shows that the co-accused Mohit was arrested from Ghaziabad by the police and after his arrest at Ghaziabad, information of his arrest reached the village of co-accused Baba. Rameshwar PW-1 was taken by the police to Ghaziabad and during interrogation, co-accused Mohit disclosed about the incident at Ghaziabad and narrated the facts to the police in the presence of PW-1. Thereafter the police along with Rameshwar PW-1 and Raj Kumar reached house of Baba on 13.4.2006 around 9:30 a.m. where the victim girl is alleged to have been recovered. When the victim girl was really recovered by the police from the house of Baba, no recovery memo of the girl and no memo of the arrest of the accused Baba were prepared by the police in the village.

35. Since I am dealing with the case against the accused-appellant Baba and as stated above, the trial of Mohit was separated on account of juvenility, the propriety demands that evidence should be analyzed only to the extent it relates to the appellant lest it would prejudice the interest of the co-accused Mohit.

36. According to the G.D. entry dated 13.4.2006 at 12:30 O' clock which is Ext. Ka-11 on record, both the accused persons Baba and Mohit along with victim girl were recovered simultaneously on 13.4.2006 at 9:30 a.m. from the house of the accused Baba situated in village Batpura, Police Station Sahpau, District Hathras. After their recovery at 9:30 a.m., all the trio were taken by the police to Police Station Malpura, District Agra where entry in G.D. Ext. Ka-11 was made and proved by the Investigating Officer PW-6.

37. The victim girl PW-2 in her statement clearly denied that she was recovered at the same time when both the accused persons Baba and Mohit were arrested. According to her evidence as PW-2 recorded at the trial, after staying for two days at Delhi with both the accused persons, the accused Mohit went away from Delhi and it was the accused-appellant Baba who took her to his village Batpura though he assured to have taken her to her father's house and detained her in his room just thereafter the police came there and took her from that place. The victim girl nowhere deposed in her evidence at the trial that she was recovered from company of both the accused persons. Moreover, neither memo for recovery of the girl from house of the accused-appellant Baba was prepared by the police nor memo about arrest of the accused persons from the house of the accused-appellant Baba at village Batpura was prepared by the police.

38. According to the G.D. entry Ext. Ka-11, the girl was recovered on 13.4.2006 at 9:30 a.m. from the house of the accused Baba by the police. Contrary to it, there is evidence of the first informant, father of the victim girl who claimed recovery of the girl from house of the Baba and deposed that his daughter victim girl was recovered by the police consisting of four-five policemen at about 11-12 O' clock in the night from house of the accused-appellant Baba in the presence of PW-1 and one Raj Kumar.

39. A close scrutiny and analysis of the evidence adduced by the prosecution does not establish recovery of the victim girl from the house of the accused-appellant Baba as claimed by the police on 13.4.2006 at 9:30 a.m., even arrest of the accused-appellant along with the victim girl from house of the accused-appellant Baba is suspicious and unreliable. There is no clinching or cogent evidence on record to establish that the victim girl was recovered from house of the accused-appellant Baba in the presence of the father of the victim girl and one Raj Kumar who was resident of her village on 13.4.2006 at 9:30 a.m. even arrest of the accused-appellant Baba from his house on 13.4.2006 at 9:30 a.m., is shrouded in mystery.

40. After a careful examination of the evidence of the first informant Rameshwar PW-1 and the victim girl PW-2, it appears that there is a strong possibility of false implication of the accused-appellant in this case of the alleged kidnapping and rape. In the statement of the accused-appellant recorded under Section 313 Cr.P.C. on 27.3.2008 at the trial, the trial Judge clearly mentioned that the estimated age of the accused-appellant was 79-80 years, thus on the date of his conviction, the appellant was about 79-80 years of age. The accused-appellant in the statement recorded under Section 313 Cr.P.C. denied whole prosecution story and stated that he did not commit any such offence. He further narrated that his Chela Mohit and the victim girl were not arrested by the police along with him. The police brought the victim girl and Mohit from some other place. He further stated that he did not know how to drive car and he was not able to have sexual intercourse in such age of 80 years.

41. After a close and careful scrutiny of the evidence of the victim girl PW-2, so far as involvement of the accused-appellant Baba is concerned, her testimony appears to be unnatural, quite improbable, uncreditworthy and unreliable in the facts and circumstances of the case. It is not safe to uphold conviction of the accused-appellant. According to her evidence at the time of the alleged kidnapping, when the accused-appellant Baba was driving Maruti car, his Chela was sitting on the front seat of the car and the victim girl was sitting on the back seat of the car then she kept mum and did not prefer to raise any alarm and did not try to alight from the said car. Apart from it, she travelled with both of them to Delhi by train and stayed for two nights with them at Delhi in some house where there were other houses in the locality but she preferred to keep mum and Mohit after two days' stay at Delhi decamped from there. There is a strong possibility of false implication of the accused-appellant in this case and the same cannot be ruled out. More analysis while deciding the appeal of the accused-appellant would not be expedient in the interest of the justice because case of the co-accused Mohit who has been declared delinquent juvenile is to be considered and decided on merits.

42. Hon'ble Supreme Court in the case of Narender Kumar Vs. State (NCT of Delhi) (2012) 7 SCC 171 held in paragraph no. 20 that it is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.

43. Hon'ble Supreme Court in the case of Narender (supra) further held in paragraph no. 21 that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may lend assurance to her testimony (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P. (2003) 3 SCC 175 : 2003 SCC (Cri) 596 : AIR 2003 SC 818 and Vishnu v. State of Maharashtra (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 : AIR 2006 SC 508.

44. Hon'ble Supreme Court in the case of Narendra (supra) further held that the court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.

45. Hon'ble Supreme Court in the case of Narendra (supra) further held that however, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.

46. Hon'ble Supreme Court in the case of Narendra (supra) also held that the prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.

47. The given facts and circumstances of the present case make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of the circumstances along with other evidence on record, in which the offence is alleged to have been committed, her deposition does not inspire confidence as there are a large number of material contradictions and inconsistencies therein. The prosecution has not disclosed the true genesis of the crime. In such a fact situation, the appellant becomes entitled to the benefit of doubt. The appellant is in jail since the date of the alleged arrest namely 13.4.2006. He remained in jail during trial proceedings. After his conviction vide impugned judgment and order dated 1.5.2008, he is incarcerated in jail. Thus the appellant remains to be incarcerated in jail for more than seven years. It is very unfortunate that the appellant had to remain in jail for the alleged offences for such a long period without any legal evidence.

48. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the accused-appellant had been charged. It appears that the entire prosecution story has been concocted for the reasons best know to the prosecution.

49. In the fact of lack of any other evidence, it is unsafe to uphold the conviction of the accused-appellant. Therefore, the view taken by the trial Judge in convicting the accused-appellant Ram Singh @ Dharmbir Singh @ Balyogi Ji Siddh Baba for the offences punishable under Sections 363, 366, 376 I.P.C. cannot be sustained. Consequently, I set aside the judgment and order dated 1.5.2008 passed by the Additional Sessions Judge, FTC No.2, Agra, in Session Trial No.784 of 2006 and quash the conviction and sentence of the appellants under Sections 363, 366, 376 I.P.C. The accused-appellant Ram Singh @ Dharmbir Singh @ Balyogi Ji Siddh Baba is hereby acquitted of the offences punishable under Sections 363, 366, 376 I.P.C. Bail bonds and sureties of the accused-appellant are discharged. The accused-appellant may be released forthwith from custody if not required in any other case.

50. The instant criminal jail appeal succeeds and is, accordingly, allowed.

51. Let a copy of this judgment be communicated to the court concerned for ensuring strict compliance.

Dt.14.05.2013

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