1. Challenge in this appeal is to the judgment and order dated 30.5.2011 passed by Additional Sessions Judge, Maharajganj in Sessions Trial No. 31 of 2008 (State of U.P. Vs. Ram Deo Chamar) arising out of Case Crime No. 781 of 2007 under Sections 452, 376, 323, 506 IPC, Police Station-Nautanwan, District-Mahrajganj, whereby the accused was found guilty and sentenced to 3 years R.I. and fine of Rs.2000/- under section 452 I.P.C.; 10 years R.I. and fine of Rs.1000/- under section 376 I.P.C.; 6 months R.I. under section 323 IPC and 2 years R.I. under section 506 IPC and further six months imprisonment in case of default of payment of fine.
2. The facts culled out from the record in a nut shell are that Subhawati wife of Lakshman Harijan is informant who had no issue. Hence, she married her real sister the victim to her husband so that he could have children. The victim was deaf and dumb both. The sisters used to live with their husband in one house. On 02.11.2007 at about 10.00 A.M., the victim was alone in house. Both her children were playing out side of the house and at that time Ram Deo taking the benefit of deaf and dumb of the victim entered into the house of informant and started committing rape on the victim. The informant came back from her shop which is situated near Mata Ka Mandir. As soon as she entered in the house, she saw the appellant raping her sister.
3. She raised alarm and caught the accused. On alarm being raised by informant, neighbour ladies Sonrahi, Bhagtin, Reenu daughter of Hari, Rambha daughter of Ram Samujh Yadav came at which Ram Deo assaulted the informant on her stomach with her leg and fled away. The accused came back to the door of the informant and said that if she would lodge the FIR, he will kill them. Seeking an opportunity, she came to the police station and lodged the report. Chick report was scribed by constable Markandey Upadhya, P.W. 7. He proved the chick report as Ka-4 and copy of G.D. as Ext. Ka-5.
4. Investigation of case was entrusted to P.W. 8, Sri Radha Mohan Singh, who recorded the statements of witnesses and send the victim for her medical examination. Site plan as Ext. Ka-6 was proved by the witness. The accused was taken in police custody remand. Supplementary report was copied in the case diary. Investigation ended into a charge sheet which was proved by this witness as Ext. Ka-7.
5. The prosecution examined as many as 8 witnesses. P.W. 1 is Subhawati, informant who is also sister of victim. P.W. 2 is the victim, P.W. 3 is Shambha, who is said to have seen the occurrence. P.W. 4 is Sonrahi, who is also said to have seen the occurrence. P.W. 5 is Reenu, who is also witness of fact. P.W. 6 is Dr. Aabha Gupta, who medically examined the victim. As per doctor's report neither external nor internal part of victim was found injured. Medical report was proved as Ext. Ka-2 and supplementary report as Ext. Ka-3. The statement of P.W.7, Markandey Upadhya and P.W. 8, Radha Mohan have been discussed by me earlier.
6. After conclusion of prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. in which he denied the occurrence. He has further stated that the informant has illicit relation with the father of son-in-law of brother of accused, Jhabbar. The accused used to resist the illicit. Hence he was falsely implicated. However, no defence witness was adduced.
7. After hearing learned counsel for the parties, learned trial court convicted the accused as stated in paragraph 1 of the judgment.
8. Feeling aggrieved, accused-appellant has come up in this appeal.
9. I have heard Sri Pradeep Kumar VI, learned counsel for the appellant, learned A.G.A. For the State and perused the record.
10. The submission of learned counsel for the appellant is that the learned trial court has convicted the accused in no evidence case.
11. Per contra, learned A.G.A. has submitted that there was sufficient evidence to convict the accused and the judgment is well discussed and the appeal is liable to be set aside.
12. As far as occurrence is concerned, occurrence is said to have committed on 02.11.2007 at about 10.00 A.M. Report was lodged on 06.11.2007 at about 12.10 P.M. The distance of police station from the place of occurrence is 6 km. Thus, there is delay of about 4 days in lodging the F.I.R. No doubt, delay in lodging the prosecution case is always not fatal in a case of rape, but as far as delay in lodging the F.I.R. is concerned in the present case, it is not one in which informant has said that the reputation of the family was at stake due to which the informant was hesitant to lodge the F.I.R. In fact, she has stated that she did not go to lodge the FIR because Ram Deo had threatened her. This would not suffice because there is nothing on record to show that Ram Deo threatened. Even otherwise, it is not distinguishable that a man would rape a lady at 10.00 A.M. in her own house who is seen by many ladies and would return back to the house just to threaten the lady not to lodge the F.I.R.
13. In State of Himanchal Pradesh Vs. Prem Singh, A.I.R. 2009 (SC) page 1010, the Hon'ble Apex Court has considered the issue at length and observed as under:
"This is trite law that Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/ informant is found to be unreliable, the prosecution case has to be rejected in its entirety. "
14. In 2005 SCC (Criminal) page 410 Sri Narayan Shah & another Vs. State of Tripura, the Hon'ble Apex Court has held that:
"Mere delay in lodging the FIR is really of no consequence, if the reason is explained because in cases of rape generally the family remains reluctant to report the matter to the police to save shame and prestige of the family."
15. Thus, the delay in lodging the FIR in the present case creates a shadow of doubt on the prosecution case. This is a strange case in which the elder sister was married to a man. Since she has no issue, hence she used to her younger sister just to get children and married her helpless deaf and dumb sister to her own husband without divorcing him. This witness has stated that the incident of rape was witnessed by Reenu and other witnesses.
16. Although in cases of rape sole testimony of witnesses of victim is enough to convict the accused if the evidence is reliable and trustworthy. It is well settled law that finding of guilt in the case of rape can be based on uncorroborated statement of the prosecutrix. The very nature of the offence makes it difficult to get the direct corroboration of offence.
17. Law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of any witness, the Court may classify the oral testimony in three categories namely (I) wholly reliable (ii) unreliable and (iii) neither wholly reliable nor un-wholly reliable. In the first two categories, there may be no difficulty regarding such matter, but the difficulty arise in third category of cases. The Court has to look for corroboration in material, particularly by reliable testimony or direct or circumstantial before acting upon the testimony of a single witness. The present case is not a case of sole evidence, but in this case there are many eye witnesses. In fact, P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 are witnesses of fact of rape. P.W. 1-Subhawati has stated that P.W. 3-Shambha, P.W. 4-Sonrahi and P.W.5- Reenu saw the incident. Shambha was examined before the Court as P.W. 3 who has stated that since Subhawati had no children, the victim and Subhawati were living with one and same house together. The victim is deaf and dumb but the victim never witnessed any occurrence of rape. She was declared hostile by the prosecution, who proceeded to cross-examine her, but even in her cross examination, there is nothing to help the prosecution. Same is the position with Sonrahi-P.W. 4, who has stated that neither she heard any alarm nor she saw Ram Deo raping the victim nor she saw the accused assaulting Subhawati. This witness was also declared hostile who proceeded to cross-examine her but this witness also did not come to the rescue of prosecution.
18. P.W. 5-Reenu has stated that the victim is deaf and dumb since birth. She has absolutely no knowledge about the incident. She did not go to the house of victim nor she saw the accused there.
19. Finally coming to the statement of victim, P.W. 2 who can be rated as the star witness of the prosecution case. Learned trial court in its wisdom took the aid of Section 118 & 119 of Indian Evidence Act,1872 which runs as follows:
"118. Who may testify.-All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
"119. Dumb witnesses.- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."
20. When a deaf and dumb person is examined in the Court, the Court has to exercise due caution and take care to ascertain before he is examined that he possess the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an inter-preters.
21. In the case of State of Rajasthan Vs. Darshan Singh alias Darshan Lal, AIR 2012 SC 1973, it has been laid down that law requires that there must be a record of signs and not the interpretation of signs. In this case, the trial judge failed to appreciate the fact that he has not only to do justice with the victim, but he has to balance both the sides.
22. With regard to the question that were put to the victim leading questions could not be put to the witness as law does not permit to do so. Sections 141 and 142 of Indian Evidence Act are relevant which reads thus:
"141. Leading questions.- Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.
"142. When they must not be asked.- Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved."
23. There is no doubt that leading question can be put to a witness during course of cross-examination but in this particular case leading questions were asked during the course of examination-in-chief and the services of an interpreter were not taken. Coming to the statement of witness, who was put leading question, she had stated that the accused raped her. This has been done by signs and gestures by lifting her sari and by making certain gestures. A leading question was asked whether Subhawati has children at which she nodded her head in positive although Subhawati did not have children. In fact, the victim had two children. Further, when the witness was cross-examined she stated all the statements by signs. She also stated that neither Ram Deo entered in her house nor left her. This is a strange case in which a deaf and dumb lady was made instrumental to falsely implicate the accused and the learned court below loosing side of the provisions of law convicted the accused on absolutely inadmissible evidence and practically in a case of no evidence.
24. The accused in the statement under section 313 Cr.P.C. has denied the occurrence. Thus, the prosecution has miserably failed to establish a case against the accused.
25. On the basis of what has been stated and discussed above, I do not find any merit in the case set up by the prosecution. As such, judgment and order impugned in the appeal is set aside. The appellant is acquitted of all the charges framed against him. The appeal is hereby allowed.
26. The appellant who is in jail shall be released forthwith in this case. Provision of Section 437A Cr.P.C. shall be complied with.
27. Let a copy of this order be sent to the court concerned.
Dated:06.4.2016 RCT/-