Narendra vs State Of U.P.
2015 Latest Caselaw 5546 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Court No. - 27
 

 
Case :- CRIMINAL APPEAL No. - 3799 of 2009
 
Appellant :- Narendra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Saghir Ahmad,D.K;Kesarwani [A.C],R.P.Singh,V.S. Parmar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. This appeal has been preferred against the judgment and order dated 29.05.2009 passed by Additional Sessions Judge, Court No. 15th, Meerut in S.T. No. 524 of 1997 (State vs. Narendra), under Sections 363, 366, 368, 376 I.P.C, arising out of Case Crime No. 280 of 1996, P.S. Brahmpuri, District Meerut, whereby the trial court found the accused Narendra guilty under Sections 366, 368 and 376(2)(g) I.P.C. and sentenced the appellant for three years imprisonment and Rs. 1000/- as fine under Section 366 I.P.C., for three years imprisonment and Rs. 1000/- as fine under Section 368 I.P.C. and for ten years imprisonment and a fine to the extent of Rs. 3000/- under Section 376(2)(g) I.P.C. with default stipulation. All the sentences were to be run concurrently.

2. Brief facts according to the prosecution case are that the informant was resident of Shivshakti Nagar, Police Station Brahmpuri, Meerut. One Rita was his neighbour who was living beside his house on rent. Rita was friendly to his sister and used to come to his house to meet her. Narendra the accused was also tenant in the house of the informant along with his mother, sister, brother Jitendra and Sanjay was also tenant for the last three months. On 28.08.1996 at about 3 O'clock in the afternoon Rita came to the house of the informant and took his sister namely Shikha @ Gudiya with her to the market on the pretext for bringing some articles. Shikha did not return home. On 04.09.1996, Virendra and Shiv Kumar, resident of the same locality told the informant that on 28.08.1996 at about 05:00 P.M. when he was returning from Delhi and got down at Delhichungi, Meerut, he saw Gudiya with Narendra and Rita with Umesh who were talking to each other. Since 28.08.1996, Narendra, his brother Jitendra and Sanjay have also not returned. Narendra has eloped with Shikha and Umesh has enticed away Rita. When the family members of these boys were contacted, they did not give any reasonable explanation, hence, the first information report was lodged.

3. On the basis of this report Head Constable Omveer Singh PW-5 prepared the chick report and proved it as Exhibit Ka-3. He scribed the G.D. relating to the occurrence and proved it as Exhibits Ka-4 and Ka-5. Investigation of this matter was entrusted to S.I. Azaz Alam Khan PW-6 in whose presence the case was registered and investigation was entrusted to him. He copied the chick report and recorded the statement of Head Constable Omveer Singh, the informant, inspected the place of occurrence and prepared the site plan which were proved as Exhibit Ka-6. He also proved Exhibit Ka-7. He also prepared the site plan of the place from where the victim was recovered and proved it as Exhibit Ka-8. After investigation, he submitted charge sheet against the accused person and proved it as Exhibits Ka-9 and Ka-10.

4. The prosecution examined as many as 7 witnesses. PW-1 is Satish Kumar Gupta who is the informant and who proved the written report as Exhibit Ka-1. PW-2 is victim Shikha @ Gudiya, PW-3 is Shiv Kumar who is said to be the witness who informed that he saw the victim along with the accused. PW-4 is Dr. N.S. Paul who proved the radio logical report as Exhibit Ka-2. PW-5 is Head Constable Omveer Singh and PW-6 is I.O. Azaz Alam Khan whose evidence has earlier been discussed. PW-7 is Dr. Sangeeta Gupta who internally examined the victim and proved the medical report as Exhibit Ka-11 and the supplementary report as Exhibit Ka-12.

5. After examining seven witnesses the prosecution closed its evidence.

6. The statement of the accused was recorded under Section 313 Cr.P.C. n which he denied the allegations and stated the he had been falsely implicated. He did not adduce any defence evidence.

7. Learned lower court after perusing the material on record and hearing the counsel for the parties returned the finding of guilt.

8. Feeling aggrieved, the accused Narendra has come up in this present appeal.

9. I have heard Sri D. K. Kesarwani, Amicus Curiae for the appellant and learned A.G.A.

10. The following points have been raised during the course of argument by the counsel for the parties :-

That the first information report is delayed and there are chances of false implication of the appellant.

The victim is major. She is consenting party. Her statement is unworthy of credit and unreliable. There is no corroboration to her statement, hence the conviction is bad in the eye of law.

On the other hand learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed.

(i) That the first information report is delayed and there are chances of false implication of the appellant :-

As per the first information report the occurrence took place on 28.08.1996 at 03:00 P.M. and the report of the alleged incident was lodged on 04.09.1996 at 13:15 hours. The distance of the police station from the place of occurrence is 2 Kms. As far as reasons for the delay is concerned, in the first information report it has been mentioned that the victim did not return back but on 04.09.1996, Shiv Kumar and Virendra told the informant that they had seen the victim along with two boys and a girl standing at Delhichungi, Meerut talking to each other. PW-1 the informant had stated that when the girl was missing, he tried to trace her, but she could not be traced. During trace, Shiv Kumar and Virendra told him that they had seen the girl with Naresh, Umesh and one another girl on 28.08.1996 at Delhichungi, Meerut at about 05:00 P.M. This has been reiterated by PW-3 Shiv Kumar who has stated that on 28.08.1996 when he was at Delhichungi, Meerut, he saw the victim, the accused, a boy and a girl standing there. He told about this occurrence to the informant on 04.09.1996 when the informant told him that the victim was missing. No doubt, in such cases where the reputation of the family is at stake, the family members are a bit hesitant in lodging the report and they try to trace out the girl, instead of informing the police. Thus, there is a very reasonable and plausible explanation to explain the delay which is not fatal for the prosecution.

(ii) The victim is major. She is consenting party. Her statement is unworthy of credit and unreliable. There is no corroboration to her statement, hence the conviction is bad in the eye of law :-

In the present case only evidence about rape is the statement of the victim Shikha herself who is PW-2.

Generally, cases of rape, the court does not ponder to find corroboration if 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 no 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 vaule, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu vs. State of Maharashtra, AIR 2006 SC 508.

The 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 as has been held in Suresh N. Bhusare & Ors. vs. State of Maharashtra, (1999) 1 SCC 220.

PW-1 is the informant who is not a witness of fact. His evidence is hearsay, inasmuch as, neither he saw the victim going nor he saw the incident. PW-1 Satish Kumar brother of the victim has stated that his sister was recovered by the police 20 to 25 days after the incident. When he was informed, he went to the court. Later on the statement of the victim was recorded under Section 164 Cr.P.C., then the victim was handed over to him. PW-2 is the victim who has stated that after the occurrence on 23.09.1996, the mother and brother of the accused Narendra brought her to the court from where she was recovered. It appears that this witness forgot what she has stated in the examination-in-chief, inasmuch as, in cross-examination, she has stated that when she entered the court, she was apprehended by the police, whereas, perusal of the statement of the victim under Section 164 Cr.P.C. reveals that the mother and brother of the accused brought her to court. She was made to sit at one place. Suddenly, her brother came, at which Sanjay and Jitendra fled away. The evidence of the victim under Section 164 Cr.P.C. only has corroborative value. This part of the statement was put to her which was admitted by her but trying to explain, she has stated that in the court her brother caught her and handed her over to the police, whereas according to PW-1, the brother of the victim, she was caught by the police and then he was informed about her being apprehended.

As far as the age of the victim is concerned, the first information report is wanting about the age of the victim. PW-1 has stated that at the time of occurrence, the age of his sister was 17 years. The age of the victim has to be determined in accordance with Rule 12 of the Juvenile Justice (Care & Protection of Children) Act which runs as follows:-

"12. Procedure to be followed in determination of Age.- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

Thus, since no academic record or other documentary evidence is admitted, hence, as per the Rules, the radio logical age of the victim has to be taken into account. The radio logical age of the victim has been proved by PW-4 Dr. N.S. Paul who has proved the X-ray Report and opined that the radio logical age of the victim as per X-ray was above 21 years. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. and in the statement also she described her age to be 19 years. Thus, her radio logical age and her age according to her own-self was above 18 at the time of the incident, thus, she was a major. Now it has to be seen, whether the testimony of PW-2 Shikha @ Gudiya was worthy of credence or not.

Counsel for the appellant has emphasized that the victim was a lady who had no scruples in giving incorrect statements before court. She was a lady of easy virtues.

Per contra learned A.G.A. has submitted that a lady, howsoever dissolute she may be, would not ordinarily consent to insulting, humiliating and repulsive act of sexual intercourse on her by a number of persons, as if she were a chattel for public use. The law recognises that a woman even of easy virtue, or even a whore for that matter, has personal dignity and honour. She cannot be violated, by anyone.

A presumption has been enacted in Section 114A of the Evidence Act which says that in a case inter alia of gang rape, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she sates in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Hence the legal position is that if the fact of sexual intercourse would have to be believed and it would not help the defence merely to show that the woman was of easy virtue. It is true that the presumption about want of consent is not conclusive. Evidence may still be given to disprove it. But in the absence of any evidence of disproof, there is no option with the Court but to raise a presumption about non-consent if circumstances for raising the presumption under Section 114A exist. It must however be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals. It may be difficult to believe a woman of immoral character if she says that some persons had sexual intercourse with her unless there existed satisfactory proof in support of the story of sexual intercourse.

Shikha PW-2 has stated that on 28.08.1996, Rita came and requested her to accompany her to the market and she went with Rita. On the way Narendra, Umesh and their friend were standing with a car. When they reached near the accused persons Narendra and Umesh pointed a country made pistol and pulled the victim in the car. The car proceeded towards Etah. After they reached Etah, the car was stopped and all proceeded to enter a lonely room constructed on the field, where the victim was locked. Narendra, Umesh and their friends raped her against her wishes. She was detained in this room till 12.09.1996. On 12.09.1996, she was sent to the mother and brother of Narendra, where she was raped by Sanjay brother of Narendra and finally she was brought to the court on 23.09.1996 from where she was recovered. The cross-examination on a witness is conducted to test the veracity and if the witness successfully undergoes the test of cross-examination, his version is believed. In cross-examination, this witness has stated that the accused had stopped the car at Delhichungi, Meerut to purchase cigarette. The car was being driven by the companion of the accused appellant. According to this witness, she was sitting in the car, where as, PW-3 Shiv Kumar has stated that on 28.08.1996, he saw the victim along with two boys and a girl at Delhichungi, Meerut at 05:00 P.M., thus, it is clear that either Shiv Kumar PW-3 is deposing falsely before the court or the victim PW-2 Shikha herself is not telling the true facts. Further this witness has stated that she give the statement before the Magistrate under Section 164 Cr.P.C. She has stated that 4 people had also raped her. Here, she has named Narendra, Umesh and their companions to have raped her till 12.09.1996. In her statement, she has also stated that one Namepal also raped her. She came to know of the name of Namepal on the accused telling his name. Contradicting herself in the statement given before the court, she has stated that three people raped her on that day. She has stated that Narendra was holding a country made pistol which was pointed at her and then he raped her after that Umesh and his friend also raped her. She built up a story that later on Umesh, Narendra and their friend also raped Rita but this is not the case of the prosecution. Further in cross-examination, she has said that from 12.09.1996 till 23.09.1996, she remained with the brother and mother of the accused Narendra in one house. She came to the court to give her statement by car. Thus, she was with the accused for a long period from 28.08.1996 to 23.09.1996 but she did not raise any alarm. Although, she has stated that she left with the brother and mother of accused Narendra but there is no evidence to prove that she could not raise any alarm during the period from 12.09.1996 to 23.09.1996 too when she was apprehended. Thus, the entire oral evidence of the prosecutrix Shikha who is PW-2 is unreliable and improbable.

Dr. Sangeet Gupta did not find any mark of external or internal injury on the body of the victim. I.O. PW-6 Azaz Alam Khan in cross-examination has stated that Shikha was recovered on 30.09.1996, whereas, according to Shikha PW-2 and her brother Satish PW-1, she was recovered on 23.09.1996. PW-6 Azaz Alam Khan has stated that Shikha was recovered on the information of the informer. He has denied that Shikha was recovered from the court premises. The I.O. has further stated that her statement under Section 164 Cr.P.C. was recorded, the day, she was recovered. Thus, the statement of the prosecution witnesses recorded before the trial court certainly leaves room for doubt and it appears that witnesses have been tutored.

No doubt, if the evidence of the prosecutrix would have been convincing and reliable, it is not necessary that any corroboration was required. The manner in which the victim had openly moved with the accused persons though she pleaded involuntariness therein, there are strong circumstances which are mutilating against the veracity of the victim and it is very difficult to assume that all her movements were without her consent. The prosecution story gets further fatal infirmity when Shiv Kumar says that he saw the victim standing at Delhichungi, Meerut, whereas according to the victim she never got out from the car at Delhichungi, Meerut.

The statement of victim, therefore, required to be assessed by considering the entirety of evidence that may be come before the Court. The manner in which the victim openly moved around, clearly impeaches the testimony of the prosecutrix that she did not consent for the intercourse. The presumption raised in Section 114A of the Evidence Act, does not preclude the Court from assessing the entirety of the evidence that comes before the Court. Be what as it may, the presumption raised under Section 114A of the Evidence Act is laying down rigid yardsticks that no other conclusion is possible and that the accused have by evidence other than one which has come before the Court through the presumption to prove to the contrary, it would lead to the conclusion that never intended by the said Section.

In the light of the above discussion, I have no hesitation to reach to a conclusion that even by taking assistance of Section 114A of the Evidence Act, the prosecution has filed to prove the act of sexual intercourse attributed to the accused person without the consent of the prosecutrix. Hence, I conclude that the victim is major. She is consenting party. Her statement is unworthy of credit and unreliable. There is no corroboration to her statement.

11. Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused person and charges levelled against him have not been proved beyond reasonable doubt, as such, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgment of conviction and sentence dated 29.05.2009 passed by Additional Sessions Judge, Court No. 15th, Meerut in S.T. No. 524 of 1997 (State vs. Narendra), under Sections 363, 366, 368, 376 I.P.C, arising out of Case Crime No. 280 of 1996, P.S. Brahmpuri, District Meerut, is hereby set aside.

12. Accordingly the appeal is allowed.

13. The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

14. Let the copy of this judgment be sent to C.J.M. concerned for compliance.

Order Date :- 18.12.2015

sailesh