1. This criminal appeal has been preferred against the judgment and order dated 18.11.2010 passed by the learned Additional Sessions Judge, Court No. 11, Bareilly in Sessions Trial Nos. 872 and 873 of 2007 (State of U.P. vs Sanjai Bawariya) arising out of Case Crime No. 146 of 2007, under sections 452, 323, 376, 506 IPC and 3/25 Arms Act, police station Subhash Nagar, district Bareilly, whereby the appellant Sanjai Bawariya has been convicted and sentenced to one year rigorous imprisonment, under section 323 IPC, ten years' rigorous imprisonment and a fine of Rs. 5000/- under section 376 IPC and three years' rigorous imprisonment and a fine of Rs. 5000/- under section 452 IPC with default stipulation.
2. In brief the case of the prosecution is that a written report was lodged by Parmeshwari Dayal Mishra stating that he is resident of mohalla Tilak Colony and is tenant in the house of Satendra Upadhyay. He is working in "Dainik Jagran", newspaper as Dak Messenger. His son Pramod Mishra is a labourer. On 20.02.2007 when the informant along with his son Pramod returned home at 12.00 at night after finishing the work, he found his wife Smt. Shakuntala weeping in the house in an injured condition, who told the informant that their neighbour Sanjai Bawariya had forcibly entered the house, assaulted the family members and forcibly took the victim, wife of Pramod on the point of country made pistol on the roof and is raping her in the land-lord' room forcibly on the point of country made pistol. The informant and his son Pramod went to the roof and peeped into room through aperture in the wooden door, which was lightened with a bulb. He saw the accused appellant raping the victim, who was lying beneath the accused and crying for help. When the informant and his son knocked the door, Sanjai Bawariya opened the door after wearing his pant, threatened the informant and his son pointing the country made pistol at him, at which the informant and his son were frightened. The accused fled away from the stairs. The informant and his son shouted for help, but due to fear of the accused nobody came to their rescue. Thus, he brought the victim along with him to lodge the report.
3. Constable 622 Balram Singh prepared the chik report and proved it as Ext. Ka-5. He further scribed the details of the case in the G.D. and proved it as Ext. Ka-6. He also proved the FIR relating to section 25 Arms Act as Ext. Ka-7 and its G.D. as Ext. Ka-8. Investigation of the matter was entrusted to PW-8, S.I. Bhuvneshwar Singh on 20.02.2007. He apprehended the accused on 20.02.2007 at 21.40 hours and recovered the country made pistol from his possession. A confessional statement is said to have been made by the apprehended accused before the Investigating Officer, who prepared the recovery memo on the spot and proved it as Ext. Ka-9. He deposited the country made pistol in the Maalkhana and the accused was brought to the police station. S.I., Ramesh Chandra Sharma, PW-9 conducted investigation in the case of 25 Arms Act. He prepared the site plan and proved it as Ext. Ka-10. He submitted charge sheet and proved it as Ext. Ka-11. He further proved the prosecution sanction as Ext. Ka-12.
4. PW-1 Parmeshwari Dayal Mishra, is the informant of the case, who proved the written report as Ext. Ka-1. PW-2, is the victim. PW-3 is Smt. Shakuntala, the mother-in-law of the victim. PW-4 is Dr. Virendra Kumar, radiologist, who proved the supplementary report as Ext. Ka-2. PW-5 is Dr. Surbhi Prakash, has medically examined the victim and proved the medical report as Ext. Ka-4. PW-6, Pramod Kumar, is the husband of the victim, who is said to be the witness of the occurrence. The evidence of PW-7, Constable Balram Singh, PW-8 S.I. Bhuvneshwar Singh, PW-9 Ramesh Chandra Sharma has already been discussed above. PW-10 is S.I. Subhash Chandra Yadav, who recorded the statement of the victim and the informant, prepared the site plan at the pointing out of the informant and proved it as Ext. Ka-3 and Ka-14. He also recovered the torn clothes, broken bangles of the victim and T-shirt of the accused, which were sealed separately and separate recovery memos were prepared and proved it as Ext. Ka-15 to Ka-17. On 20.02.2007 the accused was arrested and a country made pistol was recovered from him.
5. This witness further recorded the statements of Santosh Pal, Ramu Pal, Ajay Bhargawa, Sunil Tamal, Mohan Rajpoot, Raghvendra Singh and Yogesh Saran and copied the medical report, X-ray report, pathology report and supplementary medical report of the victim in the case diary. This witness also recorded the statements of the witnesses Vinod Mishra, Satendra Upadhyay, Bina Upadhyay and Shambhu Upadhyay and submitted charge sheet against the accused-appellant and proved it as Ext. Ka-18. This witness also prepared the recovery memo of the country made pistol recovered from the accused and proved it as Ext. Ka-9. He sealed the country made pistol on the spot and proved it as material Exts. 1 and 2. He further proved the broken bangles of the victim as material Ext. 3. T-shirt of the accused as material Ext. 5 and clothes of the victim as material Exts. 5 to 9.
6. PW-11, Dr. Lok Nath Dipak, who examined the injuries on the body of the victim, found the following injuries:
1. Two oval shape abraded wound with swelling, size of each 2.1/4 c.m.X 2 c.m. and 4 c.m. X 3.1/2 c.m. Marks of teeth present on its edges. First wound was just below ear and second wound was below Ist wound on right side of face.
2. Reddish abraded swelling of 2 c.m. X 1 c.m. on outer side of right elbow.
3. Abrasion of 3/4 c.m. X 1/4 c.m. on front side and lower side of right forearm.
4. Reddish abraded swelling of 1.1/2 c.m.X 1c.m. on left palm near wrist. Patient made complaint regarding pain in right wrist but no apparent wound was seen.
7. After examining eleven witnesses, the prosecution closed its evidence.
8. The accused was examined under the provisions of section 313 Cr.P.C., in which he denied the occurrence. He also denied of anything having been recovered from his possession. He has further stated that he was having physical relations with the victim, which came to the knowledge of the locality. To save herself from defamation, the victim lodged a false report taking the advantage of the fact that her father-in-law was working in the "Dainik Jagran" newspaper. The accused examined DW-1 Bundawati, DW-2 Rajesh Kumar, DW-3 Kajal and DW-4 Dhanpal and closed his evidence.
9. The learned lower court after perusal of the evidence on record and after hearing the arguments on behalf of the counsel for the parties, returned the finding of guilt.
10. Feeling aggrieved, the accused has preferred the present appeal.
11. Heard learned counsel for the appellant and learned AGA for the State and perused the lower court record.
12. As far as lodging of the first information report is concerned, the FIR has been very promptly lodged, inasmuch as the occurrence is said to have been taken place in the intervening night of 19/20.02.2007 and the FIR was lodged on 20.02.2007 at 00.30 hours. The distance of the police station being 1 km from the place of occurrence.
13. We are aware that offence against women are increasing day by day. It is trite law that the statement of a victim in rape cases has to be required to be assessed by considering entirety of the evidence that may come before the court.
14. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix 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 prosecutrix 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 or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime. Her testimony 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 prosecutrix 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.
15. In the present case, besides the prosecutrix being PW-2, there are three other eye-witnesses regarding rape on the prosecutrix, which is a very rare circumstance in rape cases. One eye-witness to the rape is PW-1, informant being father-in-law and the other eye-witness to the rape is PW-3, Smt. Shakuntala being mother-in-law of the victim and the third is her husband Pramod Kumar Mishra, PW-6. Smt. Shakuntala, PW-3 is also an injured witness. Although, the evidence of family members is not to be thrown out on the ground of there being related to the victim, but definitely the evidence of family members has to be scrutinized with utmost caution. At 12, O'clock in the night, it would be prudent to believe that it would be the family members, who will be there in the house. Hence, in this light that the family members are witnesses, who have witnessed the rape on their daughter-in-law has to be kept in mind while analyzing the evidence.
16. PW-1 Parmeshwari Dayal Mishra has stated that Sanjai Bawariya is his neighbour. Of course, it would be very daring on the part of his neighbour to enter his neighbour's house, drag the daughter-in-law upstairs and close the door of the landlord's room.
17. In the examination-in-chief, PW-1 Parmeshwari Dayal Mishra has reiterated what he has stated in his FIR. He has said that when he entered his house after returning from work along with his son, his wife Smt. Shakuntala was lying in an injured condition, who told while weeping that the accused-appellant Sanjai Bawariya has forcibly entered the house. He had assaulted Smt. Shakuntala and the victim and was raping the victim at the point of country made pistol in the land-lords room at the roof.
18. There is no medical report as regards Smt. Shakuntala is concerned. It is not clear as to how Smt. Shakuntala could figure from the ground floor, what the accused was doing with the victim in the room at the roof.
19. PW-1 has further stated that he accompanied his son i.e. husband of the victim went to the roof and saw from the aperture of the door that the victim and Sanjai Bawariya were lying naked and Sanjai Bawariya was raping her. He had a country made pistol in his hand, while the victim was shouting. When they knocked the door, the accused wore pant and pointing the country made pistol at this witness and his son, fled away. One of the ways to test the veracity of this witness is his cross-examination. I admire the resistance which this witness could put on himself on seeing a person raping his daughter-in-law in his own house and both the father-in-law and the husband were helpless because the accused had a country made pistol in his hand.
20. In cross-examination, PW-1 has stated that his wife told him about the occurrence ten minutes after he arrived at home. Further he has stated that when the accused came out of the room, the victim also came out of the room. At that time, she was naked. This conduct of a daugher-in-law before her father-in-law is foreign to the Indian society. Even if for a moment, it is believed that the victim was being raped how could she dare to come before her father-in-law without clothes when her clothes were there in the room right before her.
21. PW-2, is the victim, who has stated that her father-in-law and husband had gone to work on the day of occurrence. Some body knocked her door, she was lying near her mother-in-law, she opened door as she thought her husband and father-in-law had come from work. As soon as she opened the door, the accused appellant armed with a country made pistol entered her house. He caught her hand, when her mother-in-law resisted, she was pushed. The accused dragged her through the stairs to the room on the roof. The neighbours saw all this, but due to fear nobody came to help her. At the point of country made pistol, the accused tore her clothes, took off her sari, broke the knot of her petticoat, derobed himself and raped her. Suddenly, somebody knocked the door at which the accused wore his pant and left the room threatening PW-1 at the point of a country made pistol. After the accused left, her husband gave her clothes, which she wore. This is in-contradiction to the statement of PW-1, who has stated that the victim came out of the room naked.
22. I have termed it as a major contradiction because this is a very glaring feature for a father-in-law to witness his daughter-in-law being raped and further to come naked before her father-in-law. It appears that the victim in order to save her skin has stated that she did not know the accused before the occurrence. She had seen the accused-appellant for the first time at the time of occurrence. She has stated that later on she came to know his name when report was being lodged.
23. In the next breath, this witness stated that she knew that Sanjai Bawariya was her neighbour and the land-lord of the house was residing up-stairs. She has admitted that at the time of occurrence, the land-lord was residing in the front portion. Why the land-lord could not know about the occurrence is an unanswered question.
24. In examination-in-chief, the victim has stated that the accused pushed her mother-in-law, but in cross-examination, she has stated that the accused slapped her mother-in-law. She did not know whether the land-lord was sleeping or awake at that time. Again a question arises as to how accused Sanjai Bawariya dared to drag the daughter-in-law of the house to a place, in which the land-lord was residing and dared to rape her there. The victim has admitted that one door of the land-lord's room was open. She has further stated that the accused took off her clothes. She could not specify whether the accused while holding the country made pistol in one hand took off her and his clothes by one hand or both hands. Since while he was taking off clothes, he was holding country made pistol in his hand. She has stated that the country made pistol was loaded, which statement she was giving on the basis of her idea. She has stated that the accused had derobed her. In the meantime, her father-in-law and husband had come, meaning thereby that father-in-law and husband had come before the accused could rape her. She could not state that whether the accused was crippled by one foot or not or he was disabled. When a question was put to her whether the accused had fired from country made pistol or not, she replied that she did not remember. Although, she should have specifically answered in the affirmative or in the negative. It appears that the witness forgot what she has stated in her earlier cross-examination. This said that she has not seen the house of the accused.
25. Another glaring feature to disbelieve the evidence of PW-2 is that at one place she has said that she went with her mother-in-law to open the door, but at another place, she has said that she went alone to open the door. When the door was knocked, she asked as to who was at the door. A voice came from outside and she opened the door without recognizing the voice. She has said that she remained in the room where she was raped for one hour. After one hour, her father-in-law came, this makes the whole prosecution case crystal clear to prove that she was a consenting party to the act. A new case was set-up by the victim saying that the accused caught her by hair in the room where she was raped. According to the victim, the accused dragged her by hair by one hand and in the other hand he was holding a country made pistol. If a helpless lady is dragged by her hair, she should have sustained very grievous injuries, specially on the scalp because if a rapist is dragging a lady, he will not be lenient towards her. She has stated that nobody had helped her while she was being dragged. The prosecutrix has further stated that when he was closing the door of the room, he had caught the victim by one hand and by another hand he closed the door. Thus, the theory that the accused was having a country made pistol in his hand is falsified. She has stated that all the clothes were torn, but they were taken off from her body. When this lady could box the accused while he was dragging her, what was the reason why she could not resist the accused from derobing her. Her sari was pulled out and she was pushed on the bed. She has also stated that Sanjai Bawariya took off her clothes and Sanjai Bawariya was lying beside her at that point of time he took off her clothes, meaning thereby that both were lying together side by side when the prosecutrix was derobed.
26. The prosecutrix has stated that when she and Sanjai Bawariya were lying side by side, first of all her father-in-law saw her. Her father-in-law called her husband. Her mother-in-law did not come up. She remained down stairs. Her husband and her father-in-law abused and got the latches opened. The latches was opened in five minutes. When her husband and father-in-law entered the room, she was naked. She covered herself with a sari on seeing her father-in-law and came down stairs.
27. It appears that this is the correct story and crux of the matter that the prosecutrix was a consenting party. She was lying with the accused. Her father-in-law and husband saw her and false allegations were levied on the accused. Although, the prosecutrix was a consenting party.
28. The prosecutrix has stated that "?kVuk okyk dejk lksus okyk dejk gS ;k ugha eSa ugh crk ldrh A ?kVuk ds le; ,d cPpk csM ij lks jgk FkkA ?kVuk ds le; og cPpk 'kksj lqu dj "kx x;kA "
29. The aforesaid statement and confession of the prosecutrix makes it crystal clear that she was a consenting party to the act as these details of a child being present in the room of the occurrence has come for the first time during the course of further cross-examination of the prosecutrix. Initially, this witness has stated that the accused did not pinch or pull her, but later on she said that the accused pinched and pulled her. He pinched her breast, but she did not sustain any injury on her breast. The accused did not bite her. Accused Sanjai Bawariya raped her for 10-15 minutes.
30. There are different versions of the prosecutrix regarding her injuries during the course of rape. She has specifically stated that "?kVuk ds le; lat; us uksPk [klksV o ekjihV dh FkhA lat; us gekjs o{k LFkyks dks uksPkk [klksVk FkkA o{k LFkyks esa dksbZ pksV ugha vkbZ FkhA vkSj 'kjhj ij eqfYte us dkV ihV ugha dh FkhA gekjs lkFk 10&15 feuV lEHkksx gqvk FkkA lat; us tkrs gh lEHkksx 'kq: dj fn;k FkkA "
31. In the above context, the medical report of the victim has to be looked into.
32. Perusal of the medical report, Ext. Ka-19 reveals that Dr. Lok Nath Deepak PW-11 found the following injuries on the body of the prosecutrix.
1. Two oval shape abraded wound with swelling, size of each 2.1/4 c.m.X 2 c.m. and 4 c.m. X 3.1/2 c.m. Marks of teeth were present on its edges. First wound was just below the ear and second wound was below Ist wound on right side of the face.
2. Reddish abraded swelling of 2 c.m. X 1 c.m. on outer side of right elbow.
3. Abrasion of 3/4 c.m. X 1/4 c.m. on front side and lower side of the right forearm.
4. Reddish abraded swelling of 1.1/2 c.m.X 1c.m. on left palm near wrist. Patient made complaint regarding pain in right wrist but no apparent injury was seen.
33. Although, according to the prosecutrix, she did not sustain any injuries. Nor the accused bit her. But according to injury report, injury No. 1 was caused by teeth bite. Even as per copy of G.D. Ext. 8 when she went to the police station just after the incident no injuries were noted in the G.D.
34. It is a well settled law that in case of contradiction between medical evidence and ocular evidence, the ocular evidence should be relied upon, but in this particular case, even the ocular evidence is totally unreliable and full of contradictions.
35. PW-3 is Smt. Shakuntala, has stated that she had seen the accused raping her daughter-in-law. The door was closed, but the windows were opened. There were glass panes in the window. She peeped through the panes. Even her husband and son had seen through the aperture of the door. Further contradicting this witness has stated that when the door was opened, the victim was naked. She gave her sari to the victim, which was worn by the victim when she came out. After coming down stairs, she wore her own clothes and took off her mother-in-law's sari, whereas victim has stated that she came out after covering herself with sari and down stairs she wore her mother-in-law's clothes, but as per version of the father-in-law,the victim come before him naked. PW-3 has stated that the room is a bed-room and at the day of occurrence it was bolted from outside.
36. PW-6 Pramod Kumar Mishra is the husband of the prosecutrix, who has stated that when he reached home with his father, the door was opened and his mother was lying on the floor and she was weeping. When he asked his mother about the matter, she told him that Sanjai Bawariya had assaulted her and had taken the victim on the roof on the point of country made pistol. He went to the roof with his father and saw that one room was bolted from inside and he heard the shrieks of his wife from the room. He peeped from the aperture of the door and saw that his wife was lying and Sanjai Bawariya was raping her. He knocked at the door to which Sanjai Bawariya came out wearing his pant and threatened him with a country made pistol. This witness has admitted that twelve years have passed since his marriage and the couple had no children. He told that he did not see any injury on the body of his mother. He has stated in cross-examination that he saw the occurrence from the window and after that he knocked the door and when Sanjai Bawariya was lying on the victim, he was holding a country made pistol in his hand. He witnessed the occurrence for about 1-2 minutes and then knocked at the door. At this Sanjai Bawariya left the room. His mother came in the room and gave sari to Pooja.
37. Thus, the four family members, namely, PW-1 Parmeshwari Dayal Mishra, PW-2, Pooja, the prosecutrix, PW-3 Smt. Shakuntala and PW-6, Pramod Kumar Mishra were examined. All are said to be eye-witnesses, but the version of eye-witnesses account of all the four is different from each other and is full of contradiction and embellishment.
38. In this regard, the statement of Dr. Surbhi Prakash, PW-5 is important. This witness has also proved the medical report and supplementary report as Ext. Ka-3 and Ka-4. This witness has stated that there were marks of injuries on the body, hand and face.
39. Investigating Officer S.I., Subhash Chandra Yadav, PW-10, who has stated that he recovered one torn petticoat and other clothes including one shirt of the accused at the place of occurrence. The recovery memo is Ext. Ka-15. The recovery was effected on 20.02.2007.
40. It is strange enough that the clothes of the victim were left lying in the room of the land-lord till then. The clothes including one sari, one blouse, which was torn, one torn undergarment, one cardigan, which was torn at places and one petticoat. Different versions have come from the prosecutrix about derobing her. At some place she said that the accused took off her clothes, at other place she has said that her clothes were torn by the accused. This recovery memo Ext. Ka-15 lies somewhere in between, inasmuch as some clothes have shown to be torn and some intact.
41. While denying the occurrence in his statement under section 313 Cr.P.C.,the accused produced as many as four witnesses in this case.
42. It is trite law that the defence witnesses should be given the same respect as the prosecution witnesses.
43. DW-1 Bundawati has stated that she runs a grocery shop. She has stated that grocery articles were sent to the house of Sanjai Bawariya and the victim and Sanjai Bawariya both used to do joint account. She has further said that both Sanjai Bawariya and Pooja used to sit at her shop and sometimes behind the shop for quite sometime and used to gossip together. She has also stated that since Pooja was issue-less, she had a desire to have a child from Sanjai Bawariya. Although she stated that she did not go to the house of Pooja or Sanjai Bawariya. She has fairly admitted that Rs. 550/- is due on Pooja, which she has not paid. She has come to give evidence for Sanjai Bawariya.
44. In cross-examination, she has stated that sometimes Pooja used to come alone and sometimes both Pooja and Sanjai Bawariya used to come together. She has not witnessed the rape.
45. DW-2 is Rajesh Kumar, who has stated that many times he had seen the victim and accused standing together at the shop of Bundawati, DW-1. He has also stated that the victim went on his rickshaw for snacks and rent of the rickshaw was paid by Sanjai Bawariya. He had also insisted the rickshaw puller not to take any amount from the victim as whenever she will travel by rickshaw, Sanjai Bawariya would pay the rent.
46. There is nothing in the cross-examination of the witnesses to discredit him.
47. DW-3 is Kajal Gupta, who has stated that she used to meet the victim at dairy when both of them come to fetch milk. She has stated that the victim told her that she had affair with Sanjai Bawariya because she desires to have a child from Sanjai Bawariya. Although, in the cross-examination, she has stated that she does not know Sanjai Bawariya. This is very innocent statement of this witness.
48. DW-4 Dhanpal, who is the tempo driver, has stated that the victim and Sanjai Bawariya used to meet at the tempo stand often.
49. Thus, from the evidence of all the defence witnesses, it is clear that the victim used to meet Sanjai Bawariya. Although, the victim has denied of having known Sanjai Bawariya from before the occurrence, but the statements of the defence witnesses falsify her statement.
50. Thus, the statement of the defence witness is also reliable and plausibly acceptable because the husband of the victim Pramod Kumar Mishra, has himself stated that his mother was not able to do the household work, hence the victim was looking after the house. Obviously, since the husband of the victim used to be out of the house from 9.00 a.m. till 12, O'clock in the night, she was going out of the house to fetch grocery items and other items. Thus, she had every occasion to meet the accused Sanjai outside the house.
51. Thus, what has been stated and discussed above, goes to show that the whole prosecution story is concocted and bundle of lies and the evidence of the prosecutrix when read in totality is full of discrepancies and do not inspire confidence. The gaps in the evidence, several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
52. Thus, the weakest part in the version given by the prosecutrix was her subsequent conduct. Thus, in conclusion, having regard to the conduct of the prosecutrix, the discrepancies in the statements of the witnesses, I come to the conclusion that the conviction of the accused-appellant under sections 452, 323, 376 IPC is bad in the eyes of law and the sentence and conviction is liable to be set aside.
53. Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused Sanjai Bawariya, and as such the accused is entitled to be acquitted and the appeal is liable to be allowed.
54. Hence, the impugned judgement of conviction and sentence dated 18.11.2010 passed by the learned Additional Sessions Judge, Court No. 11, Bareilly in Sessions Trial Nos. 872 and 873 of 2007 (State of U.P. vs Sanjai Bawariya) arising out of Case Crime No. 146 of 2007, under sections 452, 323, 376 IPC, police station Subhash Nagar, district Bareilly, is hereby set aside.
55. Accordingly, the appeal is allowed.
56. The appellant-Sanjai Bawariya is in jail. He shall be released forthwith unless wanted in any other case. The provision of Section 437-A Cr.P.C. shall be complied forthwith.
57. Let a copy of this order be sent to the trial court concerned for compliance of the order.
Order Date :- 22.01.2016 Sazia