Guddu And Another. vs State Of U.P.
2021 Latest Caselaw 1667 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
									A.F.R.
 
Court No. - 33.                                                   		 Reserved
 
                                                                                                     
 
Case :- CRIMINAL APPEAL No. - 441 of 2003
 

 
Appellant :- Guddu And Another.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.N.S.Chauhan
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. The instant criminal appeal, under Section 374 (2) Code of Criminal Procedure, 1973 (herein after referred to as 'Code') has, been preferred against the judgment and order dated 26.02.2003, passed by Additional Session Judge, Fast Track Court No.2 , Unnao, in Session Trial No.354 of 2001, arising out of case Crime No.111 of 2001, Police Station- Fatehpur Chaurasi, District- Unnao, whereby appellant Guddu has been convicted for offence under Section 366 I.P.C. for 5 years rigorous imprisonment with fine of Rs.5000/- and for offence under Section 376 I.P.C. for 7 years rigorous imprisonment and appellant Naresh has been convicted under Section 366 I.P.C. for 5 years rigorous imprisonment with fine of Rs.5000/-.

2. The prosecution case, in brief, is that the victim (P.W.-2) is sister of informant Om Prakash (P.W.-1). On 5.5.2001 at about 7:00 a.m., Om Prakash (P.W.-1) lodged a written report (Ext.Ka.-1) at police station- Fatehpur Chaurasi, District-Unnao, alleging therein, that his sister (P.W.-2), aged about 16 years, had gone on 27.4.2001, at about 8:30 p.m., to answer the nature's call, towards the field of northern side of village. It was further alleged that at that time informant and his family members were harvesting their crops in his field, meanwhile, appellants Guddu, Santosh along with co-accused his brother Naresh and his father Ramai Pasi enticed the victim away. It is further alleged that the said occurrence was seen by Uma Shanker son of Madhav Barai, co-villager of (P.W.-1), who narrated the whole story to him and since then he (P.W.-1) was searching his sister (P.W.-2) but failed to locate her.

3. On the said information, F.I.R. Chik (Ext.Ka.-6) was registered against the appellants and other co-accused and investigation was entrusted to Sub-Inspector Ram Awtar Diwakar (P.W.-4), who visited the place of occurrence, prepared the site plan (Ex.Ka.-8) and recorded the statement of (P.W.-1) including other witnesses Uma Shanker, Guddu and Ram Gopal. During investigation, on 17.5.2001 the victim (P.W.-2) was recovered by P.W.-4, in the presence of P.W.-1, near Takia Crossing when she was traveling with appellant Guddu in Bus No.U.G.P.-04143. P.W.-2 was sent to Government Women Hospital, Unnao for medico legal examination. Dr. Tabbasum Khan (P.W.-3) examined the P.W.-2 on 18.5.2001 and prepared medico legal certificate (Ext.Ka.-4). According to her, the victim's height was 154 c.m. and her weight was 42 kg. In external examination of the P.W.-2, no mark of injury was present on any part of her body ; her both breast were developed ; pubic and auxiliary hairs were present.

4. According to doctor (P.W.-3) further, in internal examination of the victim (P.W.-2), no mark of injury was present on her private part ; hymen ruptured, old torn and healed ; and vagina admitted two fingers easily. According to P.W.-3 further, vaginal smear were taken and two slides were prepared, which were sent for pathological examination to ensure for presence of alive or dead human spermatozoa and the P.W.-2 was sent for radiological examination for determination of her age.

5. According to P.W.-3, further she had prepared supplementary report (Ex.Ka.-5), the victim's (P.W.-2) radiological age was more than 18 years and no definite opinion could be given regarding rape.

6. After conclusion of investigation, charge sheet was filed for offence under Sections 366 and 376 I.P.C. against the appellants before the concerned Magistrate, who after taking the cognizance of the offence, since the offence was exclusively triable by the Court of Sessions, after providing the copies of relevant police papers, as required under Section 207 of the Code, committed the case to the Court of Sessions, Unnao, for trial.

7. Learned trial Court framed charge for offence under Section 366 I.P.C. against the appellant Naresh and for offence under Sections 366 and 376 I.P.C. against the appellant Guddu, to which, they denied and claimed for trial.

8. The prosecution, in order to prove its case, examined Om Prakash (P.W.-1), victim (P.W.-2), Dr, Tabbasum Khan (P.W.-3) and Sub-Inspector Ram Awtar Singh (P.W.-4). The prosecution has also relied written information (Ex.Ka.1), recovery of victim and arrest memo of appellant Guddu (Ex, Ka,-2), handing over memo of victim (Ex.Ka.-3), proved by P.W.-1, medico legal certificate and supplementary report (Ex.Ka.-4) and (Ex.Ka.-5), proved by P.W.-3 and Chik F.I.R. (Ex.Ka.-6) Kayami G.D. (Ex.Ka.-7) site plan (Ex.Ka.-8), Chargesheet (Ex.Ka.-9), proved by (P.W.-4). The prosecution has also relied X-ray report (Ex.Ka.-10) and X-ray plate (Material Ex.-1), the genuineness whereof was admitted by defence Counsel under Section 294 of the Code.

9. After conclusion of prosecution evidence, the statement of appellants were recorded under Section 313 of the Code, who denied the prosecution evidence and stated that they had been falsely implicated.

10. Learned trial Court, after conclusion of trial, convicted and sentenced the appellants vide impugned judgment and order. Aggrieved by the judgment and order as above, the appellants have preferred this appeal.

11. Heard Sri R.N.S. Chauhan, learned counsel for the appellants and Sri Brijendra Singh, learned A.G.A.-I for the State.

12. Learned counsel for the appellants submitted that the appellants are innocent and falsely implicated. Learned counsel further submitted that the first information report was lodged by delay of 8 days without any plausible explanation. Learned counsel further submitted that victim was major, at the time of occurrence, no injury, either internal or external, was found on the person of victim ; she was consenting party ; and ocular evidence is not supported with medical evidence. Learned counsel further submitted that whole family members of the appellants were falsely implicated in this case. Learned counsel further submitted that (P.W.-1) informant is not an eye witness ; witnesses named in the F.I.R. as eye witness were not produced by the prosecution and the statement of sole eye witness (victim) is not reliable and trustworthy. Learned counsel further submitted that alleged recovery of the victim from Bus is also not trustworthy as no witness, traveling in the Bus or driver and conductor were examined by the prosecution. Learned counsel further submitted that the trial Court without considering the material, available on record, passed the impugned judgment and order in very casual and cursory manner, which is liable to be set-aside.

13. In support of the aforesaid submissions, learned counsel for the appellants placed reliance on law laid down by Hon'ble Supreme Court in Rajak Mohammad Vs. State of Himachal Pradesh, (2018) 9 S.C.C. 248, Lilia Alias Ram Swaroop Vs. State of Rajasthan, (2014) 16 S.C.C. 303, Mohd. Ali alias Guddu Vs. State of U.P., (2015) 7 S.C.C. 272 and State of Madhya Pradesh Vs. Munna, (2016) 1 S.C.C. 696.

14. Per contra, learned A.G.A. vehemently opposing the submission made by learned counsel for the appellants, submitted that the prosecution case, supported by the statement of victim, has been proved beyond reasonable doubt. Learned A.G.A. further submitted that only on account of delay in lodging the F.I.R., the prosecution story cannot be held as doubtful because informant (P.W.-1), when failed to search the victim, had lodged the F.I.R. and such delay, caused in lodging the F.I.R., is natural and justified. Learned A.G.A. further submitted that in rape case statement of victim cannot be disbelieved only on account of non production of independent witness. Learned A.G.A. further submitted that there is no illegality in the impugned judgment and order, the appeal lacks merit and is liable to be dismissed.

15. I have considered the rival submissions, advanced by learned counsel for both the parties and perused the record.

16. The alleged offence was happened in 2001. The trial Court has convicted the appellant Naresh for offence under Section 366 I.P.C. and the appellant Guddu for offence under Sections 366 and 376 I.P.C.

17. Section 361 I.P.C. defines the offence of kidnapping. Section 362 defines the offence of abduction. Section 375 defines offence of rape. Section 366 I.P.C. is aggravated form of kidnapping and abduction and deals with punishment for offence of kidnapping, abducting or inducing woman to compel her marriage and Section 376 I.P.C. deals with the punishment for the offence of rape. Sections 361, 362, 366, 375 and 376 I.P.C. as it was in the year of 2001, are as under :

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

362. Abduction.--Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.

375. Rape - A man is said to commit rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :

First - Against her will.

Secondly - Without her consent.

Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly - With or without her consent, when she is under sixteen years of age.

Explanation - ...........................

Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

376. (1) Whoever, except in the cases provided for by sub section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to ten years and shall also the liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) whoever, ................"

18. Thus, from perusal of aforesaid provisions, it is clear that if the victim is aged about 18 years or more than 18 years the prosecution has to prove by the cogent evidence and reliable evidence that victim was abducted and raped forcibly without her consent and willingness.

19. Om Prakash (P.W.-1), informant and brother of the victim (P.W.-2), in cross examination, admitting that P.W.-2 had passed high school examination in 1998, has stated that her (P.W.-2) date of birth is 04.01.1982. He has also admitted that he had not seen the P.W.-2 when she had gone from his house. He (P.W.-1) has specifically admitted that he had seen his sister (P.W.-2) after 15 - 20 days of her missing. This witness has not stated that either he had seen occurrence when the P.W.-2 was kidnapped by the appellants or when she had gone from her house to answer the nature's call. Thus, this witness is not an eye witness of the occurrence.

20. The victim (P.W.-2), sole eye witness, has stated that on 27.04.2001, at about 8:30 p.m., she had gone to answer the nature's call towards the field. She further stated that the appellant Guddu, brother of the appellant Naresh and their father Ramai Pasi including two unknown persons, suddenly appeared there with Katta (country made pistol) and they threatened her not to make noise otherwise they would kill her. Stating further, that appellants and co-accused carried her near Ganges river (Ganga ki Katri) and kept in a bungalow for 15 days, she further stated that they used to carry her in village at every night. She also stated that during that period appellant Guddu had forcibly committed rape with her for 2 - 4 occasions. Stating that at that time she was aged about 16 years, she further stated that one day appellants were carrying her for unknown place, by private bus but she was caught by the police along with appellant-Guddu, near Takia Crossing and appellant Naresh fled away from that bus. She further stated that she was brought by the police at concerned police station ; she was medically examined in the Government Women Hospital ; and thereafter she was handed over in the custody of her parents, after preparation of handing over memo (Superdiginama) (Ex.Ka.-3).

21. In cross examination, she (victim) stated that she had also told the involvement of Ramai Pasi, father of the appellant, in the said offence to the Investigating Officer (P.W.-4) and if he had not mentioned the involvement of Ramai Pasi in the said offence, she could not give any justification. She further stated that she had gone lonely to answer the nature's call (Tatti) nearby pond with mug (Lota) and said pond is situated 20 steps towards east of her house. Stating further, that it was dark night, the appellants were present behind the bush and threatened her by country made pistol (Tamancha), she further stated that she could not raise any alarm and said Mug (Lota) was left there. Stating further that she walked on foot whole night ; no one had met her on the way ; and she did not make any complaint to any person, she further stated that she reached in the morning in the village but did not make any complaint there also to any person. Stating further, that she stayed in that village 15 - 20 days, she further stated that there were appellants' relative in that village ; she did not make any complaint to them because she used to go out of her room, followed by the appellants with Tamancha, only to answer the nature's call. Admitting that she had passed intermediate examination one year before the occurrence, she further stated that she did not know the appellant Guddu, prior to the occurrence.

22. In Mohd. Ali Alias Guddu (supra), relied by learned counsel for the appellants, Hon'ble Supreme Court, where the first information report was lodged by delay of 11 days and victim was taken from one place to another and remained at various places for almost two months with only explanation that she was ravished by the appellant for number of times but no injury was found on her private part, has held as under :

"Para-30. 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, a pregnant one, when a court, on 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. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely does not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the appellant accused for the alleged offences and the High Court has fallen into error, without reappreciating the material on record, by giving the stamp of approval to the same."

23. In Lilia Alias Ram Swaroop (Supra) where the independent witness was not examined, victim was aged about 20 years and medical evidence was also not corroborating the prosecution story, Hon'ble the Supreme Court, allowing the appeal, set-aside the conviction of the appellant.

24. In Rajak Mohammad (Supra) where the victim was remained in the company of appellant for about 12 days until she was recovered and she had freely moved around with the appellant in the course of movement, she came across many people at different point of times, yet she did not make any complaint of the offence, committed by the appellant, to any person, Hon'ble Supreme Court, while setting aside the conviction of the appellant and expressing doubt on the age of victim, based on radiological examination and by giving benefit of doubt in favour of appellant, held as under :

"Para-9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt ; naturally, must go in favour of the accused."

25. It is settled principle of law that for offence of rape, the prosecution case based on solitary evidence of the prosecutrix, whose evidence is trustworthy, unblemished and of sterling quality, cannot be thrown out for want of corroborative evidence and independent witness.

26. In Krishan Kumar Malik Vs. State of Haryana (2011) 7 S.C.C. page 130, Hon'ble Supreme Court was also of the view that for offence of rape, the solitary evidence of victim is sufficient, provided that it inspire confidence of the Court and is reliable trustworthy and of sterling quality.

27. Supreme Court in Santosh Prasad @ Santosh Kumar v. State of Bihar AIR 2020 SC 985, while allowing the appeal against conviction, in a case based on the solitary evidence of prosecutrix, expressing its opinion regarding nature and quality of solitary evidence of victim as well as scope of false implication of accused in sexual offences, has held as under :

"5.2. From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 - prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh - Medical Officer and PW7 - Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 - Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.

5.3. As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.

5.4. Before considering the evidence of the prosecutrix, the decisions of this Court in the cases of Raju (AIR 2009 SC 858) (supra) and Rai Sandeep @ Deepu, (AIR 2012 SC 3157) relied upon by he learned Advocate appearing on behalf of the appellant-accused, are required to be referred to and considered.

5.4.1. In the case of Raju (AIR 2009 SC 858, Para 9) (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:

"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, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but 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.

12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] : (AIR 1996 SC 1393) to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is s extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."

5.4.2. In the case of Rai Sandeep alias Deepu (AIR 2012 SC 3157, Para 15) (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:

"22. 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 the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

5.4.3. In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130 : (AIR 2011 SC 2877), it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality."

5.5. With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality ?"

(Emphasis supplied)

28. Coming to the facts of the case, the first information report (Ex.Ka.-1) was lodged by delay of 8 days by Om Prakash (P.W.-1), who is not eye witness. In F.I.R. (Ex.Ka.-1) it has been specificially mentioned that Uma Shankar son of Madhav Barai, Guddu son of Ram Swarup, Ram Gopal son of Ram Ratan had seen the appellants and other accused persons that they were taking away the victim. Om Prakash (P.W.-1) has also stated in his examination that Uma Shanker, Guddu and Ram Gopal had seen that the victim was being taken away by the appellants and other co-accused. The prosecution has not examined the said Uma Shanker, Guddu and Ram Gopal. In addition to above, the prosecution has also not examined either driver or conductor of the bus or any person travelling in the bus where from the victim and appellant were alleged to be recovered and arrested by the police on 17.5.2001. The prosecution has not given any justification for non-examination of aforesaid eye witnesses. Non examination of these important witnesses creates a doubt in the prosecution story.

29. It is also pertinent to note that victim (P.W.-2) has stated that place of occurrence (pond), where she had gone to answer the nature's call, is situated at distance of only 20 steps from her house and the appellants along with other co-accused were hiding behind the bush. From perusal of site plan (Ex.Ka.-8), it is clear that said pond is situated nearby the field of one Shyam and Shiv Dular and grove land of one Rajendra Prasad. There are no residential house situated nearby the pond and in this site plan, no place has been shown where the appellant and co-accused were hiding whereas it has been mentioned that village of P.W.-1 i.e. Marookpur (Jasra) is situated one furlong away from there. Further, according to victim (P.W.-2) at the time of occurrence, she had gone with mug (Lota) and according to her that mug was left by her at the place of occurrence but no lota was either shown or recovered by the Investigating Officer from the place of occurrence .

30. It is pertinent to mention, at this juncture, that after the recovery of the victim, she was not produced before any Magistrate for recording her statement under Section 164 of the Code and the Investigating Officer has also not prepared any site plan of the place from where the victim was recovered. In addition to above, the victim was major and according to Dr. Tabbasum Khan (P.W.-4), no mark of injury was found on her private part at the time of examination and no opinion regarding rape could be given by her.

31. It is also pertinent to note, at this juncture, that in rural areas, normally young and unmarried girls do not prefer to go alone in the night, out of their village, without informing any member of their family. In this case, according to the victim (P.W.-2) she had gone out of her house to answer the nature's call, at about 8.30 p.m. and according to P.W.-1 at that time, he along with his family members, was harvesting his crops. According to prosecution, the appellants along with their another brother and father, were hiding behind the bush and kidnapped the P.W.-2. Record shows that appellants are resident of village Jasara and P.W.-1 is resident of village Marookpur. Neither P.W.-1 nor P.W.-2 has stated that P.W.-2 used to go daily out of her house alone at 8.30 p.m., to answer the nature's call. Her (P.W.-2) going out of her house at 8.30 p.m., at the time of occurrence to answer the nature's call at any particular place where appellants along with his brother and father were already waiting her, having prior information or intimation of her (P.W.-2) movement, makes the conduct of P.W.-2 doubtful in peculiar facts and circumstances of the case.

32. It is also pertinent to note, at this juncture, that although in rape cases, normally the delay in lodging the F.I.R. is not material but if such delay was deliberately caused and was without any justification it may create doubts in the veracity of the prosecution case. In this case, the F.I.R. was lodged by delay of 8 days. According to P.W.-1, at the time of occurrence, he and his family members were present in the village and harvesting the crops. He has specifically stated that the occurrence was witnessed by one Uma Shanker, Guddu and Ram Gopal also, who informed him that the appellants, their brother and father had kidnapped the victim. He (P.W.-1) has not stated any thing, in his statement, as to why he lodged the F.I.R. by delay of 8 days. Thus, huge delay of 8 days in lodging the F.I.R., further has created doubt in the prosecution story.

33. In view of the above, as there is huge delay of 8 days in lodging the F.I.R. ; ocular evidence is not supported with medical evidence ; victim resided and moved with the appellants for more than 20 days and even travelled in Government Bus and did not make any complaint to any person and she was major at the time of occurrence ; eyewitnesses, who saw the appellants taking away the victim, were also not examined by the prosecution, the prosecution case, based on sole testimony of the victim, is neither reliable and trust worthy nor is of sterling quality and the prosecution has failed to prove its case beyond reasonable doubt against the appellants.

34. Thus, the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants. Learned trial Court, without considering the aforesaid fact and circumstance of the prosecution story, has passed the impugned judgment and order in cursory manner, which is liable to be set-aside. Appellants Guddu and Naresh are entitled for acquittal and consequently the appeal is liable to be allowed.

35. I am, therefore, unable to uphold the conviction and sentence of the appellants. The impugned judgment and order, dated 26.02.2003, passed in Session Trial No.354 of 2001 (State of U.P. Vs. Guddu and Another), is hereby set-aside. Both the appellants, Guddu and Naresh are acquitted and consequently, the appeal is allowed.

36. Appellants are on bail. Their bail bonds are cancelled and sureties are discharged.

37. Keeping in view the provision of Section 437-A of the Code, appellants Guddu and Naresh are hereby directed forthwith to furnish personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, they, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

38. A copy of this judgment along with lower court record be sent to trial Court by FAX for immediate compliance.

Order Date :- 28.01.2021

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