Anju vs State Of U.P.
2016 Latest Caselaw 2203 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
RESERVED
 
Court No. - 27
 

 

 
Case :- CRIMINAL APPEAL No. - 2660 of 2015
 

 
Appellant :- Anju
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajiv Kumar Saini,Shailesh Kumar Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgement and order dated 30.5.2015 passed by Additional Sessions Judge, Fast Track Court, Saharanpur in S.T. No. 565 of 2012 (State Vs. Anju and Others) arising out of Crime No. 101 of 2012, under Sections 363, 366 and 376 I.P.C., Police Station-Deoband, District-Saharanpur, whereby all the accused except Anju was acquitted. Consequently, the accused-appellant Anju were convicted to 3 years rigorous imprisonment and Rs. 2,000/- fine under Section 363 I.P.C.; 4 years rigorous imprisonment and Rs. 2,000/- fine under Section 366 I.P.C. and 7 years rigorous imprisonment and Rs. 5,000/- fine under Section 376 I.P.C. with default stipulation.

2. The brief facts of the prosecution case are that one Patiram lodged a written report on 12.3.2012 stating that on 11.3.2012 at 5:00 p.m. his minor daughter was taken away by accused-appellant Anju with illegal intentions. The accused was seen taking away the girl by Vicky and Dharmendra. The informant searched for his daughter, when both the witnesses told him that they had seen the accused taking away his daughter. Complaint was also made to the father of the accused, who did not pay any heed. Hence, F.I.R. was lodged.

3. On the basis of this written report, Constable 428 Lakshman Singh, P.W. 5 scribed the chik report, which was proved by this witness as Exhibit Ka-6. This witness further proved the copy of the G.D. as Exhibit Ka-7. P.W. 8 Dr. Surendra Singh, who conducted the ossification test on the victim and proved the radiological report as Exhibit Ka-14. He further proved x-ray plate as material Exhibit-1. Dr. Madhu Agrawal, P.W. 4 medically examined the victim. She did not find any marks of injury on the external or internal part of the victim. The hymen was old, torn and healed and the vagina was admitting two fingers easily. The slide of vaginal smear was prepared and sent for medical examination. This witness proved the medical report as Exhibit Ka-3, pathological report as Exhibit Ka-4 and the supplementary report as Exhibit Ka-5 respectively.

4. The prosecution examined P.W. 1 Patiram, the informant, who proved the written report as Exhibit Ka-1. P.W. 2 is the victim, who proved her statement recorded under Section 164 Cr.P.C. P.W. 3 is Vickey, who is said to have seen the accused taking away the victim. P.W. 6 is Sub Inspector Om Prakash, who recorded the statement of the victim. He copied the statement of the victim recorded under Section 164 Cr.P.C. The victim was handed over to her father. The memo was prepared and proved by this witness as Exhibit Ka-8.

5. On 17.3.2012, this witness inspected the spot at the pointing out of the informant. He prepared the site plan and proved it as Exhibit Ka-9. After that this witness was transferred. Further investigation was conducted by P.W. 7 S.I. Chandra Veer, who perused the C.D. He recorded the statement of the accused in jail. He prepared the memo, which was proved as Exhibt Ka10. He proved Exhibit Ka-11 and Ka-12. The investigation was ended into a charge-sheet, which was proved by this witness as Exhibit Ka-13.

6. After the prosecution evidence was closed, the statement of the accused was recorded under Section 313 Cr.P.C., in which the accused stated that the informant extorts money from people and he lives at different places. The accused-appellant further stated that he had been falsely implicated in this case, but no defence evidence was adduced.

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

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

10. I have heard the learned counsel for the appellant, learned A.G.A. for the State and perused the trial court record.

8. Learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence available on record.

9. Learned counsel for the appellant has stated that there is inordinate delay in lodging the F.I.R., hence there is likelihood of embezzlement and false implications in the first information report.

10. Perusal of the record shows that the victim was missing from her house since 11.3.2012 at 5:00 p.m. The report was lodged on 15.3.2012 at 3:30 p.m. about six days after the incident. The police station was 4 k.m. away from the place of occurrence as is evidence from the perusal of the chik report Exhibit Ka-6. As far as delay is concerned, the F.I.R. date typed is 12.3.2012, but the seal of the police station shows that it was presented at the police station on 17.3.2012, on which date crime number was allotted. In the F.I.R, the informant has stated that Vicky and Dharmendra told him that his daughter was taken away by Anju, hence he lodged the report.

11. Perusal of the Tehriri report Exhibit Ka-1 makes it very clear that on 12.3.2012 definitely the informant had come to know about the names of the accused persons and that his daughter was missing. As far as delay is concerned the informant P.W. 1 Patiram has stated that when the accused took the victim, his two younger children were present in the house, when he returned to his house at 7:00 p.m., he found the victim missing. When he searched for his daughter Dharmendra and Vicky told him that they had seen the victim going away with Anju. After that he went to the house of the Anju, where he met Anju's father Prahalad, when he was asked about the girl, he kept silence, at this the informant returned home, since it was about 8:00 p.m.

12. Next day morning at 10:11 a.m. he went to police station-Deoband. He got application typed outside the police station and gave the application at the police station. The police assured the informant that they would investigate the matter and asked him to go. But his report was lodged after many days. In the particular case, the name of the accused had come to the knowledge of the informant on the same day, but he has stated that since it was 8:00 p.m., he did not go to the police station. I do not understand that even on the next day early morning, he was not eager to lodge the report and went lazily at 10 to 11 a.m. to the police station. The averment of the informant that he gave the report at the police station, but the report was not lodged is not acceptable, because copy of the G.D. Exhibit Ka-7 is also on record, which shows that it was only on 17.3.2012 when the informant went with the written report to the police station.

13. lt is apt to mention here that in rape cases the delay in filing the F.I.R. by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle.

14. In (2013) 3 SCC 791 Rajesh Patel Vs. State of Jharkhand the Hon'ble Apex Court has held that :

"If the explanation of a delay in lodging the F.I.R. is untenable, then it cast a shadow of doubt on the prosecution case."

15. There is no reason why the police would not have lodged the report, if they had received the report on 12.3.2012. Thus, as stated in (2013) 3 SCC 791 Rajesh Patel Vs. State of Jharkhand the inordinate delay in lodging the F.I.R. against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the F.I.R. makes the prosecution case improbable to accept. Thus, the delay in lodging the F.I.R. stands unexplained, which cast a shadow of doubt on whole prosecution story.

16. As far as age of the victim is concerned, the learned A.G.A. has vehemently stated that as per the statement of the victim, her date of birth has mentioned in the high school certificate was 23.5.1998, hence admittedly she was a minor on the date of occurrence. Hence, her consent, if any, is not carry any weight.

17. Per contra learned counsel for the appellant has submitted that there is procedure described for determination of age even of the victim in cases of rape. Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, provides :-

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.

18. According to Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, the first preference should be given to the high school certificate admittedly and there is no quarrel about this proposition of law. The victim has also admitted that she was having her high school certificate and could produce it, according to which she is minor. But neither the prosecution submitted high school certificate nor the trial court bothered to summon the high school certificate. Withholding of the high school certificate by the prosecution leads to the inference that if the high school certificate would have been produced, it would have gone against the prosecution. Hence, in this regard adverse inference has to be withdrawn.

19. In the absence of the high school certificate on record and according to the list of exhibits filed and proved before the trial court, the medical evidence has to be relied upon. Dr. Surendra Singh, P.W. 8 conducted the ossification test on the victim and proved it as Exhibit Ka-3. As per supplementary report Exhibit Ka-5 proved by Dr. Madhu Agrawal, P.W. 4, it reveals that the epiphysis around the right elbow joint were fused, all the epiphysis around right knee joint were fused, all the epiphysis of the right elna were fused while the epiphysis of right radius was almost fused with some scar mark. Thus, as per Exhibit Ka-5 the Dr. opined the age of girl to be about 18 years.

20. In the absence of matriculation certificate, this medical report would be admissible. Thus, in all possibilities of the matter, the victim was above the age of consent at the time of occurrence. Although, even if the victim is below 16 and her statement is not trustworthy and unreliable, no useful purpose would be served by going further to determine her age, if the factual aspect of the matter is not proved beyond reasonable doubt.

21. In cases of rape, ordinary, the statement of the prosecutrix should be given due consideration and importance infact the statement of the prosecutrix should be kept on a higher pedestal, then that of an injured witness. I am quite conscious of the fact that in a matter of rape the statement of the prosecutrix must be given primary consideration. But at the same time the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully.

22. In (2009) 15 SCC Page 566 (Para 9) Tameezuddin @ Tammu Vs. State of (NCT) of Delhi, the Hon'ble Apex has observed that :-

"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. We are of the opinion that story is indeed improbable."

23. In AIR 2009 SC Page 858 Rajoo Vs. State of M.P., the Hon'ble Apex Court has observed that :

"Ordinarily the evidence of a prosecutrix should not be suspected and should be believed the more so as the statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary."

The court however further observed that

"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."

24. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.

25. In (2015) 7 SCC Page 272 (Para 30) Mohd. Ali @ Guddu Vs. State of U.P. the Hon'ble Apex Court has observed that :-

"True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, if the Court had studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony."

26. As far as the recovery of the victim is concerned, P.W. 1 Patiram, the father of the victim has stated that he did not approach any senior police officer, when his report was not lodged. The police telephoned him 7-8 days after the incident that his daughter had been recovered. He received the telephone call at 10-11 a.m., but he does not remember the date. There is no recovery memo on record. The investigating officer P.W. 6 S.I. Om Prakash has stated that the victim was given in custody of her father, but where she was recovered with whom, if any, she was recovered is wanting in the statement of P.W. 6 S.I. Om Prakash and P.W. 7 S.I. Chandra Veer. P.W. 7 has stated that he does not know from where the victim was recovered. He does not know in whose Supurdigi the victim was given and he also does not know whether the previous I.O. prepared the site plan of the place of recovery or not.

27. The victim, P.W. 2, has stated that she was taken to Moradabad, where she stayed for 2-3 days. From there Prahalad, Minakshi and unknown accused person took her to Deoband by train and left her at Subhash Chawk, Deoband. From there she was recovered by the police. This statement of the victim is indigestible and untrustworthy, because if it was the intention of the accused to leave the victim alone at Deoband, there was no reason why they would bring her from Moradabad by train to Deoband and they would leave her alone at Deoband. They would very well have left the victim at Moradabad itself, thus, the recovery of the victim too is also doubtful. As far as the occurrence is concerned the statement of the victim was recorded under Section 164 Cr.P.C., which was proved and marked as Exhibit Ka-2, in which she has stated that the accused-appellant Anju, his mother, father and sister all having threatened her and taken her away.

28. According to her statement Mukesh, Prahlad, Minakshi etc. left her at Subhash Chawk, Saharanpur on 20.3.2012. From 11.3.2012 to 20.3.2012 the victim remained with the accused-appellant and his family members. She travelled by different conveyance to different parts of the State, but did not raise alarm on the pretext that she was threatened that her brother and family members would be killed. This explanation is not acceptable, because the accused himself was present with the victim and he had not threatened her that he will sent somebody to kill her brother and father. When the statement of the victim recorded under Section 164 Cr.P.C. was put to her, she accepted that she had stated to the Magistrate. No doubt the statement of a person recorded under Section 164 Cr.P.C. is only a previous statement and that person can be contradicted by his previous statement, which was done in this case by contradicting the victim P.W. 2 in her statement recorded under Section 164 Cr.P.C., in which she has admitted that the Magistrate has recorded her statement, but she has stated that she did not tell the Magistrate that Anju took her away on a motorcycle to Ludhiana and she could not explain why this statement figured in her statement recorded under Section 164 Cr.P.C.

29. Further when she was corroborated by her statement recorded under Section 164 Cr.P.C., she has not stated that they lived at Moradabad for 4 days and she could not explain how it was written in the statement. I am sorry, I am not inclined to disbelieve the statement written by the Magistrate, because there is no reason to think why a Magistrate would record an incorrect statement.

30. In AIR 2010 SC Page 3813 Musauddin Ahmed Vs. State of Assam, the Hon'ble Apex Court has observed that :

"If there are serious contradictions in the deposition of the victim before the court and her statement recorded under Section 164 Cr.P.C. it would make the prosecution case doubtful."

31. Coming to the statement of the victim P.W. 2, in which she has stated that at 5 O'clock Anju, his father Prahlad, his mother Munees and Minakshi, sister of Anju came to her house and took her away by threatening to kill her and her brother. They took her to the Deoband railway station. After that Anju made her sit in the train and threatened to kill her brother, if she would raise alarm. Anju took her to Ludhiana. They travelled by Tempo from the railway station, where she was raped by her consent. In the next breath she has stated that for 2 to 3 days, she was raped by Anju against her consent. After that Anju brought her to Moradabad, while she was at Ludhiana, Prahlad and Minakshi came to her, but they did not say anything to her. There is no reason why when a girl is being raped by a boy, why his father and sister would come to see the victim for no rhyme or reason. Further, she has stated that Minakshi and Anju took her to Moradabad by train, where she was kept in a room and was again raped.

31. Next day, Prahlad being father of the accused and Anju also came at Moradabad. The victim was threatened with dire consequences, she stayed at Mordabad for 2 to 3 days, from there she was taken to Deoband by Prahlad and Minakshi and she was left at Deoband. In cross-examination, she has stated that she did not know the accused persons from before, whereas the father of the victim has stated that the accused persons are his neighbours.

32. The victim has further stated that she went by motorcycle from her house with Anju and one unknown person. This unknown person is newly for the first time introduced in the statement before the court. She has further stated that Anju purchased the ticket. He stood in the line to get the ticket, why at this point of time alarm was not raised is a million dollar question, which remained unanswered throughout the trial. The victim has further admitted that the railway station was crowded. Trying to be very innocent, she has stated that she did not know whether Anju was carrying any dangerous weapon or not.

33. I fail to understand if the accused is empty handed and the victim and accused both travelled by tempo or train, even to other State then what prevented the victim from raising alarm. The victim has further admitted that Anju used to give her fruit and breakfast. Anju also gave two stitched suits, which she wore. Nobody else except the duo stayed in the room.

34. The victim P.W. 2 has further stated that at Moradabad Minakshi used to bring breakfast and food and for the first time before the court during trial she has stated that when she was taken from the house, her brother and sister aged about 9, 10 and 11 years respectively were present in the house. Thus, the statement of the prosecutrix is wholly unreliable, untrustworthy inadmissible and fanciful. P.W. 3 Vicky has stated that he did not see the accused taking away the girl. He was declared hostile by the prosecution and was cross-examined by the prosecution, but there is nothing significant in the cross-examination. Certain contradictions were pointed out to the I.O. S.I. Om Prakash P.W. 6 and the victim P.W. 2. The I.O. has specifically stated that the victim did not tell him that Prahlad, Mukesh and Minkashi collectively got the victim raped by Anju. Thus, the contradiction, which have been put to the I.O. and the victim also cast a shadow of doubt on the prosecution case. 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. Accordingly, the appeal is allowed.

35. Hence the impugned judgement of conviction and sentence dated 30.5.2015 passed by Additional Sessions Judge, Fast Track Court, Saharanpur in S.T. No. 565 of 2012 (State Vs. Anju and Others) arising out of Crime No. 101 of 2012, under Sections 363, 366 and 376 I.P.C., Police Station-Deoband, District-Saharanpur as far as it relates to the accused-appellant Anju, is hereby set aside.

36. 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

Order Date :- 04.05.2016

Anurag/-