Sanjeev @ Sanju vs State Of U.P.
2016 Latest Caselaw 4791 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- CRIMINAL APPEAL No. - 1873 of 2016
 

 
Appellant :- Sanjeev @ Sanju
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jitendra Rana
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

This criminal appeal has been directed against the judgment and order dated 24.12.2015 passed by the Additional Sessions Judge/ F.T.C., Baghpat, in S.T. No. 443 of 2012, State Vs. Sanjeev @ Sanju, u/s 376, 506 I.P.C., P.S. Baroth, District Baghpat, arising out of Case Crime No. 513 of 2012, whereby the learned trial court has convicted the appellant under section 376 I.P.C. and has sentenced him to rigorous imprisonment for seven years with fine of Rs. 5000/- and in default of payment of such fine, to undergo six months additional imprisonment. By the impugned order the appellant has also been convicted under section 506 I.P.C. for which he has been awarded R.I. for one year. Both the aforesaid sentences were directed to run concurrently.

Heard learned counsel for the appellant and learned AGA. Perused the record.

As per the prosecution case, the prosecutrix lodged an FIR against the applicant alleging that when her husband Baburam had gone to Gauhati to attend the Terahvi (a ritual performed on 13th day from the death of a person) of her Jeth, the accused-appellant, who is the nephew of her husband (Bhanja) and is a resident of the same locality called her at 6.00 A.M. in the morning for milking his cow. It is alleged that when she went to his house for milking his cow, the appellant took her inside his bedroom and committed rape on her. The learned trial judge found the prosecution case reliable and convicted the appellant as aforesaid.

The aggrieved appellant, in this appeal, has questioned the legality and correctness of the impugned judgment and order mainly on the following grounds:

1. That the aforesaid prosecution story is totally false and concocted, which is evident from the fact that no injury was found either on external or internal part of the body of the prosecutrix and no spermatozoa was found after chemical examination, which totally belies the prosecution story.

2. There are several contradictions, infirmities and omissions in the testimony of the prosecutrix, who is the solitary witness of fact, produced by the prosecution in this case. But the learned trial court without taking into consideration the material contradictions occurred in her statement and ignoring the medical report, has passed the impugned judgment on the basis of mere conjectures and surmises.

3. The husband of the prosecutrix, Baburam, has been produced by the defence as DW2, who has categorically stated that the appellant had lent him money for meeting out his medical expenses, as he had met with an accident and had to incur an expenditure of Rs. 60-70 thousand on his surgery. The appellant was demanding his money back, which he, (Baburam), was unable to pay, hence his wife, the prosecutrix, on the instigation of other people, lodged the FIR. It was only due to the fear of her own conviction for giving false evidence, she did not retract from her statement during the trial. However, the learned trial judge neither considered the explanation put forth by the appellant u/s 313 Cr.P.C. nor the aforesaid evidence of DW1, while convicting the appellant.

Per contra learned AGA has supported the impugned judgment by contending that the learned trial court has rightly convicted the appellant because in case of rape the sole testimony of the prosecutrix can form the basis of conviction and there is no need for any further corroboration.

Considered the rival submissions of both the parties and perused the original record.

The prosecution in this case has produced only six witnesses out of which only PW1, the prosecutrix herself, is the witness of fact. The remaining five witnesses are formal witnesses, PW2 is the doctor and PW3 to PW6 are police personnel including the I.O.

The defence has also produced two witnesses. DW1 is Yashpal Singh and DW2 is Baburam, who is the husband of the prosecutrix.

The prosecutrix during her examination in chief has repeated the FIR version by stating that in June 2012 her Jeth, who was living in Gauhati, had expired. On the date of occurrence her husband had gone to attend the Terahvi of her Jeth. The accused-appellant is her nephew, whose family members had also gone to Gauhati to attend Terahvi ceremony. The occurrence is of the last week of June. In the early morning at about 6 or 6.30 A.M. the appellant called her to milk the cow. She went and milked the cattle. When she was about to return to her home the appellant came and asked her to come inside the house as he had to talk to her on some important issue. When she denied he forcibly took her inside the room holding her hand. Thereafter he pressed her mouth from his hand, put his leg on her breast and pressed her neck. He also and threatened her to kill. Thereafter he committed rape with her. She has further stated that after committing rape, the appellant gave her Rs. One thousand, which she accepted. From the house of the appellant she went to her uncle Mahipal's house and informed about the whole episode. At Mahipal's house she stayed for five minutes and from there she went to police station to lodge the FIR.

During her cross-examination the prosecutrix has stated that she had gone to the police station all alone. She has also stated that when she had gone to lodge the report, she did not take with her, her clothes, which she was wearing at the time of occurrence. When asked as to why she did not raise any alarm, she stated that she had raised alarm from inside the room. However, when she was confronted with her earlier statement recorded u/s 161 Cr.P.C. in which she has stated that she had raised alarm after coming outside the room and hearing her alarm several persons had gathered at the spot, she replied that she had not given any such statement to the I.O. and she cannot assign any reason as to how it was written. She has admitted that she accepted Rs. One thousand, which the appellant gave to her, after committing the rape and those are still lying with her and she did not give those rupees to the I.O. She has also admitted that she did not get her statement u/s 164 Cr.P.C. recorded before the Magistrate. She has stated that her bangles were broken causing injuries on her wrist. She has also stated that the appellant tried to strangulate her by rope causing marks on her neck but the doctor has not found any such injury either on her wrist or neck or even any part of her body. She has admitted the fact that her husband had met with an accident in which his hand had to be amputated and he had to remain admitted in hospital for one month incurring Rs. 60-70 thousand in his treatment.

There is no doubt that in the cases of rape sole testimony of the victim of rape is sufficient to convict the accused but as per settled legal position the said sole testimony should be trustworthy, reliable and must be of sterling quality. In so far as the case in hand is concerned, the statement of the prosecutrix as discussed in the preceeding paragraph, does not appear to be of such sterling quality. Her admissions clearly suggest that either she was a consenting party, who out of her own freewill and in the absence of her husband and the other family members and also in absence of family members of the appellant, had made physical relations with him voluntarily or as per the defence version, she has falsely implicated the appellant so as to avoid the payment of loan to him. The absence of any mark of injury on her external or internal part of the body totally belies the prosecution story. It also appears unbelievable that her uncle Mahipal, to whom she had immediately informed about her rape and from whose house she had gone directly to police station to lodge the FIR, did not accompany her to the police station. The aforesaid Mahipal, could have been the best witness in this case, but the prosecution, for reasons best known to it, has not examined Mahipal as a witness in this case. One more fact, which raises a serious doubt in the prosecution story is that the prosecutrix has stated that when she had gone to lodge the report she did not take the clothes with her, which she was wearing at the time of occurrence, whereas, as per her own narration, after returning from the house of the appellant, she directly went to the house of Mahipal where she stayed for five minutes and then she went to the police station to lodge the FIR. Thus, it is not clear as to when and where she changed her clothes. She has stated that she got the written report scribed by a tea vendor but the said tea vendor has also not been examined by the prosecution.

The story of rape as narrated by the prosecutrix becomes unreliable also, in view of the statement of investigating officer (PW-6 Kunwar Pal Singh), who has stated that he had inspected the spot and he did not find any broken bangle at the place of occurrence. He has also stated that the prosecutrix had never informed him about any such fact that the appellant kept his legs at her breast and pressed her mouth with his hands.

The defence has produced one Yashpal Singh as DW1, who is the neighbour of both i.e. the prosecutrix and the accused-appellant being a resident of the same Awas Vikas Colony, who has stated that the husband of the prosecutrix had to incur heavy expenditure on his medical treatment after his accident and the appellant had lent him a handsome amount for his treatment but Baburam (the husband of prosecutrix) was not returning this loan despite the repeated demands made by the appellant. DW1 has further stated that on 29.6.2012 between 5 to 7 A.M. he was on routine morning walk in the park situated at the front of his house but he did not see the prosecutrix going towards the house of the appellant. He has also stated that the appellant used to milk the cattle and to give them the fodder himself. DW1 has further stated that he did not hear any alarm of the prosecutrix. He has also stated that the entire colony knows that due to dispute of payment of loan, the prosecutrix has lodged the false FIR against the appellant.

The husband of the prosecutrix Baburam has been produced as DW2. He has stated that due to truck accident his right hand had to be amputated and he had to take loan of Rs. 60,000/- from the appellant. When he returned home from the hospital, the appellant started to demand back his money. As his right hand had been amputated, he was unable to earn so he could not return the loan. In June 2012, when he had gone to Gauhati, some people instigated his wife to lodge the FIR against the appellant, who was continuously demanding his money back. DW2 has stated that his wife is an illiterate lady, who, under the influence and instigation of some people of the locality, put her thumb impression on the FIR. Later on, when Sanjeev (appellant) was lodged in jail, the persons, who had instigated his wife, told her that if she would not support the story, mentioned in the FIR, in the court, she would also be lodged in jail. Hence out of fear, his wife has deposed in the court against the appellant. The appellant is his real nephew and is married too.

The learned trial court disbelieved the defence witnesses and relied on the statement of the prsecutrix mainly on the ground that as the FIR has been lodged promptly by the prosecutrix, there was no time for her to concoct a false story. The learned trial court did not find any good ground to disbelieve the prosecution case on the basis of the fact that Mahipal, uncle of the prosecutrix, was not produced.

With regard to absence of injuries on the body of the prosecutrix, the learned trial court expressed its view that the incident has taken place at 6.00 A.M. and the medical examination has been conducted on the same day at 1.45 P.M., hence during this time gap the marks of injuries may fade and vanish.

No opinion has been expressed by the learned trial court with regard to the contradictions and improvements in the statement of the prosecutrix.

There is no doubt that the cases of rape should be dealt by the courts with an iron hand and the conviction of an accused of rape can be based even on the sole testimony of the prosecutrix but the condition is that the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. In so far as the present case is concerned, undoubtedly the solitary evidence of prosecutrix does not fall in that category and it is neither safe nor proper to hold the appellant guilty of rape only on the basis of her sole testimony.

In the case of Krishan Kumar Malik Vs. State Haryana, (2011)7 SCC 130 the Apex court under almost same facts has set aside the conviction and has acquitted the accused. Explaining/ elaborating the meaning of 'sterling witness', Hon'ble Supreme Court in the case of Rai Sandeep Vs. State (NCT of Delhi) (2012) 8 SCC 21 has observed as under:-

"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of prosecution qua the accused. There should be not be any prevarication in the version of such a witness."

Testing the facts of the present case on the touchstone of law as laid down by the Apex Court in the judgments cited above, this court is of the considered view that it was not justifiable for the learned trial court to convict the appellant on solitary statement of prosecutrix, which being full of contradictions, omissions, embellishments and improvements, canot be termed as that of sterling quality.

Therefore, the impugned judgment of the trial court is liable to be set aside and the appellant deserves to be acquitted from the charges leveled against him.

Accordingly, this appeal succeeds and is allowed. The impugned judgment and order of conviction dated 24.12.2015 passed by the trial court is hereby set aside.

It is unfortunate that the appellant, from the first date of his arrest, is languishing in jail because his bail application was rejected by the trial court and this court also, taking into account that the appeal is ripe for final hearing, did not consider his bail. As a result, the appellant has been languishing in jail and has already spent more than four years in jail without any fault. Therefore, it is directed that the appellant shall be released forthwith from jail, if not wanted in any other case.

Let a copy of this judgment be sent to the court concerned for immediate compliance.

Order Date :- 3.8.2016

Pcl