1. Challenge in this appeal is to the judgement and order dated 29.2.2012 passed by Additional Sessions Judge/Special Judge (SC/ST Act), Fatehpur in S.T. No. 46 of 2009 (State Vs. Thakur @ Umendra Jogi) arising out of Crime No. 26 of 2008, under Sections 376 I.P.C. and 3(1)(xii) SC/ST Act, Police Station-Jafarganj, District-Fatehpur, whereby the accused was found guilty under Section 376 I.P.C. and 3(1)(xii) SC/ST Act and was sentenced to 7 years rigorous imprisonment and Rs. 7,000/- fine, under Section 376 I.P.C. and was sentenced to 1 year rigorous imprisonment and Rs. 1,000/- fine under Section 3(1)(xii) SC/ST Act with default stipulation.
2. The prosecution case in brief is that the mother of the victim filed a written report before the S.O., Police Station-Jafarganj, District-Fatehpur stating that she belongs to Khatik caste. On 9.11.2008, her daughter at about 9:00 p.m. had gone to attend the call of nature. She was accompanied by younger sister Rani @ Soni. As soon as the victim ease herself, appellant Thakur Jogi dragged her into the field of Pooni and raped the victim. The younger daughter raised alarm and ran home, at which the informant, her son, her brother-in-law, her sister-in-law and other neighbour reached the spot, at which the appellant left his underwear and slipper there and fled away after threatening the informant. When the informant reached the police station, she was driven away by police personnel of the police station, then she approached the S.P. concerned, who directed the police to lodge her report.
3. On the basis of written report Constable 701 C.P. Ashok Kumar P.W. 8 proved the chik report scribed by Head Moharir Amar Singh. This witness proved the chik report as Exhibit Ka-9 and the copy of the G.D. as Exhibit Ka-10.
4. Investigation of the matter was entrusted to Deputy S.P. Arun Kumar Singh, P.W. 3. He recorded the statements of the victim, Head Constable Amar Singh, Somwati, Rani (sister of the victim), Shyam Babu, Kalideen, Kiran and Ramwati. On the same day, he inspected the spot at the pointing out of the victim and proved it as Exhibit Ka-7. He prepared the recovery memo of pair of slipper and under garments of the accused and copied it in the C.D. This witness further sent the victim for medical examination. After receipt of the medical report and X-ray report coupled with the supplementary report, they were copied in the C.D. and after completing necessary formalities, this witness submitted the charge-sheet, which was proved as Exhibit Ka-8.
5. The victim was medically examined by Dr. Shikha Bhardwaj, P.W. 6, who did not find any mark of injury on the external or internal parts of the body. The vagina was admitting one finger. The hymen was torn. There was no bleeding or discharge. There was no swelling. This witness proved the medical report as Exhibit Ka-5. P.W. 5 is Dr. B.C. Budhani, who proved the slide report as Exhibit Ka-4. Dr. K.C. Gupta, P.W. 4 conducted the ossification test to determine the age of the victim and proved the supplementary report as Exhibit Ka-2.
6. The prosecution examined as many as six witnesses. P.W. 1 is the victim. P.W. 2 is Somwati, mother of the victim. P.W. 3 is Rani, sister of the victim, who is also the eye-witness of the rape. The evidence of P.W. 4 Dr. K.C. Gupta, P.W. 5 Dr. B.C. Budhani, P.W. 6 Dr. Shikha Bhardwaj have been discussed by me above.
7. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence and stated that the informant had contested the Election for Gram Pradhan and he opposed her, due to which the informant was defeated. Hence, he has been falsely implicated. The accused produced D.W. 1 Ram Bahadur in defence.
8. After hearing counsel for the parties, learned lower court found the accused guilty and sentence him as has been specified in Para 1 of the judgement.
9. Feeling aggrieved, the accused-appellant has come in appeal.
10. I have heard the learned counsel for the parties and perused the trial court record.
11. As far as delay in lodging the F.I.R. is concerned, it is opt to mention here that in rape cases the delay in lodging the F.I.R. by the prosecutrix or by the parents in all circumstances is not of consequence. The Courts have granted adequate protection/allowance in that aspect regard being 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 herself.
12. In (2015) 7 SCC page 272 Mohd. Ali @ Guddu Vs. State of U.P. the Hon'ble Apex Court has held that, if the delay in lodging the F.I.R. is explained, it would not be fatal for the prosecution. As per chik report, the occurrence took place on 9.11.2008 at about 9:00 p.m. The report was lodged on 15.11.2008 at about 6:20 a.m. The distance of the police station from the place of the occurrence being 1 k.m. As far as delay in lodging the F.I.R. is concerned, the informant has stated that after the occurrence, she went to the police station, but the police personnel present at police station drove her away, when she went to the S.P. and C.O. with her daughter, they directed her to the police station, then her report was lodged. The victim P.W. 1 has also stated that she went to the police station to her mother, but the report was not lodged. They ran from pillar to post continuously for 3-4 days, but their report was not lodged. Ultimately due to intervention of the Senior Officers, report was lodged. Thus, there is a delay of more than 5 days in lodging the F.I.R. Mere assertion on the part of the informant and the victim that she approached the police authorities will not suffice.
13. Something more ought to have been done in the matter. The explanation given by the prosecution about the delay is not only unnatural but also improbable. Therefore, the inordinate delay of 6 days in lodging the F.I.R. against the appellant is fatal to the prosecution case. The vital aspect regarding inordinate delay in lodging the F.I.R. against the appellant not only makes the prosecution improbable to accept, but infact cast a shadow of doubt on the whole prosecution case.
14. The Hon'ble Apex Court in (2013) 3 SCC 791 Rajesh Patel Vs. State of Jharkhand has laid down that the Court should not accept delay in lodging the F.I.R. by assigning own satisfactory reasons. Thus, the whole prosecution story becomes untrustworthy.
15. As far as the testimony of the prosecutrix is concerned in A.I.R. 2003 SC 818 Vimal Suresh Kamle Vs. Chaluverapinake Apal S.P. and Another, the Court has laid down that 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 his testimony. Further the Hon'ble Apex Court in AIR 2009 SC Page 858 Rajoo and Others Vs. State of Madhya Pradesh has held as under :
"It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. There is no presumption of any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
16. Coming to the statement of the victim, P.W. 1 in the examination-in-chief, she has supported the F.I.R. version, but in cross-examination she has shattered the whole prosecution story by stating that since the accused had caught hold of her, she cannot raise alarm. She has further stated that when the accused was raping her, her family members came suddenly, changing version in the next breath, she stated that her family members came five minutes after the occurrence. She has further admitted that when the accused was taking all of his clothes, her mouth was freed at which she raised alarm, she was raped for 10 minutes and since her mouth was pressed, she could not bite the accused. She sustained the injuries on her head. Further, she has stated that the accused left his slipper and underwear on the spot, which was brought by her mother. The mother of the victim was examined, who stated that the victim and her sister had gone to attend the call of nature, after sometime Soni returned home weeping and raising alarm, who told her mother that the accused was catching hold of the victim and both are in the field. At this the mother, brother-in-law, sister-in-law proceeded towards the field. In cross-examination she has stated that the victim told her about the occurrence, when she returned home and they had also witnesses the occurrence themselves. She has admitted that she contested the Pradhani Election previously also.
17. Rani @ Soni, P.W. 3 is the star witness of the prosecution case, who stated that when she had gone with the victim to attend the call of nature, the accused came there and dragged the victim in the fields of Pooni. Both were in the fields, where the victim was raped by the accused. She ran to home and called her family members. This witness has further stated that the victim did not know the accused from before. She has gone to the extend to say that prior to the occurrence none of these people were known to the accused-appellant. Even her family members did not know the accused appellant. Thus, the identity of the accused becomes doubtful. Thus, the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material. The prosecutrix is making deliberate improvement on material points with a view to rule out consent on her part and there being no injury on her person. Hence, no reliance can be placed upon her evidence.
18. It is trite law that the prosecution has to prove its case beyond reasonable doubt and cannot support from the weakness of the defence case. There must be proper legal evidence and material on record to record the conviction of the accused. Although, conviction can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony.
19. The defence proceeded to examine D.W. 1 Raj Bahadur. The defence witness commands the same as a prosecution witness. He has stated that the victim is the step daughter of the informant. He resides in the same village. He lives away from the house of the victim. The informant has lodged a false report and the accused is the married man. As far as the place of occurrence is concerned rape is said to have been committed at 'C' place shown in the site plan Exhibit Ka-7. As per the site plan, the victim was dragged for about 58 paces, no doubt injury is not a must in convicting a person for the offence of rape, but in this particular case, if a lady is dragged for about 60 paces, the court would search for some injuries on the person of the victim. Besides since the F.I.R. is delayed the statements of the witnesses are contradictory.
20. It is the case of the prosecution that the accused was armed with any weapon. He is said to have committed rape alone on the victim. Forcefully rape on a young girl is definitely result in swelling on the private parts of the victim of rape. Thus, the medical evidence does not support the commission of rape. Medical report Exhibit Ka-5 proved by P.W. 6 Dr. Shikha Bhardwaj reveals that no external or internal injury was found on the person of the victim. As per age of the victim is concerned, she was found to be above 18 years of age as is evidence from Exhibit Ka-6. Thus, it appears that the victim was a consenting party and to safe herself from shame, she built up this story, which is neither probable nor trustworthy. As per the victim and her sister and her mother, the victim had sustained injuries and she was bleeding badly. There are inconsistencies among all the three witnesses, whose statement are not supported by the medical evidence. Even enmity of the accused with the mother of the victim i.e. the informant is admitted that when she was contesting the Pradhani Election, the accused used to oppose her during the election. Thus, the concealment of both the girls about knowing the accused from before and the admitted fact of enmity coupled with the delay in lodging the F.I.R., the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused. The evidence of the victim is shaky, unreliable and not worthy of credence.
22. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused-appellant is guilty for the offence charged. Thus, the accused-appellant is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 29.2.2012 passed by Additional Sessions Judge/Special Judge (SC/ST Act), Fatehpur in S.T. No. 46 of 2009 (State Vs. Thakur @ Umendra Jogi) arising out of Crime No. 26 of 2008, under Sections 376 I.P.C. and 3(1)(xii) SC/ST Act, Police Station-Jafarganj, District-Fatehpur is hereby set aside.
23. Accordingly, the appeal is allowed.
24. The accused-appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.
25. Let a copy of this order be sent to the trial court concerned.
Order Date :- 28.3.2016 Anurag/-