1. Challenge in this appeal is to the Judgment passed by Sri Gajendra Singh, learned Additional Sessions Judge, Court No. 3, Allahabad dated 1.7.2014 passed in S.T. No. 892 of 2012, State Vs. Anwar @ Sunny alias Kauwal arising out of Case Crime No. 76 of 2012 Police Station Karchhana, District Allahabad whereby the accused appellant Anwar @ Sunny @ Kauwal who was acquitted of the charges under Section 363 I.P.C. but was found guilty under Section 366, 367 I.P.C. and was convicted on each count for seven years rigorous imprisonment with fine of Rs.10,000/- with default stipulation.
2. Filtering unnecessary details, the prosecution case in brief is that informant Keshaw Ram Gupta lodged a written report before the S.O. Karchhana stating that his daughter (name withheld by me) aged 15 years had gone to attend the call of nature on 6.4.2012 at 9-10 a.m. She has been enticed away by the accused appellant Anwar who lives opposite the house of the informant. He tried to trace her daughter but she could not be traced, hence, F.I.R. was lodged.
3. On the basis of this F.I.R., investigation was entrusted to S.I. Ram Sanehi Yadav (P.W.4). This case was registered in his presence at the police station. He copied the F.I.R. in the case diary, recorded the statements of the scribe of the chik and F.I.R., inspected the spot on the pointing out of the informant, prepared the site plan and proved it as Ext. Ka-6. After that he recorded the statements of Ram Milan and Amrit Lal Gupta. He recovered the victim along with the accused on 30.4.2012. On 2.5.2012 this witness P.W.4 S.I. Ram Sanehi Yadav perused the medical supplementary report and X-ray report of the victim and made the entries in the case diary. He also made an endorsement about the statement of the victim recorded under Section 164 Cr.P.C., and later on submitted charge sheet against the accused which was proved as Ext. Ka-8. P.W. 5 Constable Santosh Kumar prepared the chik report, which was proved as Ext. Ka-9. On the basis of this chik report, he wrote the G.D. copy of which was proved as Ext. Ka-10. The victim was medically examined by P.W. 3. Dr. Vandana Srivastava who did not find any external or internal injury on the body of the victim. She proved the medical report as Ext. Ka-2. She also proved the supplementary report Ext. Ka-3 and Ka-4 and the pathological report as Ext. Ka-5.
4. The prosecution examined as many as five witnesses. P.W.1 is informant Keshaw Ram Gupta who proved the written report as Ext. Ka-1. P.W. 2 is the victim. The statements of P.W. 3, P.W. 4 and P.W. 5 have been discussed earlier.
5. After closing the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. in which the accused while denying the occurrence stated that he was falsely implicated. However, he did not adduce any evidence.
6. After hearing counsel for the parties, the learned trial court returned the finding of guilt against the accused. Feeling aggrieved the accused has preferred this appeal.
7. I have heard the learned counsel for the parties and perused the trial court record.
8. The counsel for the appellant has submitted that the learned lower court has based its findings on inadmissible evidence, thus, the conviction is bad in the eyes of law.
9. Per contra the learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the victim and no corroboration was required when the testimony of the victim was clear, cogent and convincing. He has further contended that there was nothing to show that the victim has falsely implicated the accused and the appeal is liable to be dismissed.
10. Generally, the court does not ponder to find corroboration if the statement of the victim inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the victim and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the victim as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. The testimony of the victim has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
11. Counsel for the appellant has submitted that there is inordinate delay in lodging the F.I.R. Inasmuch as the occurrence is said to have been taken place on 6.4.2012 between 9-10 O'clock whereas report has been lodged on the third day, i.e., 9.4.2012 at 11.30 a.m. the distance of the police station from the place of occurrence being only two kilo meters. Thus, there is inordinate delay in lodging the F.I.R. Perusal of the F.I.R. (Ext.Ka-1) shows that on the date of occurrence itself, the applicant had come to know that his daughter was enticed away by the accused. The date as mentioned in Ext. Ka-1, the First Information Report, also has been overwritten. This is not a case where the informant felt that the reputation of the family was at stake, hence, he was hesitant in lodging the F.I.R. On the other hand, P.W.1 Keshav Ram Gupta has stated that he had left his brother with the victim on 6.7.2012, when he returned his brother told him that the victim had not returned. On the first day, the neighbourers told him that Pooja was enticed away by the accused appellant.
12. As far as the age of the victim is concerned, the occurrence is said to have taken place on 6.4.2012. In the F.I.R. the age of the victim has been mentioned to be 15 years as on 9.4.2012. P.W. 1 Keshaw Ram Gupta has also stated that at the time of occurrence the age of his daughter was about 15-16 years. The victim was also examined before the trial court in the year 2012 in which she stated her age to be 15 to 16 years. The procedure for determination of age has been mentioned in Rule 2012 of the Juvenile Justice (Care and Protection of Children) Act according to which if the matriculation certificate is available the Court can safely rely on it. In this regard, the victim (P.W.2) has specifically stated in her statement under Section 164 Cr.P.C., which is only a corroborative piece of evidence, that she had passed High School and she was a student of Intermediate. Although in her statement under Section 164 Cr.P.C., she has specified her date of birth to be 1.8.1996 but this fact was purposely withheld in the statement which was recorded before the court, in which she has stated in cross-examination as under:-
"eSaus eftLVªsV lkgc ls viuh mez yxHkx 15&16 lky crk;h FkhA eftLVªsV lkgc ds lkeus C;ku fn, yxHkx vkB eghus gks x;kA vc eSa ml fglko ls yxHkx 17 lky dh gks xbZ gwWA eSus vkt viuh mez vuqeku ls 15&16 lky crk;k gSA eSa igys ulZjh esa i<+h FkhA ml le; esjh D;k mez Fkh eq>s ugh ;kn gSA ogak ekLVj lkgc us vankt ls mez fy[k fn;k FkkA ulZjh Ldwy dk uke bl le; ;kn ugh gSA ml Ldwy esa eS 10 rd i<+h FkhA mlds ckn b.Vj esa ?kVok esa i<+h FkhA bu nks Ldwyksa ds vykok eS fdlh vU; Ldwy esa ugha i<+hA tc ?kVok esa esjk uke fy[kk;k x;k ml le; D;k mez Fkh ugh irk vkt Hkh eSus viuh mez vankt ls crkbZ gSA eq>s ugh ekywe fd vkt tks eSus mez crkbZ gSA mlesa 2&3 lky dk vUrj gks ldrk gSA xokg ls iwNk x;k fd mldh crkbZ gqbZ mez esa 3 lky dk vUrj gks ldrk gS rks mlus iqu% dgk fd eq>s ugha irkA eS ugh crk ldrh fd ?kVuk ds le; esjh mez 18 o"kZ Fkh fQj Lo;a dgk fd 18 o"kZ ugha FkhA"
13. Thus, as per the version of the prosecutrix herself, she had passed her High School and was studying in Intermediate but the matriculation certificate was not filed for reasons best known to the victim and her family members. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue and controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act. Notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence as has been laid down in Gopal, Krishnaji Ketkar vs Mahomed Haji Latif & Ors, 1968 AIR 1413.
14. Since the matriculation certificate is not on record, the Court will have to take the aid of the ossification test conducted by the doctor. According to the Ossification test as regards age is concerned, the radiological age of the victim was between 18 to 19 years. All the ediphysis of the right elbow, knee, ankle and shoulder were found fused. The Victim (P.W.2), while mentioning her age in her statement, has stated it to be 15 to 16 years but she failed in the test of cross-examination in as much as she was forced to admit that at the time of statement before the trial court, she was aged about 17 years.
15. Thus, I conclude that the victim was above 18 years of age and was capable of giving her consent. As regards the factual aspect of the incident itself is concerned, no doubt the unshaken sole testimony of the victim would be enough for conviction but if the testimony of the victim is unreliable, the court may seek for corroboration.
16. Victim (P.W.2) has stated that on 6.4.2012 when she had gone to attend the call of nature, the accused appellant compelled her to sit on his bike and took her to Narsinghpur (Madhya Pradesh) where she was raped. Before proceeding to examine her cross-examination, the statement of the victim in her examination-in-chief may be looked into in which she has stated that "mlds ckn vuoj vk/ks Ä.Vs esa dejs esa vk;k vkSj esjs diMs mrkjus vkSj eq>s ekjus ihVus yxkA esjs nksuksa gkFk ckW/k fn;k Fkk vkSj ikao Hkh cka/k fn;k FkkA vkSj esjs ikao vyx vyx pjikbZ ls cka/k fn;k vkSj esjs lkFk tcjnLrh lEcU/k cuk;kA" This story narrated by victim cannot be relied upon. In fact it is highly improbable storty and does not even appeal to the conscience that however, harsh a rapist may be, he would definitely not tie the feet of the victim to two separate cots because by doing so he would definitely be not in a position to rape the girl. If at all rapist wanted to tie the hands and feet of the victim, he could have done so by tying her on one cot but the victim in order to increase the gravity of the incident inducted two cots at that place. Even when the prosecution questioned this witness about her statement, she travelled to the extent of stating that the statement recorded by the Magistrate under Section 164 Cr.P.C. was not read over to her. She has stated that she did not give such a statement to the Magistrate, that she did not raise alarm and she was not assaulted, was also stated by her to the Magistrate. She has also resiled from her statement before the Magistrate that she was got seated in front of the accused on his bike. The victim was confronted with her previous statement given under Section 164 Cr.P.C. in which she had stated that the accused did not penetrate his penis into her vagina but the victim while denying the statement has stated that she did not give such statement to the Magistrate and could not say how it was recorded. In cross-examination this witness was further put to many contradictions in her statement under Section 164 Cr.P.C. and the statement recorded before the court but she denied her statements given before the Magistrate as stated earlier. The statements under Section 164 Cr.P.C. are only previous statements but the confidence and courage with which the girl exaggerated things raises eye-brow on the whole occurrence. She has admitted that during her stay for 22 days with the accused, she did not raise any alarm anywhere. Trying to justify her conduct, she has stated that she never talked to Anwar whereas her father Keshaw Ram Gupta (P.W.1) has stated that sometimes the victim and the accused used to to talk to each other. A photograph was shown to the victim (P.W. 2) who admitted that she was seen in the photograph but about the boy in the photograph, she showed her ignorance but later on she had to admit that the boy along with her in the photograph was the appellant. She herself tried to explain that she was not putting sindoor in her parting in the photo but there appears to be a red mark on the forehead in the photo.
17. The aforesaid acts or omissions on the part of the victim cannot be said to be minor contradiction as they are very relevant pieces of evidence. Because of such contradictions, an agile and active court can differentiate between genuine cases from the frivolous and concocted ones. The role of courts in such cases is to see whether the evidence available before the court is enough and cogent to prove the guilt of the accused. Thus, the credibility of the victim stands shaken. She had travelled to quite some places with the accused but did not raise alarm. There is no version of the prosecution that the appellant was armed with any weapon. The above are some salient features of the lopsided story of the prosecutrix, more so when it has not been corroborated by any other evidence. On account of very serious contradictions in the statement of the victim, it could be safely concluded that she was certainly not telling the truth. It is needless to say that solitary evidence of the prosecutrix to bring home the charge of abduction and commission of rape by the appellant does not inspire confidence and is not of sterling sketch. In my opinion, it is neither prudent nor safe to hold the appellant guilty of commission of the said offence.
18. Thus, on the basis of what has been said and discussed above, leads me to the conclusion that the prosecution miserably failed to prove the charges against the accused. The victim being a consenting party, the appeal is liable to be allowed and the conviction and sentence under appeal are liable to be set aside.
19. Accordingly, the appeal is allowed. The Judgment passed by Sri Gajendra Singh, learned Additional Sessions Judge, Court No. 3, Allahabad dated 1.7.2014 passed in S.T. No. 892 of 2012, State Vs. Anwar @ Sunny alias Kauwal arising out of Case Crime No. 76 of 2012 Police Station Karchhana, District Allahabad whereby the accused appellant has been convicted and sentenced, is hereby set aside. The appellant is acquitted for the charges levelled against him.
20. The accused is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. Shall be complied with.
21. Let copy of the Judgment be certified to the court concerned.
Order date:-1.2.2016 Ram Murti