Dharmendra vs State Of U.P.
2016 Latest Caselaw 106 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R
 
Court No. - 27
 
		
 
Case :- CRIMINAL APPEAL No. - 1009 of 2014
 
Appellant :- Dharmendra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- M.S. Chandel,Dilip Kumar
 
Counsel for Respondent :- Govt. Advocate,L.K. Verma
 

 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgement and order dated 28.1.2014 passed by Special Judge S.C./S.T. Act/Additional Sessions Judge in Special Criminal Case No. 91 of 2006 (State Vs. Dharmendra) arising out of Crime No. 80 of 2006, under Section 376 I.P.C. and Section 3(2)(5) S.C./S.T. Act, Police Station-Badausa, District-Banda, whereby the accused was found guilty under Section 376 I.P.C. and was sentenced to 10 years rigorous imprisonment and fine of Rs. 10000/- with default stipulation.

2. As per the prosecution case, report was lodged by Naraina stating that he is the resident of Village-Dimarauvapurva Majra Pauhar. On 31.8.2006, his daughter aged about 20 years went to chop the fodder from her fields, when she was chopping fodder, the accused caught her from behind, he dragged her and raped her against her wishes. The victim raised hue and cry, but nobody came to the spot. The victim came home and narrated the whole incident. The occurrence took place on 31.8.2006 at about 11/12 in the day time, hence F.I.R. was lodged. Rajendra Singh Solanki, S.I. P.W. 3 who was at the relevant time posted at the police station as Head Constable proved the chik report as Exhibit Ka-3. He further scribed the G.D., which was proved as Exhibit Ka-4.

3. The victim was examined by Dr. Anita Sagar, who proved that there were no injuries on the external part of the body. There were no injuries on the overvulva, vagina, lubia majora, miners and clitoris. Hymen was torn and the vagina was admitting two fingers easily. The Doctor found cervical erosion and also found 2-3 cms cervical tear on posterior side, which was stitched by the Doctor. The Doctor proved the medical report as Exhibit Ka-5 and Pathological report as Exhibit Ka-6 and supplementary report as Exhibit Ka-5.

4. Investigation was entrusted to P.W. 5 Tejpal Singh, retired Sub-Inspector, who investigated the matter. He copied the chik report and G.D. in the C.D. He recorded the statement of P.W. 3 Rajendra Singh Solanki, informant Naraina and the victim. After that the spot was inspected and site plan was prepared, which was proved by this witness as Exhibit Ka-8. Subsequently, the statement of Gulshan, Kalua and Choudhary were recorded. The underwear of the accused was taken into the possession. His statement was recorded. Further, the statements of S.H.O. D.D. Verma, Sub Inspector Hari Das Prajapati, Constable Mansook Ali, Constable Ram Chandra, witness Chandrika and Haridas were recorded. Further, the injury report of the accused and the victim were recorded in the C.D. The medical reports were also recorded in the C.D. The statement of the victim recorded under Section 164 Cr.P.C. was also copied in the C.D. Petticoat of the victim was taken into possession, which was sent to the Forensic Lab for examination.

5. The investigation was conducted by this witness ended into the charge-sheet, which was proved by this witness as Exhibit Ka-9.

6. P.W. 6 Dr. Gyanendra Nikhra, conducted the ossification test of the victim and proved the radiological report as Exhibit Ka-10 and X-ray plate as material Exhibit 1.

7. The prosecution examined as many as eight witnesses. P.W. 1 is Naraina, the informant, who lodged the F.I.R., which was proved by this witness as Exhibit Ka-1. He further proved the recovery memo by virtue of which the Petticoat of the victim was taken into possession as Exhibit Ka-2. The victim P.W. 3 is S.I. Rajendra Singh Solanki, P.W. 4 is Dr. Anita Sagar, whose evidence have been discussed by me. Further the evidence of P.W. 5 Tejpal Singh, P.W. 6, Dr. Gyanendra Nikhra and P.W. 7 Haridas Prajapati has proved the recovery memo as Exhibit Ka-11 and the underwear of the accused as material Exhibit 2. P.W. 8 is Ramkishore Tiwari, writer, who proved the statement of the victim recorded under Section 164 Cr.P.C. as Exhibit Ka-12.

8. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., who denied the occurrence and stated that he had been falsely implicated due to enmity.

9. After hearing counsel for the parties, learned lower court found the accused guilty and sentence him as has been specified in Para 1 of the judgement.

10. Feeling aggrieved, the accused has come in appeal.

11. I have heard the learned counsel for the parties and perused the trial court record.

12. Learned counsel for the appellant has submitted that the judgement of the lower is bad in the eyes of law, because the learned lower court has based its judgment on an inadmissible evidence. Further, it has been submitted that the victim was a major and consenting party. Hence, the prosecution has miserably failed to proved the case beyond reasonable doubt.

13. 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.

14. As far as F.I.R. is concerned, the occurrence is said to have taken place on 31.8.2006 between 11/12 in the day time, whereas the report was lodged on the same day at 7:30 p.m. The distance of the place from the police station being 14 kms. Hence, the F.I.R. is prompt and there is no delay in lodging the F.I.R.

15. As far as occurrence is concerned in Rajendra @ Raju Vs. State of Himanchal Pradesh, AIR 2009 SC 3022, the Hon'ble Apex Court has held that :

"In the context of Indian Culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."

17. There is no reason to disbelieve the sole testimony of the prosecutrix, if her testimony is probable, reliable and worthy of credence. In the cases of rape, the testimony of the prosecutrix stands at par, infact a better footing then that of an injured witness. It is really not necessary to insist for corroboration, if the evidence of the prosecutrix inspires confidence and appears to be credible. Although P.W. 1 is not a witness of fact, but anything stated to this witness immediately after the occurrence by the victim would be relevant to consider the matter.

18. P.W. 1 Naraina has stated that when her daughter had gone to chop the fodder, she was raped by the accused. Although, as per her own version, after the incident, the victim returned home alongwith Choudhary and narrated the whole incident to her mother. Although, the mother of the victim has not bee produced, but the mother of the victim narrated the whole incident to this witness. After the incident, he went inside the house and saw his daughter's blood stain, then his daughter narrated the whole incident to him. He has thus, stated that the victim told him that when she was chopping fodder (Jwar), Dharmendra came from behind and dragged in the fields, dropped her and raped her. On hearing shrieks Kalua came, at which the accused fled away. The victim returned home with Kalua and Choudhary.

19. Now it has to be seen that what the victim stated, as far as the occurrence is concerned in Exhibit Ka-12 being the statement of the victim recorded under Section 164 Cr.P.C. she has stated that when she was chopping fodder, the accused dragged her 3 or 4 times. He pointed a country made pistol at her and raped her. He also threatened her from a country made pistol. The accused kept on raping her, she became unconscious. When she gained consciousness, she returned home and narrated the whole incident to her parents.

20. This witness as usual also had to undergo the test of cross-examination, but she miserably failed in the test of cross-examination inasmuch as she has specifically stated that :

/kesZUnz ?kVuk ds le; iSUV] 'kVZ o p<~ Thus, as per aforesaid statement this witness remained with the accused for an hour or two. During this period the accused had sexually intercourse with her once and then they kept lying there. This gives weight to the submission of the defence that the intercourse was a consensual act of the victim and the accused both. Besides in the statement recorded before the court, the witness completely dispelled of having shown or threatened with any country made pistol. Although, the statement recorded under Section 164 Cr.P.C. is the statement recorded just after the incident, but such major variations raised a shadow of doubt on the prosecution case.

21. It has further been submitted by learned counsel for the appellant that since this lady was a married lady and there would have been serious implications in her married life, if she would not have go to lodge the report against the accused inspite of her being a consenting party, hence she lodged the report.

22. Again the victim in her statement stated that she was dragged in the field, but before the court, she has stated that she was carried by one person and taken and she was raped and that person was Dharmendra. She has stated that the accused got her from behind, due to which her fodder and Hasia fell down, suddenly Choudhary and Kalua heard her shrieks and exhorted at which this state that Dharmendra had caught her when Choudhary and Kalua came near the victim, Dharmendra insulted her and fled away. She has stated that both these witnesses heard the incident and returned to their houses and she also went back to her house. She has stated that she did not become unconscious, whereas in the statement under Section 164 Cr.P.C. it has been stated that she became unconscious and the prosecution has been changing their version now and again initially there was a country made pistol, the victim became unconscious, who returned home after she gained consciousness, which was denied by the victim before the court. She has gone to the extent of saying that she did not said to the Magistrate that she became unconscious. I do not think that the Magistrate would record something not stated by the victim. Hence, it appears that the victim is even not sparing the court in levelling false implication.

23. No doubt the informant and the victim both are the interested witness, but on the ground of interestedness only the testimony of witness cannot be discarded.

24. Generally, in 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 there is no 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.

25. The victim P.W. 2 has further stated that after the occurrence, her husband came to her house, who came 7-8 days after the occurrence, who stayed her house for 2-3 days. Her father-in-law also came and she went to her father-in-law's house. Contradicting his daughter the informant being father of the victim has stated that at the time of occurrence his son-in-law was residing in District-Bhadohiand he neither visited the house of the informant, though he knows about the incident. Thus, as per the statement of the victim, her husband came to her house after the incident, which was denied by her father.

26. The victim has stated that the witnesses Choudhary and Kalua returned back to their home after the occurrence, whereas P.W. 1 Naraina has stated that Choudhary and Kalua brought his daughter back to the house. Although, neither Choudhary nor Kalua has been produced before the court. P.W. 2 has further stated that the accused took her in the fields by catching both her hands, it appears that the witness could not conceal of the facts before the court and she has said that neither she sustained any injuries nor she was unconscious. She has also stated that since the accused heard the footsteps of Choudhary and Kalua, he ran out of the fields, who was seen by Choudhary and Kalua fleeing away. She has stated that the police took Rs. 800/- as fare and seized her Petticoat. Dr. Anita Sagar, who examined the victim at 1045 a.m. on 1.9.2006, found the cervical tear 2-3 cm. on posterior side, about which she has stated that the injury could have been sustained by falling.

27. There is nothing on record to show that this injury was due to any sexual assault. As I have said earlier how the Petticoat of the victim was seized at the police station, when she was wearing a Petticoat and Sari besides Blouse and when she did not have any alternative Petticoat to wear, how she was left only in a Sari to the court from the police station, from the police station to hospital and from the hospital to her house.

28. The victim has further stated that she had shown the field from where the fodder was chopped and the broken crops to the I.O., whereas the I.O. P.W. 5 Tejpal Singh has stated that he did not find any broken plants on the place of the occurrence.

29. Perusal of the site plan shows that the place of occurrence is a very secluded place, where all around there are fields in which fodder (Jwar) was standing and the victim is said to have chopped the fodder in between and the rape is said to have committed at place ''A', which is secluded place surrounded by the crops and this type of hide place made in between the place which could also felicitate meeting of young girls and boys.

30. Another glaring fact in this case is that the victim has denied that she did not give her consent and has also admitted that the accused did not discharge his semen. This makes the whole prosecution case dice inasmuch as the prosecution has produced the Forensic Lab report on record, which is Exhibit Ka-13, according to which on the Petticoat of the victim and underwear of the accused, semen was found and on both the clothes sperm was found. This either the oral evidence is incorrect or the medical is incorrect. If the medical and oral evidence is disbelieved then the oral evidence was down like a heap of cards. The enmity of the accused with the victim is also proved on record inasmuch as the defence filed 10 papers while listing 45 Kha. The trial court did not bother to exhibits to be documents and just made a passing reference of all these papers.

31. As regard the enmity of the accused with the family of the victim is concerned P.W. 1 Naraina has admitted that the place where he resides is owned by Jaikaran father of the accused. He has further admitted that way back in 1985 the father of the accused had filed an ejectment suit against the father of the victim, which was decided against the father of the victim. He has also admitted that the father of the accused had filed cases against the whole family of the victim and his collaterals, one of whom was Gulshan, who is the witness of recovery of the underwear. Even the victim P.W. 2 has admitted that enmity with the accused inasmuch as she has admitted that the land on which they have a house and are residing initially belonged to the accused and litigation was pending for the last 20 years between family of the victim and father of the accused.

32. Papers in this regard were also filed by the defence, which were copies of application moved by father of the accused against the informant and witness Kalua and Gulshan under Section 145 Cr.P.C. Copies of the plaint decided in favour of the father of the accused and against the informant are also on record, which proves the enmity between the family of the victim and the informant.

33. Thus, in the aforesaid background I find it difficult to accept the testimony of the prosecutrix on its face value I searched for support from other material, but found complete lack of corroboration on material parts. Thus, the evidence of the prosecutrix making deliberate improvements on material points with a view to rule out her consent, her statement read in its totality makes the story projected by the prosecutrix absolutely improbable.

34. In Rajoo & Others Vs. State of Madhya Pradesh, AIR 2009 SC 858 the Hon'ble Apex Court has held that :

"Ordinarily the evidence of a prosecutirx 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. 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."

35. Thus, the court has been left with the sole testimony of the prosecutrix, which is unreliable, untrustworthy and unworthy of credence. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 28.1.2014 passed by Special Judge S.C./S.T. Act/Additional Sessions Judge in Special Criminal Case No. 91 of 2006 (State Vs. Dharmendra) arising out of Crime No. 80 of 2006, under Section 376 I.P.C. and Section 3(2)(5) S.C./S.T. Act, Police Station-Badausa, District-Banda, is hereby set aside.

36. Accordingly, the appeal is allowed. 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.

37. Let a copy of this order be sent to the trial court concerned for compliance of the order.

Order Date :- 9.3.2016

Anurag/-