1. Challenge in this appeal is to the judgment and order dated 23.08.1996, passed by Second Additional Sessions Judge, Barabanki, in Sessions Trial No. 417 of 1992 (State vs. Hari Shankar Chaurasiya and others), registered as Case Crime No. 775 of 1991, under Sections 342, 366, 376 I.P.C., Police station Kotwali, District Barabanki, whereby, all the appellants were acquitted for the charges under Section 366 I.P.C. the accused were found guilty and sentenced for 5 years' rigorous imprisonment under Section 376 I.P.C. coupled with a fine of Rs. 1000/- each with default stipulation. Each of the accused was further sentenced to 3 months rigorous imprisonment under Section 342 I.P.C.
2. Filtering out unnecessary details, the prosecution case in brief is that a report was lodged by one Lalloo Awasthi stating that at the flat of Shiv Karan Singh Chaurasiya, transport company is being run. In one of the rooms of the transport company, the servants of Shiv Karan Singh namely Vijay and Bharat have closed the room and committed rape on a girl. The girl is raising alarm from inside the room. The informant Lalloo Awasthi made his companion Udai Narayan stand near the place of occurrence and came to inform the police.
3. On the basis of this information received by the police on 15.09.1991, the police proceeded for the spot. Hari Shanker Chaurasiya was found at the place of incident. The other room was locked from outside. Hari Shanker Chaurasiya opened the lock and a girl was found in the room. Both the accused Vijay Sharma and Bharat fled away. The victim told the police personnel that the accused had closed her in the room and had raped her. The accused Hari Shanker Chaurasiya was apprehended on the spot and recovery memo was prepared. On the basis of the information received by the police by Lalloo Awasthi, PW-1 C.P. Kailash Nath scribed the chik report which was proved by this witness as Exhibit Ka-1. He further proved the copy of G.D. as Exhibit Ka-2. Dr. Atika Sabbuddin PW-2 has medically examined the victim. She did not find any external or internal injuries on the body of the victim. She proved the medical report as Exhibit Ka-3. The victim was sent for determination of age and the radio logical report was proved by this witness as Exhibit Ka-4. Further this witness proved the pathological report as Exhibit Ka-5.
4. The investigation of the matter was entrusted to PW-5 S.I. O.P. Mishra who coped the chik report in the case diary. He went to the spot and recovered the victim in the presence of the witness Udai Narain and Sudhir Kumar. He prepared the recovery memo which was proved by this witness as Exhibit Ka-4. Hari Shanker Chaurasiya, who was arrested on the spot, his statement was recorded, thereafter the statement of the witnesses were recorded. Further this witness inspected the spot at the pointing out of the victim and proved the site plan as Exhibit Ka-7. He recorded the statements of Sudheer and Udai Narain. On 16.09.1991, the victim was sent for medical examination with the lady constable. On 05.10.1991, copy of the statement of the victim under Section 164 Cr.P.C. was received by this witness. The accused Vijay Sharma and Bharat Bhushan surrendered before the court on 30.09.1991. Their statements were recorded on the same day. The application for obtaining copy of the statement under Section 164 Cr.P.C. was proved by this witness as Exhibit Ka-8. Investigation ended into a charge sheet which was proved by this witness as Exhibit Ka-9.
5. PW-3 is the victim who has stated about the incident. PW-4 is Lalloo who is said to be the scribe. This witness was declared hostile by the prosecution who proceed to cross-examine this witness. PW-5 is S.I. O.P. Mishra. PW-6 is Munna @ Sudhir who has stated that on 15.09.1991 at 06:00 P.M., he saw the premises of Chaurasiya Transport Company, crowded. He was alone. No girl was recovered in his presence from the premises. He was also declared hostile and cross-examined by the prosecution. After examining as many as six witnesses, the prosecution closed its evidence.
6. The trial court proceeded to record the statement of the accused under Section 313 Cr.P.C. in which they denied the occurrence. The accused Hari Shanker Chaurasiya has stated that he was tenant of flat no. 1 which was in the tenancy of Chaurasiya Transport and Shiv Karan was the land lord. Shiv Karan wanted to get the property vacated for which this accused was not willing, hence he was falsely implicated. The accused Bharat has stated that the victim wanted a gas connection from him and wanted to take a hot plate and cylinder on credit but when he refused, he was falsely implicated. The accused Vijay while denying the occurrence has stated that the victim wanted to join a job in Narayan Gas Service but the accused Vijay was a hindrance for the victim to get the job. The victim threatened to see him and lodged a false case against him. The accused have not produced any evidence in defence.
7. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment.
8. Feeling aggrieved against the conviction the accused have come up in appeal.
9. Heard Sri Dinesh D. Tiwari, Advocate holding brief of Sri Ram Naresh Shukla, Advocate as well as Sri Vijay Sharma, learned counsel for the appellants, Sri Vivek Tiwari, learned Additional Government Advocate for the opposite party and perused the lower court record.
10. Appellant No. 1 Hari Shanker Chaurasiya died during the pendency of this appeal, hence the appeal in respect of appellant Hari Shanker Chaurasiya was abated.
11. Counsel for the appellants has submitted that the evidence of the victim is shaky, unreliable, unworthy of credence, not supported by the medical evidence. Besides the story as set forth by the victim cannot be relied upon. Further he has submitted that the learned lower court has relied on unreliable evidence and the accused was wrongly convicted. Consequently the appeal is liable to be allowed.
12. Per contra, learned A.G.A. has submitted that minor contradictions which do not strike at the root of the case are bound to occur in the statement of natural witnesses. In this case, the evidence is clinching and trust-worthy. The motive for false implication has not been proved and the appeal merits dismissal.
13. As far as the lodging of the report is concerned, this is a peculiar case in which report was neither lodged by the victim nor by any of her family members. Infact, a perusal of the chik report Exhibit Ka-1 reveals that one Lalloo Awasthi PW-4 informed the police that Vijay Pal and Bharat who are servants of Shiv Karan Vidhayak are raping a girl inside the premises where Chaurasiya Transport Company is being run. It was further mentioned that the girl was locked in the room and crying for help. The informant made his companion Udai Narain stand at the place of occurrence and came to lodge the report. This report is alleged to have been lodged on 15.09.1991 at 17:30 hrs. The police station being 2 Kms. away from the place of occurrence. This informant Lalloo was produced by the prosecution as PW-4 who has stated that on 15.09.1991 at 05:00 P.M., he had gone to the police station to lodge the report regarding the theft of his cow. The Kotwal said that his cow would be found but he should sign a blank paper on which report would be written. This witness has further stated that when he signed the blank paper and came home, later on his cow was traced. The witness identified his signatures on the report, but denied its contents. He was declared hostile by the prosecution who proceeded to cross-examined him. He denied the suggestion of the prosecution and stated that he was not stating incorrect facts due to the pressure of Vidhayak Hari Shanker. Thus, as per statement of PW-4 Lalloo, the lodging of the report by the informant Lalloo itself collapses.
14. Learned A.G.A. has submitted that as per the recovery memo prepared in the presence of Udai Narain Pandey, witness Sudhir Kumar and police personnel, the victim was recovered from the premises of Chaurasiya Transport Company's room in which the victim was locked. Its keys were held by Hari Shanker, appellant no. 1 who was found at the spot and he opened the lock.
15. This recovery memo does not bear the signatures of Hari Shanker. Besides for reasons best known to the prosecution, the lock and keys were not taken into possession by the I.O. This is a glaring feature, on the basis of which, this recovery memo and the recovery is doubtful. In the statement of PW-6 Munna @ Sudhir he has stated that he went alone to the office of Chaurasiya Transport and no girl was recovered from that premises in his presence. Although this witness has admitted his signatures on the recovery memo Exhibit Ka-6 but he has stated that he signed on blank papers. One reason why even otherwise this report alleged to have been submitted by Lalloo PW-4 is unreliable is the reason that it has been mentioned that Bharat and Vijay were inside the room and a girl was shouting from inside. If the room would have been locked from outside by the co-accused Hari shanker, there was no reason how the informant could have known as to who was inside the room. It can be believed that the informant heard the shrieks of the girl but the presence of Bharat and Vijay inside the room again makes the whole story doubtful and gives support to the statement of the Lalloo PW-4 that he did not inform that what was written in the first information report and his signatures were obtained on blank papers. Thus, the first information report which is the backbone of the case, practically looses its existence.
16. Even the recovery of the victim does not stand proved, inasmuch as, the victim has stated that when she raised alarm, one or two persons came and asked the matter at which Chaurisiya asked to manage their own affairs. This is unnatural conduct and contrary to the prosecution case.
17. The victim PW-3 has stated that after rape, all the three accused left her in the room and locked the room from outside. When she was shouting from inside Chaurisiya told them that Vijay and Bharat had told him not to set her free. There is no reason, if all the three had raped her, why they would keep her locked and why they would not set her free. Thus, the alleged recovery of the victim from the room is also doubtful.
18. As far as, the rape by all the three accused on the victim is concerned, it is trite law that in cases of rape, the solitary testimony of the victim can be relied upon. Conviction can be based thereon if the statement inspires confidence and is reliable. Generally courts do not seek for corroboration of the statement of the prosecutrix. I am aware that in a case of rape, the testimony of a prosecutrix stands on a par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecturix inspires confidence and appears to be credible as has been laid down in (2010) 2 Supreme Court Cases 9 (Wahid Khan vs. State of Madhya Pradesh).
19. In the aforesaid backdrop, keeping in view the fact that as per the victim, she was raped by three persons, twice by each and one of the accused also slapped her, thus, in this case corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.
20. The victim has come up with the case of gang rape by three persons and I think, no doubt that a woman, howsoever, dissolute she may be, would not ordinarily consent to insulting, humiliating and repulsive act of sexual intercourse on her by a number of persons, as if she were a chattel for public use.
21. Law recognizes that a woman even of easy virtue, or even a whore for that matter, has personal dignity and honour. She cannot be violated. It must however be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals.
22. Reverting to the case in hand, the statement of the victim was recorded under Section 164 Cr.P.C. which was admitted by the victim that when she reached the Transport of Hari Shanker Chaurisiya Vidhayak, he opened the lock, pushed her inside and he himself came into room. Bharat locked the room from outside but when her statement was recorded in court she has stated that when she reached Chaurasiya Transport, she was asked to sit. As soon as, she entered the room Vijay and Bharat closed the door from outside and they also came inside the room and raped her. Although in the statement under Section 164 Cr.P.C., she has stated that initially Vijay raped her, then Bharat raped her and later on Hari Shanker Chaurasiya raped her. In this context in AIR 2010 Supreme Court page 3813, Musauddin Ahmed vs. State of Assam, the Hon'ble Apex Court has held as under:-
"If there are contradictions in the statements of the victim recorded under Section 164 Cr.P.C. and that recorded before the trial court it would cause a dent in the prosecution case."
23. I am aware that the statement of the victim recorded under Section 164 Cr.P.C., is only a previous statement of the victim but the contradictions in the statement of the victim recorded under Section 164 Cr.P.C. and that recorded before the trial court are contradictory to each other which strike at the root of the case.
24. The victim PW-3 in her statement before the court has stated that initially Vijay and Bharat raped her. After that they left the room and Hari Shanker came in the room and raped her and while she was being raped Vijay slapped her. Further she has stated that after raping her, all the three accused left the room and locked the room from outside. This witness had to undergo the test of cross-examination in which she has stated that the accused Vijay and Bharat were known to her from before but Hari Shanker was not known to her. If the accused Hari Shanker Chaurasiya was not known to her, a million dollar question arises as to how she came to know about the identity of the accused Hari Shanker Chaurisiya.
25. In cross-examination PW-3, the victim has stated that there were houses in front of the house of Chaurasiya and there was a road. On both the sides of the road, there were houses whose doors opened on the road. If this witness was unknown to Chaurasiya, it is strange how she could describe the topography of the house of Chaurasiya and his neighbours. The victim has further stated that:-
"pkSjfl;k ds DokVZj esa esjs lkFk tks ckykRdkj gqvk mlesa 2&3 ?kaVs yxsA eqfYteku vyx&vyx esjs lkFk ml dejs esa jgs Fks vkSj ckykRdkj djus ds ckn Hkh eq>s fudyus ugha fn;k FkkA izR;sd eqfYte us esjs lkFk djhc 1 ?kaVs jgk Fkk A D;ksafd gkFkk&ikbZ gksrh jgh vkSj le; dVrk jgkA lHkh eqfTyeku us esjs lkFk 1&1 ckj ls vf/kd ckykRdkj fd;kA gj ,d us 2&2 ckj ckykRdkj fd;kA igys ckykRdkj ds ckn nwljs ckykRdkj esa fdruk varj jgk eSa ugha crk ldrhA"
26. Thus, as per the version of this witness, she was raped by three accused appellants six times, during this period of three hours, her mouth was gagged and she was slapped by one of the accused. She has also stated that when she was slapped, her hands were caught and she received marks on her cheek, when they slapped her. They could not obtain her consent for rape and thus, forcibly raped her and often her mouth was pressed due to which she could not scream. If the victim would have been raped six times by three accused in three hours on gun point, the situation would have been different. But in this case, she is said to have been raped six times by three unarmed people for three hours.
27. Perusal of the record shows that as per the prosecution case, the occurrence took place on 15.09.1991 some times between 11:00 A.M. to 05:00 P.M. The victim was medically examined by Dr. Atika Sabbuddin, PW-2 on 16.09.1991 at 12:40 P.M. i.e. within 24 hours but as per the medical report and as per her statement, the doctor did not find any external or internal injury on the body of the victim. Although, the victim has stated that she had swelling on her thigh and back but has stated that at the time of medical examination her swelling had vanished.
28. In Radhu vs. State of Madhya Pradesh, (2007) 12 SCC 57, the Hon'ble Apex Court has observed as under:-
"It is well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
29. I would not loose sight of the fact that the victim has stated that she was raped on a 'Takhat'.
30. Even if injuries on the back are over looked due to statement of the victim who has stated that 'Takhat' was bearing a mattress and a bed sheet but injuries on other parts of the body and the cheek should have definitely been found by the doctor.
31. PW-5 S.I. O.P. Mishra has stated that the clothes of the victim could not be taken into possession because the victim started weeping and said that she did not have other clothes to wear but the victim PW-3 has specifically stated that the lady Constable took her clothes into possession. She continued to wear the same clothes for three days.
32. Thus, the statement of the victim and the story narrated by the victim is full of contradictions, unreliable, unworthy of credence and does not inspire confidence. The unreliable and contradictory statement of the victim coupled with the absence of the injuries which were said to have been sustained by the victim renders the whole prosecution case improbable and doubtful.
33. The trial court has committed grave illegality in convicting the accused persons on the basis of shaky and unreliable evidence due to which the appeal is liable to be allowed.
34. Accordingly the appeal is allowed.
35. The impugned judgment and order dated 23.08.1996, passed by Second Additional Sessions Judge, Barabanki, in Sessions Trial No. 417 of 1992 (State vs. Hari Shankar Chaurasiya and others), registered as Case Crime No. 775 of 1991, under Sections 342, 366, 376 I.P.C., Police Station Kotwali, District Barabanki, as far as, it relates to the conviction of the appellants, is hereby set aside.
36. The appellants namely Vijay Sharma and Bharat are in Jail. They shall be released forthwith in this case. However, the appellants are directed to comply with the provisions of Section 437-A Cr.P.C.
37. Let a copy of this judgment be sent to the trial court concerned for compliance.
Order Date :- 24.10.2016 sailesh