Allahabad High Court
Chandan vs State Of U.P. on 6 August, 2021
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED ON 29.7.2021
DELIVERED ON 6.8.2021
Case :- CRIMINAL APPEAL No. - 631 of 2001
Appellant :- Chandan
Respondent :- State of U.P.
Counsel for Appellant :- Sampurnanand,D.K. Singh Chauhan,R.B.S. Rathaur
Counsel for Respondent :- Govt.Advocate
Hon'ble Karunesh Singh Pawar,J.
1. This appeal is directed against the judgment and order dated 2.8.2001 passed by Additional Sessions Judge/FTC Court No.2, Raebareli, whereby and whereunder the appellant has been convicted under section 376 I.P.C. and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.2,000/-, with default stipulation.
2. Heard learned counsel for the appellant, learned Additional Government Advocate and perused the record.
3. The prosecution case as per written report dated 8.3.2000 is that on 6.3.2000, while the prosecutrix was looking after the peas sowed in her field, then around 5.00p.m., Chandan of her village came near her and forcibly caught her hand and dragged her into her wheat field and forcibly put her down and committed rape, and said that if she would raise alarm, he will kill her. After committing rape, he went away. Her father-in-law and husband were not at home at that point in time. Yesterday evening, when her father-in-law came, she told him of the incident. On the written report, chik first information report was lodged which, during trial was exhibited as Ext.Ka-5. Written report is Ext. Ka-1.
4. The investigating officer recorded the statements of the witnesses, made recovery memo of wearing apparel, i.e. peticot of the prosecutrix on which stains of semen were present. He prepared the site plan, Ext. Ka-7, made entry in the G.D.. He filed the charge-sheet. The case was committed vide order dated 1.11.2000 to the Court of Sessions. Charges under Section 376 I.P.C. read with section 506 I.P.C. were framed against the accused appellant.
To prove its case, the prosecution has produced P.W.1 Heera Devi, P.W.2 Dr Geeta Bhatia, P.W.3 Dr. S.L. Sharma, Radiologist, P.W.4 HC Bramhdeen Chaudhary, P.W.5 F.S. Zafri, A.S.I. The prosecution has also exhibited written report Ext.Ka.1, F.I.R. Ext.Ka.5, recovery memo Ext. Ka-8, Site plan Ext. Ka-7, G.D. entry Ext. Ka.6 and charge-sheet. Statement under section 313 CrPC of the accused was recorded in which his case was of denial and he clearly stated that he has been falsely implicated due to enmity with father in law of the prosecutrix.
5. The prosecutrix was examined as P.W.1. In her examination in chief, she reiterated the prosecution story as mentioned in the written report and stated that she was raped by Chandan who caught her hand and forcibly dragged her in the wheat field and raped her. While committing rape, he threatened to kill if she raised alarm. In her cross examination, she has stated that the place of occurrence is at one bigha distance from her home. She is new for the village. Adjacent to the field, there is a public path on which the people used to come and go. She again stated that the incident took place in her field. In the field of peas, Chandan has committed rape. Then she says that Chandan has not held her hand, nor dragged her. She went to lodge the report on the fifth day of the incident to the police station. She denied the suggestion that her father in law and and Sundarlal of her village have inimical terms with the accused appellant.
Dr. Reeta Bhatia has been produced as P.W.2 who had medically examined the prosecutrix. She has not found any injury on private part of the prosecutrix in the internal examination. Hymen was torn, old and was changed with loose tag. Slide of vagina was prepared and was sent for forensic examination. She proved the medical examination report, Ext. Ka.2, Supplementary report was also prepared. In the laboratory report No.87 of 2000, in the vaginal slide, no sperm was found. From the report, it was found that all the joints were fused. The joint of wrist was also fused. On the basis of this analysis, she opined that the age of the prosecutrix is more than 18 years. No clear opinion about rape has been given by her. She proved Ext.Ka.3, i.e. the supplementary report.
Dr. S.L. Sharma, Radiologist has been examined as P.W.3. He proved X-ray report Ext.Ka.4.
P.W.4 HC Bramhadeen Chaudhary has proved chik report Ext. Ka.5 and also G.D. entry, Ext. Ka.6.
P.W.5 ASI F.S. Zafri, investigating officer has stated that he has taken the peticot of the prosecutrix on which the stains of sperm were found. He has prepared the site plan and has proved it as Ext. Ka.7. The recovery memo is Ext. Ka.2 which is also proved by him. He has also proved the charge-sheet Ex.Ka.9. He has shown his ignorance regarding the fact whether semen stained peticot of the prosecutrix was sent for chemical examination to the laboratory or not. He stated that when the prosecutrix came to the field of peas, nobody from the village has come.
6. Learned counsel for the appellant submits that the testimony of the prosecutrix is self contradictory. The prosecutrix has changed the place of occurrence. The peticot has not been sent for chemical examination. The testimony of the prosecutrix is not reliable and it is highly improbable.
7. Learned A.G.A., on the other hand, submits that the conviction of the appellant accused can be made on the basis of sole testimony of the prosecutrix. No corroborative material is required nor any other witness of fact is required.
8. On due consideration of the arguments advanced by appellant's counsel and learned A.G.A., it appears that the place of occurrence has been mentioned as wheat field in the written report as also in the first information report. The prosecutrix in her examination in chief has also stated the place of incident as wheat field. However, in the cross-examination, the place of occurrence has been changed by the prosecutrix and now she has stated that the place of incident is field of peas. The investigating officer in the site plan has also shown place of occurrence in the wheat field. Thus, this part of the statement of the prosecutrix has become doubtful in view of the change of place of the occurrence. In the examination in chief, the prosecutrix says that she was dragged by the accused by pulling her hands, however, in the cross-examination, she says that he had not caught hold of her hand, nor he dragged her. She further says that on the fifth day of the incident, she went to lodge a report wherein in the written report, the date of incident is of 6.3.2000 and the written report is dated 8.3.2000 and the first information report is dated 8.3.2000.
According to the statement of the prosecutrix, the first information report/written report was given on the fifth day of the incident. Thus, the incident must have taken place five days before the written report, i.e. on 3.3.2000 and not on 6.3.2000 as has been mentioned by the prosecutrix in her written report. The prosecutrix has stated that the appellant threatened her to kill. It is not disputed that no weapon was used by the appellant for threatening the prosecutrix. The place of occurrence is only one bigha away from home which is quite a short distance and is clearly visible from her home. Still no one saw the incident. The place of occurrence is adjacent to a public path on which according to the prosecutrix, people used to pass till 5/6.00 p.m. The incident took place at 5.00p.m.. Still no one saw the incident. It was day time at 5.00p.m. She further stated that she was new to the village. She had not met Chandan prior to the date of incident. It has not been clarified by her that when she did not know Chandan as she was new for the village, then how she recognised Chandan at the time of alleged commission of crime. It was the second marriage of the prosecutrix. She denied the suggestion that her father in law and Sunderlal have enmity with the accused.
P.W. 5 F.S. Zafri has not sent peticot of the prosecutrix for chemical examination which he should have given to prove the case of the prosecution. The medical report does not corroborate the prosecution case. There was no injury on the body of the prosecutrix. On overall evaluation of the evidence of the prosecution witnesses, it appears that the testimony of the prosecutrix is self contradictory regarding the place of occurrence and the manner of assault and commission of the crime. The testimony of the prosecutrix being self contradictory as the place of occurrence has been changed coupled with the fact that in the statement of the accused under Section 313 CrPC, it is the case of the accused that he has been falsely implicated due to enmity with the father in law of the prosecutrix, does not inspire confidence. It needs some corroboration or at least something short of corroboration which is not present in the present case. The medical examination does not corroborate the prosecution case. On this kind of improbable, shaky testimony of the prosecutrix, it can be safely said that the prosecution has failed to prove its case beyond reasonable doubt.
9. Hon'ble Supreme Court in (2012)7 SCC 171 Narendra Kumar versus State (NCT of Delhi) held that where the evidence of the prosecutrix is found suffering from inconsistencies and infirmities with other material, no reliance can be placed thereon. The relevant para 22 is reproduced as under :
"Where 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. (Vide Suresh N. Bhusare v. State of Maharashtra (1999) 1 SCC 220)"
In (2010)14 SCC 534 Jai Krishna Mandal versus State of Jharkhand, Supreme Court reiterated that the improbable statement of the prosecutrix cannot be believed. Relevant portion of para 4 is reproduced as under :
"4............The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
In Raju versus State of M.P (2008) 15 SCC 133, Hon'ble Supreme Court held that no doubt, a false allegation of rape can cause equal distress, humiliation and damage to the accused as well and interest of the accused must also be protected. Relevant portion of paras 10 and 11 are reproduced as under :
"10........... that ordinarily the evidence of a prosecutrix 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.
"11.......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."
Similar view has been taken by Hon'ble Supreme Court in Tameezuddin versus State (NCT of Delhi (2009)15 SCC 566.
10. There is of course circumstance like recovery of clothing apparel belonging to the victim. However, such recovery of peticot by itself, in the absence of any other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the case was proved beyond reasonable doubt, more so in view of the fact that albeit the investigating officer found stain of sperm on the peticot, however, he did not send it for chemical examination. The medical report does not corroborate the prosecution case. The prosecutrix has changed the place of occurrence and the statement of the prosecutrux is not corroborative by any evidence. Thus in view of the above, since the testimony of the prosecutrix is self contradictory, it does not inspire confidence. Some corroborative material is needed which is absent in this case.
11. In view of the aforesaid discussion, considering the totality of facts and circumstances as well as the law laid down by the Apex Court, it will not be safe to convict the appellant and to uphold the impugned conviction and sentence of the accused on this kind of evidence.
12. I, therefore, allow this appeal and set aside the order of conviction and sentence recorded against the appellant. The appellant be set at liberty forthwith, unless his custody is required in connection with any other crime. The appellant is on bail, his bail bonds stand discharged.
Let lower court's record be sent back.
(Justice Karunesh Singh Pawar) August 6, 2021
