1. Challenge in this appeal is to the judgment and order dated 23.09.2014 passed by the learned Additional Sessions Judge, Court No. 2, Varanasi in Sessions Trial No. 21 of 2012 (State vs Ajay Patel alias Sarvan) arising out of Case Crime No. 210 of 2011, under sections 363, 366-A, 376(2) IPC, Police Station Rohaniya, District Varanasi whereby the accused appellant Ajay Patel alias Sarvan has been convicted and sentenced to seven years' rigorous imprisonment and a fine of Rs. 10,000/- under section 363 IPC; seven years' rigorous imprisonment and a fine of Rs. 10,000/- under section 366-A IPC and ten years' rigorous imprisonment and a fine of Rs. 20,000/- under section 376 IPC with default stipulation. Out of the fine amount so deposited by the accused, a sum of Rs. 30,000/- was directed to be paid to the victim.
2. Brief facts of the prosecution case are that a report was lodged by Munna Lal, the father of the victim stating that on 03.05.2011, when the victim was sleeping with her family members outside her house, one Ajay Patel belonging to the same village along with his four friends pressed the mouth of his daughter and carried her away. In the morning, when the family woke up, they were astonished to see that the victim was missing. They tried to trace out her, but she could not be traced out and information was given at the police station Rohaniya about missing of the girl. The Station Officer said that somebody must have taken the girl, she will return in 2-4 days. The informant came back home. In the night of 4.5.2011 at 11:00 p.m., Ajay Patel and his friends brought the girl to the police station, the girl was in a pity condition, she could not even walk. The informant received a call on his mobile that his daughter is at the police station and he should take her. The call came from Mobile No. 8726232134. When the informant reached the police station, the Station Officer said that his daughter had gone with her brother from the police station, at which the informant said that his son is with him, at which the Station Officer sent the informant back, who came home at 11:30 p.m. The victim returned home and narrated the incident to her father and also told him where she was taken and she was raped by four people, who were friends of Ajay Patel. Again in the morning, the informant went to the police station and narrated the whole incident to the Station Officer, but neither the victim was called at the police station nor she was got medically examined nor any statement was recorded, nor any report was registered, but he was called after four days. The informant told everything to his family members. When the victim came to know about all these, she jumped into the well to commit suicide. This information was also given at the police station. The victim was taken out of the well by the villagers. She sustained injuries on her head. She was taken out of the well in the presence of Station Officer, but even then neither the FIR was lodged nor she was medically examined, but the Investigating Officer pressurized the informant to compromise the matter. Even, the Pradhan asked the informant to compromise the matter. As no report was lodged by the police, an application was moved before the I.G. Zone, Varanasi on 18.06.2011.
3. The prosecution has examined PW-1 Munna Lal, the informant in support of the prosecution case. He proved the written report as Ext. Ka-1. PW-2 is the victim. PW-3 is Dr. Mridula Malik, who examined the victim and proved the injury report of the victim. PW-4 is Constable Ram Ashish, who proved the chik report as Ext. Ka-4 and the copy of the G.D. as Ext. Ka-5. PW-5 is S.I., Jagdamba Prasad Dwivedi, who conducted the investigation. He recorded the statement of the chik writer. He further recorded the statement of the victim, inspected the spot and prepared the site plan, which was proved by him as Ext. Ka-6. He further recorded the statement of the witnesses. Thereafter, the accused was arrested and his statement was recorded. On 12.08.2011, the victim was got medically examined and the medical report was copied in the case diary. The statement of the victim was got recorded under section 164 Cr.P.C., which was copied in the case diary. The investigation ended into a charge sheet, which was proved by PW-6, S.I. Bramhadev Sharma as Ext. Ka-7.
4. After close of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which he denied the occurrence. He further stated that he had been falsely implicated and the victim was never a student of Lal Bahadur Shastri, Intermediate College.
5. CW-1 Shashi Kumar Singh was examined by the trial court, who proved the academic record as Ext. Ka-6.
6. The learned lower court, after perusing the record and hearing the counsel for the parties, convicted the appellants as stated in para 1 of the Judgment.
7. Feeling aggrieved the accused has come up in appeal.
8. I have heard Shri Madan Singh, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the trial court record.
9. It has been contended on behalf of the appellant that there is inordinate delay in lodging the FIR, which is fatal to the prosecution case. Perusal of the chik report shows that the occurrence is said to have been taken place on 03.05.2011, whereas the report was lodged on 29.07.2011 at 12.30 hours, the police station being 3 kms away from the place of occurrence.
10. As far as the delay in lodging the FIR is concerned, the informant has stated in the FIR that on the next morning, when he found his daughter missing, he lodged a missing report at the police station. Even the informant in his statement has stated that on the next day, he informed the police about the missing of his daughter. He has further stated that when he went to the police station, the police asked him to come after 2-4 days. On 04.05.2011, the girl was left at the police station, but when he went to the police station, he did not find his daughter there, but when he returned home, she was present at home, meaning thereby that on 04.05.2011, the victim was present at the house of the informant. No doubt, the delay in lodging the FIR in a rape case is always not fatal for the prosecution case, but even in cases of rape, the delay has to be explained. This is not a case, in which the informant has stated that the repute of the family was at stake, hence he did not lodge the FIR, but this is a case, in which the informant has stated that he went to the police station, but the police did not lodge the report. If for the sake of arguments, this statement be taken to be true, even then the reason for not lodging the report on 04.05.2011 remains unexplained because if at all the informant had gone to the police station, there would have been definite entries in the General Diary. As per the informant, he went many times to the police station, but he was sent back by the police, but when the girl is said to have been brought to the police station, there is no reason why this fact would have been found place in the General Diary. The informant did not make any attempt to get the General Diary summoned to prove his bonafide, which casts a shadow of doubt on the prosecution case. A fanciful story has been tried to be introduced by the informant by saying that he received a phone call that the accused had brought his daughter to the police station, but this aspect of the matter is not digestible because, if the accused persons had taken away the girl and had raped her, there was no reason why they would themselves go to the police station along with the victim.
11. In 2015 (3) Supreme Court Cases (Criminal) 82, Mohd. Ali @ Guddu vs State of U.P., the Hon'ble Apex Court has laid down as under:
"Be it clearly stated here delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW-2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown up daughter. In the absence of any explanation, it gives rise to a sense of doubt."
12. The informant has very innocently tried to plead that he was a helpless person and every time driven away by the police, but perusal of the first informant report shows that the first information report bears the seal of the District General Secretary of a political party with the directions that instant action may be taken in the matter.
13. A prompt FIR is indicative of correct facts being brought before the court. In 2007 Cr. L.J. 4709, Dilawar Singh vs State of Delhi, the Hon'ble Apex Court has held as under:
"In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution.
The complainant has attempted to explain the delay by stating that the matter was reported to the police but the police did not take any action. Such statement can hardly be taken to have explained the delay. It is the simplest of things to contend that the police, though report had been lodged with it, had not taken any steps. But it has to be established by calling for the necessary records from the police to substantiate that in fact a report with the police had been lodged and that the police failed to take up the case. The principle has been statutorily recognised in Section 210 of the Cr.P.C. which enjoins upon the Magistrate, when it is made to appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210, Cr.P.C, are mandatory in nature. It may be true that non- compliance of the provisions of Section 210, Cr.P.C., is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr. P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because of the non- production of the records from the police. Delay in filing the complaint because of police inaction has to be explained by calling for the records from the police was explained by this Court in Khedu Mohton and others v. State of Bihar (AIR 1971 SC 66). Where the Court took exception to the fact that the complaint lodged with the police had not been summoned or proved, no satisfactory proof of any such complaint had been adduced before the Court, and none of the documents as would have become available under Sec. 173, Cr. P.C., had also been brought on record."
14. Thus, the inordinate delay and the conduct of the informant makes the whole prosecution story doubtful and cast a shadow of doubt on the prosecution case.
15. As far as the occurrence is concerned, PW-1 is Munna Lal, who has stated that 2-4 to 6 months prior to the incident, his daughter was married Sunil. Trying to explain his conduct, he has stated that when he had a conversation with Ajay on mobile, Ajay threatened him not to move any application, otherwise he would kill him. Then, he came to know that Ajay had lifted his daughter. The informant PW-1 Munna Lal neither saw the girl being taken away by the accused nor he is witness of any fact, but he has stated that the girl was sleeping with her family members when she was picked away by the accused persons.
16. The statement of the victim was recorded under section 164 Cr.P.C., in which she has stated that on 03.05.2011 at about 10:30 p.m. when she was sleeping on a separate cot beside her mother, Ajay Patel came with one person. The victim had gone to attend the call of nature, Ajay Patel pressed her mouth and both picked her and taken her towards Rohaniya in the orchard of berry. The whole night, she was kept there. In the orchard, there were two other men present. All the four raped her. On the next day, she was taken to Bikapur village, where she was kept in a room. Her nose and mouth was tied and she was kept in a room, which was locked from outside. In the evening, all the four persons came in the room and again raped her. Then they took her to police station Rohaniya. All the four threatened not to reveal anything. When the C.O. asked Ajay, Ajay told the C.O. that he was brother of the victim and had come to take her, due to fear she did not reveal anything to the C.O. At about at 11:00 p.m., the accused left her near her house. On 05.05.2011, she was jumped into the well due to shyness. The statement of the victim recorded under section 164 Cr.P.C. is a previous statement and the victim can be contradicted by her statement recorded under section 164 Cr.P.C. The victim has been changing her versions time and again, which makes the prosecution story doubtful. In her statement, PW-2, the victim has stated that she was picked up when she had gone to attend the call of nature. When her statement under section 164 Cr.P.C. was put to her, she has stated that she did not give that part of statement to the Magistrate. She has stated that she had deposed something else before the Magistrate. There is no reason why the Magistrate would record an incorrect statement and this girl kept on changing her statement now and again.
17. In cross-examination, the victim has further stated the one person picked up her and the other pressed her mouth with his hand. After that, she was taken on a two wheeler in the orchard of berry. This is a new story put forth by the victim because the two wheeler has been introduced for the first time when the statement of the victim was being recorded before the trial court. She has further stated that one person was driving two wheeler, she was sitting behind and remaining were coming by another vehicle. When she was going on the vehicle, her mouth was opened. Nobody was pressing it. There is no reason why the victim did not raise alarm when her mouth was opened and the accused were unarmed.
18. In cross-examination, this witness has further stated that she had stated to the Magistrate that on the next day of occurrence at 11:00 p.m., she was left near her house. She has stated that on the next day, the accused left her at her house. If this would have been actual position, there was no reason why the written report could not have been lodged the next day when the victim had returned home and had narrated the whole incident to her family members.
19. The reason why the victim jumped into the well was that since the report was not being lodged, hence out of shame, she jumped into the well, but in cross-examination, she has stated that the well, in which she fell, it was a dry well and she does not know who took her out. If she would have been taken out in the presence of S.O. and villagers, there is no reason why none of the villagers would come forward to narrate this incident.
20. Dr. Mridula, PW-3 has proved the injuries on the person of the victim. The victim did not have any internal or external injuries, but she was walking with the help of a stick. The hymen of the victim was old torn. The vagina was admitting two fingers easily. As per the medical report, the age of the victim was about 19 years.
21. Per contra, the prosecution produced the Transfer Certificate of the victim, in which her date of birth was mentioned to be 04.05.1996, but I do not think that there is any necessity to discuss about the age of the victim because the whole prosecution story is improbable and the statements of PW-1 and PW-2 are not reliable and not worthy of credence.
22. A fanciful theory was introduced by the informant that the accused persons brought the victim to the police station. The victim has stated that one of the accused took her from the police station impersonating himself to be her brother and she did not resist. This is again a story, which cannot be relied upon.
23. Thus, what has been stated and discussed above, I conclude that the prosecution case is bundle of false allegations and improbable facts, due to which the learned trial court misled itself and has incorrectly convicted the accused, such conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed.
24. Hence, the impugned judgement and order of conviction and sentence dated 23.09.2014 passed by the learned Additional Sessions Judge, Court No. 2, Varanasi in Sessions Trial No. 21 of 2012 (State vs Ajay Patel alias Sarvan) arising out of Case Crime No. 210 of 2011, under sections 363, 366-A, 376 IPC, Police Station Rohaniya, District Varanasi, is hereby set-aside.
25. Accordingly, the appeal is allowed.
26. The appellant- Ajay Patel alias Sarvan is in jail. He shall be released forthwith unless wanted in any other case. The appellant is directed to comply with the provision of Section 437-A Cr.P.C. forthwith.
27. Let a copy of this order be sent to the Trial court concerned.
Order Date :- 02.05.2016 Sazia