Surjeet @ Jitte vs State Of U.P.
2013 Latest Caselaw 5389 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                            A.F.R.
 
Court No. - 13                                           Reserved
 

 
Case :- CRIMINAL APPEAL No. - 103 of 2011
 
Appellant :- Surjeet @ Jitte
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amitabh Triphati
 
Counsel for Respondent :- Govt. Advocate
 
                                  
 
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Hon'ble Anurag Kumar,J.

This appeal has been preferred by Surjeet alias Jitte, under Section 374 (2) Cr.P.C. against the judgment and order dated 17.01.2011, passed by the then learned District & Sessions Judge, Raebareli in Session Trial No.589 of 2010, State vs. Surjeet @ Jitte, Crime No.522 of 2010, under Section 376 I.P.C., Police Station-Naseerabad, Raebareli (Present District-C.S.M. Nagar) convicting the appellant under Section 376 I.P.C. to undergo rigorous imprisonment for three years and with fine of Rs.500/-.

The prosecution case in brief is that a written report was given on 19.06.2010 by the complainant, prosecutrix Kiran, against Surjeet @ Jitte, Durga, Anil Kumar and Rajulle of Police Station-Naseerabad, district-Raebareli with the allegation that in the night of 17.06.2010 she went to see Nautanki in her village. In the night of 17/18.06.2010, at about 12.00 night she went to ease herself, all of sudden all the accused persons came there and by closing her mouth committed rape one by one and left her threatening to kill her if she said anything to anybody about the incident. The First Information Report (in short FIR) under Section 376/ 506 of I.P.C. was registered at Crime No.522 of 2010 against Surjeet @ Jitte, Durga, Anil Kumar and Rajulle. The prosecutrix was medically examined. The investigation was started. The cloths of prosecutrix Kiran were taken into possession by the Investigating Officer and Fard was prepared and cloths were sent for chemical analysis. After investigation a charge-sheet was submitted against Surjeet @ Jitte only under Sections 376 and 506 I.P.C. The case was committed to Court of Sessions on 23.09.2010. The learned Sessions Judge, Raebareli framed charges against the accused-appellant Surjeet @ Jitte under Sections 376 and 506 I.P.C.. Accused pleaded not guilty and claimed to be tried.

The prosecution in support of his case examined victim Kiran as PW-1, her mother Sumitra as PW-2 and her father Ram Prasad as PW-3. All the witnesses of fact produced by the prosecution turned hostile and they did not support the prosecution version at all. Genuineness of all other documents were accepted by the defence. The statement under Section 313 Cr.P.C. was recorded, in which appellant denied the allegations.

After hearing arguments of both side, learned Sessions Judge by his impugned order convicted appellant under Section 376 I.P.C., but considering the circumstances that prosecutrix and accused-appellant entered into compromise and after release of accused-appellant they will marry each other, reduced sentence to three years rigorous imprisonment and a fine of Rs.500/- was imposed against the accused-appellant. Aggrieved by the impugned judgment and order the present appeal has been filed.

Heard Sri Amitabh Tripathi, learned counsel for appellant and Sri G.D. Bhatt, learned Additional Government Advocate for the State.

Learned counsel for appellant has submitted that leaned lower court failed to appreciate the evidence and only on the basis of surmises and conjectures convicted the appellant without any evidence against him regarding rape. Prosecution fully failed to prove any case of rape against appellant. Learned Sessions Judge only on the basis that age of prosecutrix is 15 years and as per report of Forensic Science Laboratory human blood and semen was found on the cloths of the prosecutrix, hold appellant guilty of rape inspite of the fact that the prosecutrix and other witnesses did not support the prosecution case and totally denied the allegation of rape against the appellant or any other co-accused-persons. The conclusion of learned trial court that offence of rape was committed by the appellant is totally wrong conclusion because even if as per report of Forensic Science Labotrary human blood and semen was found on the cloths of the prosecutrix, it cannot be said that it was of appellant and appellant has committed rape.

Learned Additional Government Advocate refuted the contention of learned counsel for the appellant and submitted that learned lower court after discussing all the points raised by the appellant, rightly convicted him under Section 376 of I.P.C.

I have given thoughtful considering to the submissions of both sides, the question to be decided in this appeal is that "whether any rape was committed by appellant Surjeet @ Jitte or not". Rape was defined under Section 375 of I.P.C. and punishment is prescribed under Section 376 of the I.P.C.

"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:-

First.- 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."

376. Punishment for rape.--

"(1) Whoever, except in the cases provided for by sub- section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:"............

From reading the above Sections, it is quite clear that it is essential for an offence under Section 376 of I.P.C. that there is a sexual intercourse and whoever has sexual intercourse with a woman is guilty of offence of rape. The essential and main ingredient of rape is intercourse by the accused-appellant. It is well settled proposition of law that prosecution has to prove his case beyond all reasonable doubt and in the present case also prosecution has to prove his case beyond all reasonable doubt in which prosecution totally fails. In the present case, as the informant who is victim and sole witness of occurrence, turned hostile and in her examination-in-chief itself she said that she never wrote any report against Surjeet alias Jitte, Durga, Anil Kumar and Rajulle and they have not committed rape with her.

From the above statement of prosecutrix, it is clear that essential ingredients of offence "sexual intercourse" is totally lacking. Learned trial court wrongly relying on the fact that proxecutrix, PW-1 Kiran, accepted her signature on the written report relied on that document. PW-1 though accepted her signature (Ext.-1 written report), but she specifically stated that what was written in the report, was not read-over to her. The report was written on the advice of a village person and she has no knowledge what was written in the report. Only on the basis of accepting the signature on any paper that document cannot be made basis of conviction especially when witness is an illiterate village lady.

Learned trial court relying on the sixth condition of Section 375 I.P.C. treating the prosecutrix as 15 years old and holding that the consent of the victim of 15 years is of no value, convicted the appellant. Learned trial court wrongly relied on the sixth condition because the essential ingredients of the offence of rape "sexual intercourse" is lacking in the present case. When there is any sexual intercourse then and then only question of consent or no consent arises and when prosecution failed to prove that there is any sexual intercourse by appellant, application of sixth condition of the section does not arise.

Learned trial court also relied upon the evidence of prosecution PW-1 on the basis that evidence of hostile witnesses cannot be discarded in toto.

It is settled legal proposition that once the statement of 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. 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, which may lend assurance to her testimony.

Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence.

In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held:

"The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."

In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858, this Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:

".......It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication........ there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:

"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."

Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated.

Prosecution has to prove its case beyond all reasonable doubt and cannot take support from the weakness of case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. In the present case, as there is no evidence of sexual intercourse by appellant, the conviction of the appellant was totally wrong and the prosecution has not disclosed the genuineness of the crime. In such fact of situation, the appellant becomes entitled for acquittal.

In view of the above, the appeal succeeds and is allowed. The judgment and order dated 17.01.2011, passed by the then District & Sessions Judge, Raebareli, is hereby set aside. The appellant is on bail. He need not surrender. His bail bond stands discharged.

Let a copy of this order as well as record of lower court be sent to the court concerned for compliance forthwith.

Order Date :- September 4th , 2013.

Suresh/