1. Since both the afore-captioned criminal appeals have been filed in the same case crime number, hence they are being decided by this common order.
2. Challenge in these appeals is to the judgment and order dated 30.05.2008 passed by the learned Additional Sessions Judge, (Fast Track Court), Basti in Sessions Trial No. 111 of 2006 (State vs Sunil Pandey and others) arising out of Case Crime No. 25 of 2007, under sections 342, 328, 376, 323, 506 IPC, Police Station Munderwa, District Basti, whereby the accused Sunil Pandey and Lorik Kohar have been convicted and sentenced to ten years' rigorous imprisonment and a fine of Rs. 2000/- each under section 376 IPC; five years' rigorous imprisonment and a fine of Rs. 500/- each under section 328/34 IPC; six month's rigorous imprisonment each under section 342/34 IPC; six months' rigorous imprisonment each under section 323/34 IPC and two years' rigorous imprisonment each under section 506 IPC with default stipulation. However, the accused Raj Kapoor was acquitted of all the charges.
3. The prosecution case in brief is that an application was given by the informant-victim to the SSP stating that on 07.01.2007 at 6.00 p.m., she had gone behind her house in the sugarcane field to attend the call of nature. In the field, accused Sunil Pandey, Lorik Kohar and Raj Kapoor came. Accused Sunil Pandey pressed her mouth. They kept a handkerchief on her nose, which was having some medicine due to which, she became unconscious and when she gained consciousness, she was lying naked in the bed-room and all three were raping her one by one. They were not permitting her to come out from room and threatened that if she would raise alarm, she would be killed. She was forcibly detained in that room for six days and she was constantly raped during that period. On 13.01.2007, she somehow escaped from that place, but all the three caught her and assaulted her. At 2, O' clock in the night, she again fled away and came out. She was detained in Soni Hotel, opposite Kanpur railway station. An unknown old lady saw her in pitiable condition, gave her fare and she came home. The accused persons were consulting with each other that if they get a purchaser, they would sell her. She came back her house on 14.01.2007 from where, she went to the police station with her father. The police got her medically examined. Hence, she submitted an application before the SSP, Basti on 18.01.2007.
4. Investigation of the case was entrusted to PW-4, S.I., Raj Bali, who recorded the statement of Constable Clerk. He recorded the statement of informant. He interrogated Sheela Devi. At the pointing out of the informant, he inspected the spot and prepared the site plan, which was proved by this witness as Ext. Ka-4. He further recorded the statement of the accused persons. The investigation ended into a charge sheet, which was proved by this witness as Ext. Ka-5.
5. Dr. Ram Prakash, PW-3 examined the injuries on the body of the victim and found the following injuries on her body:
1. Traumatic swelling 5 c.m. X 4 c.m. on outer back of skull oxipit.
2. Contused swelling 8 c.m. X 3 c.m. over altrolateral aspect of left arm, 4 cm above the left elbow joint.
3. Contused swelling 10 c.m. X 8 c.m. above back of left hand with wrist kept under observation, advised X-ray left hand with wrist.
4. Contusion 3 c.m. X 2 c.m. on the left side leg, 6 c.m. below the left knee joint kept under observation. Advised X-ray left leg.
5. Abraded contusion 5 c.m. X 4 c.m. with swelling on the back of left heel.
6. Contusion 4 c.m. X 3 c.m. on the dorsal of left, 4 c.m. below the left ankle joint.
7. Contused swelling 3 c.m X 2 c.m. on the dorsal of right foot, 4 c.m. below the right ankle joint.
8. Abrasion 6 c.m. X 4 c.m. right side back over lateral aspect of abdomen, 3 c.m. above the right iliac crest.
9. Contusion 6 c.m. X 4 c.m. on the left side back, 10 c.m. below left inferior angle of scapula.
The doctor has proved the medical report as Ext. Ka-2.
6. PW-5 is Constable 308, Shiv Poojan, who proved the chik report as Ext. Ka-6, copy of the G.D. as Ext. Ka-7.
7. PW-6, Dr. Alka Shukla, who internally examined the victim and proved the medical report as Ext. ka-9, pathological report as Ext. Ka-10 and the supplementary report as Ext. Ka -11.
8. Besides these witnesses, the prosecution has examined PW-1, the victim of the case, who proved the written report as Ext. Ka-1. PW-2 is Sheela, mother of the victim.
9. After close of prosecution evidence, the statement of accused persons were recorded under section 313 Cr.P.C., in which they denied the occurrence and claimed to be tried.
8. The learned lower court, after perusing the record and hearing the counsel for the parties, convicted the appellants as stated in para 2 of the Judgment.
10. Feeling aggrieved the accused have come up in appeal.
11. I have heard Shri Indra Bhan Singh and Shri Ganesh Kumar Verma, learned counsel for the appellants, learned Additional Government Advocate for the State-respondent and perused the trial court record.
12. Learned counsel for the appellants have submitted that there is inordinate delay in lodging the FIR because the victim being a young girl was missing from her house since 07.01.2007, but no report was lodged by anybody till 18.01.2007, when the victim herself lodged the report. Thus, there is delay of about 11 days in lodging the report. The distance of the police station being 2 kms from the place of occurrence. This delay is fatal for the prosecution case. In this regard, learned counsel for the appellants have placed reliance upon the decision in the case of Md. Ali @ Guddu vs State of U.P. reported in 2015 (7) SCC 272, in which the Hon'ble Apex Court has observed that if the victim was missing from the house since many days, but the mother lodged report only after about 11 days, it would be fatal because the mother, who is expected to have necessitous concern, could have gone to the police station to lodge a missing report, which could have prompted the Investigating Officer to act. It baffles the common sense that the mother after searching in the neighbourhood for some unfathomable reason that defeats the basic human prudence approached the police station quite belatedly. In the instant case, the mother did not approach, but the victim herself went to the police station to lodge the FIR. It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. Regard has to be had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle may give rise to appeal, but in the present case, since even a missing report was not lodged, the delay is treated to be fatal because the informant herself has stated that she had come back on 14.01.2007. The endorsement of the complaint itself indicates that the application is dated 17.01.2007, but it was presented on 18.01.2007. What prevented the informant from lodging the report for four days is a question, which remained unanswered during the trial. Thus, the aforesaid inordinate delay has caused a dent in the prosecution case.
13. As far as the evidence of the victim is concerned, 'It is true that in a case of rape, the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter as has been held in by the Hon'ble Apex Court in the case of Tameezuddin @ Tammu v. State (NCT of Delhi), reported in (2009) 15 SCC 566.
14. Coming to the statement of the victim, who is the star witness of the prosecution. In her examination-in-chief, while supporting the prosecution version, she has stated that when she went to attend the call of nature in the sugarcane field, Sunil Pandey pressed her mouth. The accused put a handkerchief on her nose, due to which, she became unconscious. When she regained consciousness, she was lying in 'good' room and she was naked in the room. All the three accused raped against her wishes. When she used to resist, she was beaten. She was raped continuously for six days. On one occasion, she tried to flee away, but she was caught by the accused and she assaulted. On the seventh day, all the three accused drunk liquor and slept and the victim got an opportunity, she came out of the room and saw that she was in a hotel opposite the railway station. Suddenly, she met an old woman there, She gave the fare to the victim and the victim came back home by bus. She told the occurrence to the police when she came back. Her statement was also recorded under section 164 Cr.P.C. This witness has stated that prior to the occurrence, she did not know Sunil Pandey and also the other accused, but mentioning of the names, parentage and complete address of the accused in the FIR makes the statement of this witness doubt. She has stated that when she was picked up, all the three accused were hidden in the field, hence, she did not raise any alarm. If the accused would have knowledge that the victim would come in the field, only then there was occasion for them to hide in the field, otherwise there was no reason why they would hide in the field, when they had no knowledge that the victim would come in the field. Further, the victim has stated that since she was unconscious, she did not eat or take water. I cannot understand how an unconscious girl was brought from her home residing at district Basti to Kanpur in an unconscious state. She further stated that when she came out of Soni Hotel, she met the police, but she did not tell the police personnel anything. She has contradicted herself by saying that when she was picked up by the accused, she was unconscious and does not know what transpired with her while she was unconscious. She has tried to improve her statement by stating that the accused had tied her mouth. I do not understand the necessity of tying the mouth of an unconscious girl, besides the victim has further stated that when she went to attend the call of nature, Raj Kappor did not lift her. Three accused, who lifted the victim, Raj Kappor was not amongst the three. She did not know and recognise Raj Kapoor since before, neither Raj Kapoor lifted her nor he raped her, nor he made her unconscious. She has further stated that Raj Kapoor did not rape her at Soni Hotel. The accused Raj Kapoor was present in court was wholly innocent. She has further gone to the extent by saying that "eS S.P. lkgc dks nj[kkLr nh rks mlesa jktdqekj gkftj vnkyr ds dqN nq'euksa ds dgus ij fy[kk nh FkhA" She has stated the name of Raj Kapoor in her statement under section 164 Cr.P.C. due to some misunderstanding and due the the pressure of the police. She has stated that the statement given by her before the Magistrate was correct. If the statement of this witness recorded under section 164 Cr.P.C. is perused, it reveals that before the Magistrate, she has stated that Raj Kapoor was also involved in the incident. She had implicated Raj Kapoor incorrectly in the statement under section 164 Cr.P.C. before the Magistrate. There was no reason to rely on her explanation that she had named Raj Kapoor on the instigation of his enemies. Thus, it is difficult to accept the testimony of the victim on its face value.
15. Although, the medical report of the victim is on record, but I am not convinced that these injuries are result of assault by the accused because the victim can be termed to be a lair. Besides the victim was medically examined on 15.01.2007, all the injuries were simple, except injury Nos. 3 and 4, for which X-ray was advised, but nothing abnormal was detected in the X-ray report. Thus, all the injuries can be termed to be simple, superficial and self-inflicted.
16. PW-2 is Sheela, the mother of the victim, who has stated that due to reputation, she did not lodge missing report and her daughter came back home after a week. She has stated that all the three accused made her daughter unconscious, took her away and raped her. This is against the evidence of the victim. Although, in cross-examination, this witness has stated that the accused Raj Kapoor, in the present case, was not involved in the incident, which makes it clear that both the daughter and the mother were trying to save Raj Kapoor and had left no stone unturned to speak lies before the court. If the gang rape would have been committed on the victim for six days by three people and she had already been medically examined on 15.1.2007, there was no reason why she could not lodge the written report on 15.01.2007. The doctor, who internally examined the victim, namely, PW-6 Dr. Alka Shukla, did not find any internal injury on the body of the victim. If she would have been forcibly raped by three people continuously by six days, swelling and redness on the vagina should have been found by the doctor. Thus, the internal medical report does not corroborate the prosecution version.
17. Although, the learned lower court has failed to discuss this aspect of the matter, but two documents were filed by the appellants, which were numbered as Ext. Ka-2 and this paper was not taken into consideration by the court below because this is an NCR lodged by Ram Samujh Yadav, father of the victim against the appellant Sunil Pandey on 12.01.2007. Hence, possibility of enmity with the accused cannot be ruled out, inasmuch as the present occurrence is said to have been taken place on 07.01.2007, but the report was lodged after the lodging of the NCR by father of the victim. The statement of the victim recorded under section 164 Cr.P.C. has also not supported to the statement of the victim before the trial court, inasmuch as in the statement under section 164 Cr.P.C., she has named all the three accused, whereas before the court initially she named all the accused, but subsequently, she stated that accused Raj Kapoor was not involved in the incident, but she was raped only by Sunil Pandey and Lorik Kohar.
18. Thus, complete testimony of the prosecutrix being unworthy of credence and unreliable and bundle of lies could not form the basis for conviction of the accused on the basis of illegal, inadmissible evidence and also without framing of charges against some of the accused.
19. 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 are entitled to be acquitted and the appeals are liable to be allowed.
20. Hence, the impugned conviction and sentence dated 30.05.2008 passed by the learned Additional Sessions Judge, (Fast Track Court), Basti in Sessions Trial No. 111 of 2006 (State vs Sunil Pandey and others) arising out of Case Crime No. 25 of 2007, under sections 376, 328/34, 342/34, 323/34 and 506 IPC, Police Station Munderwa, district Basti against appellants Sunil Pandey and Lorik Kohar, is hereby set-aside.
21. Accordingly, the appeals are allowed.
22. The appellants-Sunil Pandey and Lorik Kohar are in jail. They shall be released forthwith unless wanted in any other case. The appellants are directed to comply with the provision of Section 437-A Cr.P.C. forthwith.
23. Let a copy of this order be sent to the Trial court concerned.
Order Date :- 12.4.2016 Sazia