Sunil Kumar vs State Of U.P.
2023 Latest Caselaw 10212 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 03.02.2023
 
Delivered on 07.04.2023
 
Court No. - 12
 
Case :- CRIMINAL APPEAL No. - 1141 of 2003
 
Appellant :- Suneel Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mukul Rakesh,Sheo Prakash Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard learned counsel for the appellant and learned A.G.A. for the State.

2. The appeal has been filed against the judgment and order dated 11 .07.2003 passed by the Additional Sessions Judge (Fast Track Court No. 2), Raibareli in S.T. No. 241/2002, case crime No. 68/2002, under Section 376 I.P.C., P.S. Bachhrawan, District Raibarelly "State Vs. Suneel Kumar", whereby the appellant has been convicted under Section 376 I.P.C. sentencing the appellant to undergo for a period of seven years of rigorous imprisonment with a fine of Rs. 1000/-, with default provisions.

3. As per the written report dated 14.02.2002 one Krishan son of Ram Prasad gave information to P.S. Bachhrawan, Raibareli that daughter of the informant aged about 13 years while returning home after cutting barseem, Suneel called her daughter in the khalihan on the pretext of picking up a bundle of paddy straw where lot of paddy was piled. When her daughter reached there, Suneel got hold of her and dragged between the piled paddy straw and forcibly raped her. To save herself, her daughter raised alarm, hearing which, the informant who was nearby digging carrot roots ran, then, he saw Suneel running away from khalihan. Upon reaching the spot, his daughter told him that she has been raped by Suneel.

4. It is further alleged in the written report that due to fear of the accused, he is giving report today on 13.02.2002. Consequently, chik FIR was registered which is exhibited as Ex. Ka-10. Written report is Ex. Ka-1. The investigating officer has prepared the site plan which is exhibited as Ex. Ka-4. The victim was subjected to medical examination which is exhibited as Ex. Ka-5. A supplementary medical report was also prepared which exhibited as Ex. Ka-9.

5. After completing the investigation, charge sheet has been filed. Committal order was passed on 06.06.2002 by the concerned Chief Judicial Magistrate, Raibareli and thereafter charges were framed by the Sessions Court on 19.07.2022 under Section 376 I.P.C.

6. The prosecution in support of its case has produced following seven witnesses:-

(1) PW-1 Krishna (father of the victim)

(2) PW-2 Anita (victim)

(3) PW-3 Doctor S.L. Sharma

(4) PW-4 Ajit Kumar Singh (Sub Inspector)

(5) PW-5 Param Hans (Retired Principal)

(6) PW-6 Doctor Kalpana Chandra

(7) PW-7 Ram Babu Gautam

7. The statement of the accused under Section 313 Cr.P.C. has been done on 05.03.2003 wherein he denied all the charges leveled against him.

8. PW-1 in his statement has submitted that the incident took place at 5:30 PM while he was digging carrot roots and after hearing the alarm, he ran towards khalihan where he saw accused Suneel running away; his daughter told him that Suneel has raped her; on the second day, he got the report written by known person which was read out to him and then he signed it. He has proved the written report.

9. He also stated that the victim studied in primary school of the village and the transfer certificate dated 20.05.2002 of the school has been filed by him during his examination-in-chief. In his cross-examination, he has stated that his son Ram Chandra had died either due to train accident or somebody killed him who went to Punjab with the uncle of the accused Suresh. He further stated that he met Suresh after four days of the death of his son and when he asked him regarding death of his son, he stated that he fell from the train and was cut by the train. He also stated that after the incident Suresh and others came in the village and went to their home, however, they did not tell anybody about the death of his son. They have not told truth to him.

10. He further stated that at the time of the incident happening with her daughter, he was 100-125 meters away and after hearing alarm of his daughter, he ran towards the place of occurrence and it took 20 minutes to reach at the place of occurrence. During the entire 20 minutes, he kept hearing the alarm of his daughter.

11. He further stated that although the house of the accused is in front of his house, however, they are not in talking terms. He also stated that while the medical of the victim was conducted she wore the same clothes which she wore at the time of incident.

12. PW-2 victim has stated that the occurrence is of 13.02.2002 at about 6 PM. At the time of incident she was in her khalihan and after cutting barsin she was called by the accused Suneel requesting for her help in picking up the piled paddy straw. Then he caught hold of her hand and threw her on the piled paddy straw and raped her. While committing rape, he was threatening the victim that if she raise alarm she will be killed. When the grip of Suneel on his mouth softened then she raised alarm. Upon alarm, her father came and at that time Suneel was running towards west of the village after wearing his cloths.

13. In the cross, she has stated that prior to the occurrence, no one has raped her, neither she is having physical relations with anybody prior to the incident; her father was 4-5 meters away from the place of occurrence; her family was not in talking terms with the family of the accused as they were not right people; she went to the police station wearing same clothes which she wore at the time of rape; her clothes were taken by the police and were returned after one month.

14. She further stated that she did not know as to what was the height of the piled paddy straw upon which she was raped; she also did not know as to after how much time her father came after alarm was raised by her.

15. She also stated that after the incident she along with her father went home and on that night, neither the accused or his father came into her home. She denied the suggestion that due to enmity the accused has been falsely implicated.

16. PW-3 Dr. S.L. Sharma has stated that x-ray of the victim was conducted by the technician in his observation and supervision. On the basis of x-ray report he has prepared the report Ex. Ka-3 in which all the epiphysis of the elbow joint were fused, however, epiphysis of lower end of radius and ulna were not fused. PW-3 Dr. S.L. Sharma, has proved Ex.-Ka-3.

17. PW-4 S.I. Ajeet Kumar Singh has proved the site plan as Ex. Ka-4. He has stated that in his presence, the F.I.R. was registered, he took the statement of PW-1 and PW-2 and on the pointing out of both of them, he has inspected the site and thereafter he has arrested the accused. The statement of the prosecutrix under Section 164 Cr.P.C. was made on 14.03.2002 and after perusing the same and after recording the summary of her statement in the case diary and concluding the evidence, the charge sheet has been filed which is Ex. Ka-5.

18. PW-4 has stated that PW-1 has not told him in his statement under Section 161 Cr.P.C. that the cause of delay in lodging the F.I.R. is any kind of threat by the accused or his family members, rather PW-1 has told him that since it was late evening, therefore, for this reason he did not go to lodge the report. He has not taken the barseen which was being carried out by the victim while she was returning. He has also stated that he has inspected the place where the victim was raped and from where the victim was dragged towards the A point in the site plan. Distance between them is 20 paces away. While she was dragged to the place of rape, she has not raised alarm. He has also stated that he has not taken into the possession of the clothes worn by the prosecutrix while she was raped. He further stated that when she came with her father for lodging report, she has not shown the clothes to him. Pile of the paddy straw on which victim was raped was 8 feet in height and no document relating to the age of the victim was given by her or her family members.

19. PW-5 Param Hans is a retired Principal. He has prepared Transfer Certificate of Primary School Mannawan of the victim dated 20.03.2002 which has been brought by him at the time of his examination-in-chief.

20. PW-6 Dr. Kalpana Chandra has medically examined the victim on 14.02.2002. She has not found any injury on the external examination of the victim. In the internal examination, hymen was found absent. She has stated that no opinion of rape can be given and the victim was habitual of having sexual intercourse.

21. PW-7 is constable Ram Babu Gautam who has registered F.I.R. and has proved the same as Ex.Ka-2.

22. Learned counsel for the applicant submits that there is unexplained delay in lodging the F.I.R. There is admitted enmity between the family of the applicant and the victim. The statements of PW-1, PW-2 and PW-4 are contradictory. It has been further submitted that since the testimony of the victim is contradictory to the testimony of PW-1 and PW-4 and without there being any corroborative material, he could not have been convicted.

23. Per contra, learned A.G.A. has opposed the appeal submitting that the prosecution has been successful in proving the offence beyond reasonable doubt. It is further submitted that testimony of PW-2 alone is sufficient to convict the accused.

24. Perused the record.

25. Perusal of the statement of PW-1 shows that he has admitted the enmity with the uncle of the accused Suresh due to the death of the son of the complainant who went with Suresh for earning livelihood to Punjab. As per his statement, at the time of incident he was at the distance of 100-125 meters from the place of occurrence and he took 20 minutes to reach at the place of occurrence. He further stated that in his examination-in-chief, he saw the appellant running from khalihan when he reached at the place of occurrence. He has expressed ignorance to the fact that whether the clothes which were being worn by the prosecutrix have been taken by the doctor or not. He also state that transfer certificate has not been given to the I.O., his daughter has studied in primary school and has filed the transfer certificate on 20.03.2002 on the date on his examination. He has further stated that during entire 20 minutes he has heard his daughter weeping.

26. PW-2 in his chief has stated that while she was being raped she was threatened by the accused that if she raise alarm, she will be killed. She only cried when the grip of the accused became soft. While his father came at the place of occurrence, the accused has already ran away after wearing his clothes. She has further stated that prior to the incident, no one has raped her, neither she is in physical relationship with anybody. She has also stated that at the time of the occurrence, her father was 4-5 meter away. She was not having any talking terms with family of the accused. It has been further stated that blood stained Salwar was taken by the police after the medical examination and after one month they were returned to the victim. She was not aware about the height of the piled paddy straw on which she was raped. She was not aware as to after how much time her father came upon alarm being raised by her. She has also stated that after the incident she went with her father's home and stayed home in the night. On that night Suneel and his father did not came there. She has denied suggestion that due to enmity false implications of the accused has been done.

27. PW-4 in the cross has stated that PW-1 has not told him in his statement under Section 161 Cr.P.C. that cause of delay in lodging F.I.R. was threat extended by the accused or his family members, rather he was told that due to late evening, he did not register the report on the same day. He has also stated that the clothes of the prosecutrix have not been taken in his possession. The place of occurrence was eight feet in height where the prosecutrix was raped. No certificate regarding the age of the prosecutrix was shown by the family members of the victim. Perusal of the statement of PW-1 shows that he is not the eye witness of the incident. There is no other independent witness. The medical report does not corroborates the prosecution version.

28. PW-6 Dr. Kalpana Chandra who has examined the victim has stated that no opinion can be given regarding rape as the victim was habitual of sexual intercourse. Although on the basis of sole testimony of the victim, the conviction can be sustained, however, it should be worthy of credence, thus, the statement of PW-2 have to be examined keeping in view the fact that there is no eye witness to the incident.

29. PW-1 has stated that after hearing alarm of his daughter he ran to the place of occurrence, he was 100-125 meters away and during the entire 20 minutes he kept on hearing alarm, whereas the victim stated that she raised alarm only when the grip of the Suneel on her mouth softened.

30. According to PW-2 her father was 4-5 meters away when she was raped, whereas according to PW-1 he was 100-125 paces away. The statement of PW-2 that police has taken her blood stained salwar in its possession has also been contradicted by the I.O.

31. From perusal of the statement of PW-2, although, she has stated that she is not aware as to what was the height of the place where she was raped, the I.O. has clearly stated that it was a pile of paddy straw of 8 feet in height. PW-1 in his statement admitted the enmity with the family of the accused due to the death of his son who went with the uncle Suresh of the accused to Punjab. PW-1 has not given any reason for the delay in lodging F.I.R. whereas PW-2 has clearly stated that after the incident PW-2 along with PW-1 came home and on that date no one from the accused, his father or from his family members came to her house.

32. I.O. PW-4 has stated that in the cross PW-1 has not told him about the delay in the F.I.R. is due to threat extended by the accused persons. He has contradicted the statement of PW-2 and has clearly stated that no clothes of the prosecutrix were seized. The statement of the prosecutrix also appears improbable as in the statement of PW-4, the height of the place is said to have been 8 feet, whereas PW-2 has shown ignorance regarding the height. Although PW-1 is not eye witness, but, he was present, who has last seen the accused running away from the place of occurrence immediately after the rape was committed.

33. As per the own statement of PW-1 and PW-2, the testimony of the prosecutrix is contradicted at several places particularly PW-1 and PW-4. The statement of the prosecutrix that she only cried when the grip of the appellant got loos upon her mouth; while committing rape, he extended threat to the victim that if she cries she will be killed. On the contrary PW-1 says that he heard the alarm for continuous 20 minutes. PW-2 has shown the presence of PW-1, 4-5 meters away from the place of occurrence when the rape was committed, whereas PW-1 has stated that he was 100-125 meters away when the rape was being committed and he took 20 minutes while running to cover that distance.

34. The testimony of the prosecutrix that her blood stained Salwar was seized by the police has also been contradicted by the I.O. in his statement who has denied any such seizure. Again the ignorance shown by the prosecutrix that she is not aware as to what was the height of the place where she was raped, does not inspire confidence in face of the statement given by the PW-4 that the place of occurrence was 8 feet in height. It appears quite improbable to commit offence of rape by dragging victim upon a place which is 8 feet high and still the victim has not suffered any contusion or abrasion.

35. So far as the age of the prosecutrix as per the medical statement of PW-5, the victim could have been 18 years at the time of occurrence. This Court has taken notice as while giving statement of PW-1 examination-in-chief has brought transfer certificate dated 20.03.2002 and has filed it in the trial court. The trial court while convicting the accused has also placed reliance on this document which could not have been done as the same was not given to the investigation officer who was conducting the investigation. There is no compliance of Section 230 Cr.P.C. read with section 90 Cr.P.C. and therefore, the document could not have been relied upon by the trial court for coming to any finding.

36. On the whole, statement of the prosecutrix does not inspire confidence. In the offence of rape, the statement of the prosecutrix is utmost important. The statement of the prosecutrix should be of sterling quality which in the present case is absent. On such kind of shaky testimony of the prosecutrix which is improbable and contradictory to the statements of PW-1, PW-3 and PW-4 without there being any corroborative material or something short of corroboration, I am of the opinion that conviction on such type of sole testimony of the prosecutrix cannot be sustained.

37. 31. The Hon'ble Supreme Court in Mohd. Ali @ Guddu vs. State of Uttar Pradesh (2015) 7 SCC 272 has held as under:-

"Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned Trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be appropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had traveled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon."

38. In Hem Raj v. State of Haryana, (2014) 2 SCC 395 it has been held that :-

"10. Faced with such a situation, we were anxious to find out whether there can be any clinching medical evidence suggesting rape, but, unfortunately, the prosecuton has failed to examine Dr.Anjali Shah, who had examined the prosecutrix. The MLR was produced in the Court by P.W.6 J.B. Bhardwaj, Medical Record Technician. This is a serious lapse on the part of the prosecution. We are aware that lapses on the part of the prosecution should not lead to unmerited acquittals. This is, however subject to the rider that in such a situation the evidence on record must be clinching so that the lapses of the prosecution could be condoned. Such is not the case here. The MLR does suggest that the hymen of the prosecutrix was torn. It is also true that the prosecutrix has brought on record FSL report which shows that human semen was detected on the salwar of the prosecutrix and on the underwear of the accused. However, it is difficult to infer from this that the prosecutrix was raped by the appellant. The prosecutrix herself has vacillated on this aspect. It was pointed out that no injuries were found on the prosecutrix. We do not attach much importance to this aspect because presence of injures is not a must to prove commission of rape. But the prosecutrix's evidence is so infirm that it deserves to be rejected. Her brother has come out with a case that the appellant tried to rape the prosecutrix. He did not say that the appellant raped the prosecutrix. Taking an overall view of the matter, we find it difficult to sustain the prosecution case that the prosecutrix was raped by the appellant. This is a case where the appellant must be given benefit of doubt. "

39. The delay in loding the F.I.R., non-examination of scribe of the F.I.R., the in-consistent testimony of the prosecutrix, associated circumstances and uncorroborated medical evidence cast doubt on the testimony of the victim which failed to inspire confidence. The evidence of the prosecutrix is not of that quality on which the appellant can be convicted. Law in the regard has been settled.

40. In view of the settled law, since the evidence of the prosecutrix PW-2, PW-1 are contradictory, the testimony of the prosecutrix has also been contradicted by the I.O. she is not a credible witnesses, I find that the trial court has convicted the accused merely on conjectures and surmises and assumptions, the prosecution has failed to prove its case beyond reasonable doubt. The assumptions have not been corroborated in any reliable evidence medical does not support the case of prosecution relating to rape there is no other corroborative evidence, I am unable to agree the conclusion arrived at by the trial court. Accordingly, the judgment dated 11 .07.2003 passed by the Additional Sessions Judge (Fat Track Court No. 2), Raibareli, is set aside. The appellant is acquitted of all the charges levelled against him. The appellant is directed to be released forthwith if he is not required in any other case.

41. The appeal is accordingly allowed.

( Karunesh Singh Pawar,J.)

Order Date 07.04.2023:- /R.C.