Shashi vs State Of U.P.
2016 Latest Caselaw 2413 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 27
 

 
Case :- CRIMINAL APPEAL No. - 2788 of 2015
 
Appellant :- Shashi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rohit Shukla, Deepak Dubey
 
Counsel for Respondent :- Govt. Advocate
 
Connected with 
 
Case :- CRIMINAL APPEAL No. - 3755 of 2015
 
Appellant :- Haresh
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Arun Kumar Vishwakarma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Since both the afore-captioned criminal appeals have been filed against the judgment and order dated 08.07.2015 passed by the learned Additional District & Sessions Judge (Fast Track Court), Mathura in Sessions Trial No. 648 of 2010 (State vs Shashi and others), hence they are being decided by this common order.

2. Challenge in these appeals is to the judgment and order dated 08.07.2015 passed by the learned Additional District & Sessions Judge (Fast Track Court), Mathura in Sessions Trial No. 648 of 2010 (State vs Shashi and others) arising out of Case Crime No. 126 of 2010, under sections 363, 366, 376 IPC, Police Station Farah, District Mathura whereby the accused appellants Shashi and Haresh have been convicted and sentenced to six years' rigorous imprisonment and a fine of Rs. 2000/- each under section 366 IPC and ten years' rigorous imprisonment and a fine of Rs. 5000/- each under section 376(2)(g) IPC with default stipulation. Out of the fine amount so deposited by the appellants, half of the same was directed to be paid to the victim.

3. Filtering out the unnecessary details, the prosecution case is that on 23.04.2010, informant Gajraj Singh has given a written report stating that he is the resident of village Daulatpur, police station Baldev. In the morning of 15.04.2010, his daughter, the victim aged about 15 years went to attend the call of nature, when she did not return back for sometimes, his wife told him that the victim had gone to attend the call of nature, but she did not return. Then he started searching his daughter. On the way, he met Pappu son of Heera lal and Deep Chand, son of Bhuri Singh, who told him that at 6.00 a.m.,the victim was going with Shashi, son of Soran Pandit and Haresh, son of Pratap Singh, resident of police station Jhudawai on motorcycle. On this information, he along with Banwari, Purshottam, Rohan Singh and Satyaveer went to village Jhudawai and had a talk with Niranjan, uncle of Haresh, Maya, mother of Haresh and Chhotalli, brother of Shashi, who gave assurance that they shall make endeavour to get the victim returned. When he was searching his daughter, he came to know that Shashi along with Haresh had come to village after taking the motorcycle of his brother-in-law, who is the resident of Chhadgaon. He went to Chhadgaon, where Haresh and Shashi and the victim were present at the house of Shashi's brother-in-law. They reprimanded him. Shashi's brother-in-law told him that he will not handover the victim to him.

4. On the basis of the aforesaid report, a case was registered at case crime No. 126 of 2010, under sections 363, 366, 367 IPC, police station Baldev, district Mathura

5. After the registration of the case, the case was entrusted to SI Mahendra Singh Chahar, PW 6. He copied the chik FIR and recorded the statements of chik writer and the complainant and inspected the spot on 24.4.2010 and prepared site plan, in his hand writing, which he proved as Ext. Ka-6. He also recorded the statements of witnesses Pappu and Deep Chand and that of the victim and also recovered the victim. On 27.4.2010, he prepared the recovery memo under his handwriting and signature, which he proved as Ext. Ka-7. He also got the statement of the victim recorded under section 164 Cr.P.C. After the statement of the victim under section 164 Cr.P.C., section 376 IPC was also added.

6. After the transfer of the case, further investigation was carried out by SI Rajendra Singh, PW-7, who perused the case diary and recorded the statements of the informant, victim and her mother. He also recorded the statement of the witnesses Pappu and Deep Chand, all of them supported their earlier statements and told the investigating officer that the name of brother-in-law of Shashi was Deen Dayal and the name of person who was driving the car was Chhotali, the brother of the accused Shashi. On 27.5.2010, he also recorded the statements of witnesses of recovery, Constable Chandrapal and Mahaveer and submitted the charge sheet against the accused, which he proved as Exts. Ka-11 and 12.

7. To bring home the guilt of the accused-appellants, the prosecution has examined as many as seven witnesses. PW-1 is Gajraj Singh, the informant and father of the victim. PW-2 is the victim of the case. PW-3 is Smt. Roopa, the mother of the victim. PW-4 is Pappu. PW-5 is Dr. Vinita Singh, who medically examined the victim. PW-6 is SI Mahendra Singh Chahar. PW-7 is SI Rajendra Singh, the second investigating officer of the case.

8. PW-1 Gajraj Singh is the informant of the case. He reiterated the versions given in the FIR, which he proved as Ext. Ka-1.

9. PW 2 is the victim of the case. She deposed that when she had gone to attend the call of nature, accused Shashi and Haresh were present there. They stuffed her mouth and tied her hand behind and got her to sit on the middle of the motorcycle. Shashi was driving the motorcycle while Haresh was sitting behind her. They took her to village Chhadgaon in the house of their brother-in-law where both of them committed rape on her.

10. PW 3 is Smt. Roopa, the mother of the victim. She deposed that her daughter had gone to attend the call of nature. She did not return. She tried to trace her, but she could not be traced out. Shashi and Haresh did not take her on motorcycle. She does not know as to where she had gone and when she returned. She further deposed that Niranjan, Chhotali and Maya have no hands in taking away of her daughter nor anyone has told her about this fact till date. On the basis of her deposition, this witness has been declared hostile and the prosecution was permitted to cross examine her.

11. PW 4 is Pappu. He deposed that he knows the informant and his daughter. He heard that the victim has gone somewhere. He had not seen the victim going with Haresh and Shashi on motorcycle. On that day, he was not in the village. On the date of occurrence neither Gajraj met him nor he had a talk with him. He never told Gajraj that Haresh and Shashi took the victim. He does not know Haresh and Shashi. As this witness did not support the prosecution and has been declared hostile.

12. PW-5 is Dr. Vinita Singh, who has medically examined the victim. She deposed that on 27.4.2010 she was posted as Medical Officer at District Women Hospital, Mathura. On that date she has medically examined the victim, who was brought by Constable 518 Sunita Devi. She did not find any injury on her person. The vagina admitted two finger easily. The hymen was old torn. There was no injury on her private part. After taking the vaginal smear, the same was sent to the pathologist. For ascertaining the age, x-rays of wrist and elbow were advised. This witness has proved the medical report as Ext. Ka 3, reference slip as Ext. Ka-4. As per the report of the Pathologist, no semen was found. This witness has further stated that no definite opinion about rape can be given. As per x-ray report, the age of the victim was found to be 18 years. On the basis of the pathologist and x-ray reports, this witness has prepared supplementary medical report and proved it as Ext. ka 5.

13. The evidence of PW 6, SI Mahendra Singh Chahar and PW-7 SI Rajendra Singh has already been discussed above.

14. After close of the prosecution evidence, statements of accused persons were recorded under section 313 Cr.P.C., in which they denied the occurrence. They have stated that they have been falsely implicated in the case due to village party-bandi.

15. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 2 of the judgement.

16. Feeling aggrieved, the accused have come up in appeal.

17. Heard Shri Deepak Dubey, learned counsel for the appellants, learned Additional Government Advocate for the State respondent and perused the lower court record.

18. Learned counsel for the appellants have vehemently argued that the charges framed against the appellants have not been proved beyond all reasonable doubt. The conviction is based on inadmissible evidence and the appeals are liable to be allowed.

19. On the other hand, learned A.G.A. has submitted that the findings of fact recorded by the trial court is based on evidence, which is clear, cogent and convincing. Hence, the appeals are liable to be dismissed.

20. A submission has been advanced on behalf of the appellants that there is inordinate delay in lodging the FIR, inasmuch as the occurrence is said to have been taken place on 15.04.2010, whereas the report was lodged on 23.04.2010 at 11:15 a.m. the police station being 6 kms away from the place of occurrence. Since, the delay in lodging the FIR has not been explained, hence it would definitely cause a dent in the prosecution case. In this regard, perusal of the FIR Ext. Ka-1 would be necessary, in which the informant has stated that on 15.04.2010, in the morning the victim had gone to attend the call of nature and when she did not return for quite sometime, he went to search her, at which Pappu and Deep Chand told him that they had seen the victim going at 6:00 a.m. with Shashi and Haresh on motorcycle. At this, Banwari, Purshottam, Rohan Singh and Satyaveer accompanied by the informant went to village Jhudawai and conversed there, at which Niranjan, uncle of Haresh and Maya, mother of Haresh and Chhotalli, brother of Shashi promised to return back the girl. They came to know that Shashi had brought the girl on his brother-in-law motorcycle with Haresh. When these people went to Chhadgaon, Haresh, Shashi and the victim were in the house of Shashi's brother-in-law, but they were removed from there and the brother-in-law of Shashi told them that they would not hand-over the girl back. They assured that the girl will return back, but did not return back her. Hence, the report was lodged. If the averments in the FIR are taken to be correct, then how it can be believed that the father of the victim found the accused and the victim in the house of Shashi's brother-in-law, but in spite of fact that these were five accused, the victim and the accused-appellants were removed from that place. The informant neither saw the accused taking away the girl nor he saw anybody raping her. Although, the informant has tried to explain that when the accused persons saw the informant and other villagers, they removed the girl from that house and said that they would not return the girl. What prevented this witness from lodging the missing report from 15.04.2010 to 23.04.2010 is a question which remained unexplained throughout the trial. According to the informant Gajraj Singh PW-1, Pappu and Deep Chand told him that they had seen Shashi and Haresh taking away the victim.

21. Pappu was examined as PW-4, who specifically stated that he did not meet the informant nor he saw Haresh and Shashi taking away the girl on motorcycle. This witness was declared hostile by the prosecution and cross-examined, but nothing could be illustrated from this witness by the prosecution.

22. Father of the victim PW-1 Gajraj Singh has further stated that he does not know whether Niranjan is accused in the case or not. Since his brother was roaming around with him, he did not think it proper to dictate the report. He knew all these facts. This witness was further cross-examined, in which he stated that the report given by him was lodged on the basis of what people told him. The accused Shashi and Haresh were not known to him from before. Their names were also told to him by the villagers and according to narration of the villagers, he named them in the first information report. He has further stated that the report was got lodged as per the version of the witnesses, who lodged the report from outside. He also stated that the age of the victim was 18 years at the time of occurrence.

23. The victim was examined as PW-2, who has stated that when she went to attend the call of nature, she met Haresh and Shashi, who kept a handkerchief on her nose, tied her hands back and they made her to sit between them on the motorcycle. Shashi was driving the motorcycle while Haresh was sitting behind her. They took her to the brother-in-law's house at village Chhadgaon, where Haresh and Shashi tied her hand and feet and both raped her many times. After that Shashi, Haresh and Chhotalli took the victim to Jhudawai, where she was kept for 1-1/2 day and she was raped by Haresh and Shashi, when she tried to raise alarm, she was threatened. In Jhudawai, when she was being raped, the mother, father, sister and uncle of Haresh and Shashi used to push her in the room and used to lock her inside and used to ask the accused to rape her. Both her feet were widen and tied and her hands were tied back and she was raped. From there she was taken by Haresh, Chhotalli and Shashi to Jaipur, where her hands and feet were tied and she was raped for about six days. She was also beaten there and she was compelled to apply lip-stick and wear sari etc. She was compelled to do court marriage against her wishes. From there these accused brought her to the township near Gokul Bairaj, where she met police and police took her back.

24. This witness was put to the test of cross-examination, in which she has stated that both Haresh and Shashi caught her, they dragged her sit on the motorcycle and put a handkerchief, whereby she became unconscious. I do not think that a sister, mother, uncle and brother would ask the accused to rape the victim because in India moral values still survive. Although, the victim has stated that after Jhadawai, they took her by jeep, but she did not know what a jeep is. They took her after making her unconscious. From Jhadawai to Jaipur they did not permit her to gain conscious, but she regained consciousness, she was in hotel at Jaipur. She stayed in the hotel for 5-6 days, where she was made unconscious. Now, this is a story which is not digestible. It is very improbable as to how she would come to a hotel in an unconscious state, nobody from the hotel could notice this fact. Nobody would raise any alarm.

25. A new story has been introduced by the victim before the court during the trial, in which she has stated that one man was standing with a pistol threatened to kill her if she raised alarm, but she did not know whether the pistol was loaded or was empty. She did not know whether the hotel staff came to clean the room or not. From Jaipur, all the three came by motorcycle. She was made unconscious and brought by motorcycle and her hands were tied backwards. When she was being taken to the court from Jaipur all along she remained unconscious. This is also not believable because bringing an unconscious girl in the court premises without anybody noticing cannot be believed. When statement of this witness under section 164 Cr.P.C. was put to her, she stated that she had told the Magistrate that her hands and feet were tied, but perusal of the statement of the victim under section 164 Cr.P.C. reveals that this fact is wanting in her statement under section 164 Cr.P.C. This witness was again recalled, in which she stated that Haresh and Shashi tied her hands and feet and raped her. Again on the next day, this witness was produced in court, in which she has stated that she is uneducated and she does not know her date of birth. She was put to the test of cross-examination, in which she has stated that the accused Haresh and Shashi present in court did not take her by motorcycle neither the accused appellants Haresh and Shashi raped her. In the initial statement, she had named them because they were calling each other by these names. When she had seen both the accused in court, she specified that both the accused had not raped neither they assaulted nor they took her anywhere. This witness was declared hostile and the prosecution was permitted to cross-examine this witness.

26. Learned AGA has submitted that there is no bar in relying upon the testimony of the hostile witness.

27. As far as the testimony of a hostile witness is concerned, in Prithi vs State of Haryana, 2011 (72) ACC 338, it has been laid down that section 154 of the Evidence Act enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

28. In Khujji alias Surnedra Tiwari vs State of M.P., 2010 (8) Supreme Court Cases 536, the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.

29. In Koli Lakhmanbhai Chanabhai vs State of Gujarat, (1999) 8 Supreme Court Cases 624, it has been held that it is settled that evidence of hostile witness can also be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.

30. I have gone through the judgment of the trial court and the trial court has specifically stated that since the victim had supported the prosecution version in her examination-in-Chief, but had back out from her examination-in-Chief in her cross-examination, hence in spite of being hostile her evidence could be relied upon.

31. I am afraid that the learned lower court lost sight of the law laid down by the Hon'ble Apex Court in State of Rajasthan vs Babu Meena (2013) 4 Supreme Court Cases 206, in which the Hon'ble Apex Court has laid down as follows:

"We do not have the slightest hesitation in accepting the broad submission of Mr Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused."

32. Thus, as is evident from the record and the statement of the prosecutrix, she has been changing her versions again and again. Thus, she is wholly unreliable witness and in case the prosecution is based on wholly unreliable testimony of a single witness, the court has no option but to acquit the accused. Thus, the court could not at all have relied upon the statement of the victim and more so could not have convicted the accused-appellants on the basis of the statement of the victim, which was being changed in every breath. She often changed her statement as regards her age. The doctor opined her age to be above 18 years as per Ext. Ka-5, but since the statement of the prosecutrix was not reliable, hence I do not think there is any necessity to determine her age.

33. Thus, the learned lower court committed grave illegality in passing its conviction on the statement of the victim, who was wholly unreliable witness.

34. Consequently, the judgment as regards conviction of the accused-appellants Shashi and Haresh is liable to be set aside.

35. The learned lower court has given a finding that the victim PW-2 has given false statement before the courts. It has yet to be decided which of the statements is false so that part of the judgment need not be interfered that the proceedings drawn by the trial court under section 344 Cr.P.C. shall proceed in accordance with law, but so far as the conviction of the accused persons is concerned, it is liable to be set aside.

36. Hence, the impugned judgement and order of conviction and sentence dated 08.07.2015 passed by the learned Additional District & Sessions Judge (Fast Track Court), Mathura in Sessions Trial No. 648 of 2010 (State vs Shashi and others) arising out of Case Crime No. 126 of 2010, under sections 366, 376(2)(g) IPC, Police Station Farah, District Mathura as againt the present appellants is hereby set-aside.

37. Accordingly, the appeal is allowed.

38. The appellants-Shashi and Haresh are on bail. Their bail bonds are cancelled and the sureties are discharged. However, the appellants Shashi and Haresh are directed to comply with the provisions of Section 437-A Cr.P.C.

39. The proceedings under section 344 Cr.P.C. against the victim PW-2 shall proceed in accordance with law as directed by the trial court.

40. Let a copy of this order be sent to the Trial court concerned.

Order date: 10.05.2016

Sazia