1. Challenge in this appeal is to the judgement and order dated 22.03.2013 passed by the learned Special/Additional Sessions Judge, Court No. 4, Saharanpur in Special Sessions Trial No. 435 of 2011 (State vs Vinish alias Vinni) arising out of Case Crime No. 193 of 2011, under Sections 376, 323, 504, 506 IPC and 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Gangoh, District Saharanpur, whereby the accused appellant Vinish alias Vinni has been convicted and sentenced to seven years' rigorous imprisonment under section 376 IPC read with section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocites) Act and a fine of Rs. 20,000/-, one year's rigorous imprisonment under section 323 IPC, one year's rigorous imprisonment under section 504 IPC and two years' rigorous imprisonment under section 506 IPC with default stipulation. Out of the fine so awarded, 2/3rd of the same was directed to be paid to the victim as compensation.
2. In short compass the facts of the case as unfolded by the prosecution in the FIR lodged by the informant Dinesh Kumar, son of Ratan Singh is that on the date of incident, i.e. 29.04.2011, at about 1.00 p.m., the wife of the informant, the victim went to the Gher of her house to give water to the bufallow and as soon as she sharted to give water to the bufallow, the accused Vinish alias Vinni, who was resident of his village and one unknown person, who was hiding in the premises before hand armed with country made pistol came there and on the point of country made pistol and threaten to kill, caught hold of the victim. On her resistence, they torn the clothes of the victim, pulled her down and both of them committed rape on her one by one. On an alram being raised by the victim, the witnesses Vinod, Ishwar and others rushed to the spot and witnessed the whole incident. On the arrival of the witnesses, both the accused brandishing the country made pistol, threatening to kill and using caste derogatory words like, Chamar and Gittal ran away from the spot. When the informant and his family members made a complaint of the incident to the accused Vinish alias Vinni's father Surendra and uncle Mukesh, then they also abused the informant and used caste derogatory languages and pushed them out of the house by thretening to kill in case any action is taken. The informant got the report scribed by Kaleem Aslam, Ext. Ka-1 and handed over the same to police station Kotwali, Gangoh. On the basis of the written report Ext. Ka-1, the First Information Report, Ext. Ka-7 was registered at 6.15 p.m. at police station Kotwali Gangoh against the accused Vinish alias Vinni and one unknown person under sections 376, 323, 504, 506 IPC and 3(1)(12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
3. The investigation of the case was entrusted to the Circle Officer, Nakud. The police of concerned police station sent the victim for medical examination to the District Women Hospital, Saharanpur, through lady Constable Asha Devi and Constable 179, Harpal Singh, where she was medically examined on the same day at 11.00 p.m. Two slides of her vaginal smear were made. The victim was thereafter sent to the District Hospital, Saharanpur, where she was medically examined for her injuries on the body.
4. The Investigating Officer started the investigation and on 01.05.2011, the accused Vinish alias Vinni was arrested and his statement under section 161 Cr.P.C. recorded. On 02.05.2011, the statements of the informant, victim and the witnesses were recorded. On the pointing out of the victim, the Investigating Officer inspected the spot and prepared the site plan, Ext. Ka-9. The clothes, which the victim wore at the time of occurrence, was taken into possession and its memo was prepared as Ext. Ka-2. After recording the statements of the other witnesses and concluding the investigation, the Investigating Officer submitted the charge sheet against the accused Vinish alias Vinni as Ext. Ka-10, on which the cognizance was taken by the concerned Magistrate and case was committed to the Court of Sessions.
5. In support of its case, the prosecution has examined as many as eight witnesses. PW-1 is Dinesh Kumar, the informant and husband of the victim. PW-2 is the victim of the case. PW-3 is Dr. Smt. Abha, who has medically examined the victim. PW-4 is Ishwar, the witness of the fact. PW-5 is S.I., Khajan Singh, the investigating officer. PW-6 is Dr. Naresh Chandra. PW-7 is Constable Rajpal Singh. PW-8 is Circle Officer, Hardev Singh.
6. PW-1, Dinesh Kumar is the informant of the case. He reiterated his versions mentioned in the report. This witness has further stated that his wife was medically examined at Government Hospital, Saharanpur. He signed the written report submitted to the police on the date of occurrence and has also proved the written report as Ext. Ka-1. This witness has further stated that police took into possession the clothes of her wife and prepared their recovery memo. He has also signed on the said recovery memo and proved the same. On the pointing out of the victim the Investigating Officer has prepared the site plan.
7. PW-2 is the victim of the case and wife of the informant. She has also reiterated the versions given by her husband, the informant in the written report. She has further stated that she has gone to lodge the FIR along with her husband and mother-in-law. Her medical examination was conducted at District Women Hospital, Saharanpur.
8. PW-3, is Dr. Smt. Abha, she has deposed that on the date of incident she was posted at District Women Hospital as Emergency Medical Officer. On that date she has medically examined the victim, who was brought by lady Constable Asha Devi and Constable 179, Harpal Singh. Her medical examination was done at 11.00 p.m. On the internal examination of the victim, the doctor noted that her vagina admits two fingers easily. Her hymen was old torn because she has given birth to three children. There was no injury on her private part. She has prepared two slides of vaginal smear and sent the same for examination. Therefter, she referred the victim to the District Hospital, Saharanpur. She has also proved medical examination report and reference slip as Exts. Ka-2 and Ka-3. She has also proved slides of vaginal smear as Ext. Ka-4. On the basis of pathological report, she also prepared supplementary report, which was proved as Ext. Ka-5.
9. PW-4, is Ishwar, who claims himself to be the witness of fact. He deposed that on the date of occurrence, i.e. 29.04.2011 at 1.00 p.m. when he was at his house, he heard the shrieks of a woman. On hearing the shrieks, he rushed to the spot and saw that in the room of Gher, the wife of Dinesh, the victim was lying inside and accused Vinish alias Vinni and his accomplice were inside the room. On seeing him, the accused Vinish started to wear his pant. On that time, witness Vinod also arrived there. On seeing him, he ran away from the spot abusing the victim and using caste derogatory words.
10. PW-5 is S.I., Khajan Singh, who took into possession the clothes of the victim and sealed them. He proved the same as Ext. Ka 2.
11. PW-6, is Dr. Naresh Chandra, who was posted at MBD Hospital, Saharanpur as Emergency Medical Officer, examined the victim on 29.04.2011 at 11.50 p.m. and found the following injuries:
1. Soft scabbed multiple abrasion 4 cm x 1 cm back of left forearm lower part.
2. Soft scabbed multiple abrasion 7 cm x 1 cm front of right forearm lower part.
3. Reddish contusion of 14 cm x 2 cm back of chest upper front both sides.
12. This witness has further opined that all the injuries were simple in nature and caused by hard and blunt object. The duration of injuries was about half day old. The injury report of the victim has been signed by this witness and proved as Ext. Ka-6.
13. PW-7 is Constable Rajpal Singh, who on the basis of written report, got the chik report prepared and made necessary G.D. entries and proved the same as Ext. Ka 7 and Ka-8.
14. PW-8 is Circle Officer, Hardev Singh (retired), whose evidence has already been discussed above.
15. After closing 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 false report has been lodged against him due to village parti-bandi and false and fabricated medical report has been got prepared.
16. However, in support of his defence, the accused has produced DW-1, Sandeep, who stated that he accompanied accused's uncle Mukesh to Saharanpur and father of the accused had gone to Rampur to fetch medicines. He came back to village at about 6.30-7.00 p.m. According to this defence witness, the informant neither went to the house of the accused nor he was abused.
17. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgement.
18. Feeling aggrieved, the accused has come up in appeal.
19. Heard Shri Rohit Kumar, learned counsel for the appellant, learned Additional Government Advocate and perused the lower court record.
20. As far as the FIR is concerned, the occurrence is said to have taken place on 29.04.2011 in the day time while the report was lodged on the same day at 6.15 p.m. The distance of the police station from the place of occurrence being 7-1/2 kms. I think the report is prompt.
21. As far as the occurrence is concerned, admittedly the victim is a married lady. It is settled law that if the testimony of the prosecutrix is intact and trustworthy, conviction can be based on her testimony alone. In Vishnu vs State of Maharashtra, AIR 2006 SC 508, the Hon'ble Apex 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 her testimony.
22. PW-1 is the husband of the victim, who is not an eye-witness to the incident, but he has stated that when his wife entered the Gher to give water to the buffalow, the appellant along with an unknown person threatened to kill the victim dragged her into room and raped her on the point of countrymade pistol. When hue and cry was raised, Vinod and Ishwar came to the spot. Thus, the presence of Vinod and Ishwar immediately after the occurrence has been stated by the husband of the victim. Even the victim PW-2 has stated that after she was raped by both the accused, she raised alarm, at which Ishwar and Vinod came. Dinesh, the husband of the victim has admitted that his house is adjacent to the house of Vinod and also adjacent to the house of accused Vinish and the wall of his Gher is 6 feet high. The door is 1 foot higher than wall. This has also been admitted by the victim PW-2. The husband of the victim who met his wife immediately after the incident has stated that his wife narrated the incident to him at the time of occurrence. She was wearing a salwar suite. Her Kameez was torn from the neck and her salwar was torn and its tape was broken. The victim has stated that as soon as she entered her Gher to give water to the buffalows, the appellant Vinish and his companion drgged her into the room at the point of countrymade pistol and both raped her.
23. As far as the entering of the accused in the house of the victim is concerned, the victim has stated that gate is always locked from the outside. When she entered her Gher, she opened the main gate and closed the main gate from inside. After that she went in the room and came with the bucket and started filling water from tap. She was subjected to cross-examination, in which she has stated that she did not know from where the accused entered her Gher and whether they were in the Gher before her arrival or they came afterwards. She has further stated that one accused pressed her mouth and the other caught hold of her hand. It appears that this witness wanted to say that in one hand each accused was holding a fire arm and by the other hand one was pressing her mouth and the other was catching her hand. She has further stated that some conversations took place between them and they asked the victim either she should accompany them to the room otherwise they would fire at her. This was said by Vinish, although both the accused had shown countrymade pistol at her. There was no reason for the accused appellant Vinish and his companion to talk to the victim in this way, if they had forcibly dragged her into the room as per the case of the victim as setforth by her. She has stated that her clothes were not taken off, but they were torn. Now in the hand of the other accused the gun has been introduced and she has said that the other accused was holding a gun, he did not drag her. She has stated that the companion of the appellant raped her for 10-15 minutes while he was raping her, her hands were on his shoulders. She was trying to push him out. She has clarified that when the unknown companion of the appellant Vinish has satisfied his lust, then he left the victim. His semen dropped on her suite, salwar and undergarments, even then she did not raise alarm. After raping her, the unknown person did not leave the room, he remained inside. After that Vinish raped her. He also raped her 10-15 minutes. She had crossed her legs while Vinish was raping her. She had kept her hands on his chest and was trying to remove him. After Vinish left her, she raised hue and cry. She has stated that she dictated the report, on which her husband put her signatures although perusal of the report shows that she put her signature. When salwar was shown to this witness, she admitted that her salwar was not torn, but it was cut from places and even the Kameez was not torn, but was cut from many places.
24. As far as the statement of Ishwar is concerned, he has stated that he heard the shrieks of a lady coming from the Gher of his neighbour Dinesh, when he reached the spot, he saw the victim lying below and Vinish was present there. Another unknown person was also present there. As soon as Vinish saw this witness, he got up from the victim and wore his pant. By that time, Vinod had also reached there, on this both the accused fled away. This is a new story putforth by the witness, who has admitted that the informant is his nephew, but the story has narrated by this witness is contrary to what has been stated by the victim because the victim has stated that she raised alarm after both the accused had raped her, whereas witness Ishwar has stated that he saw the appellant Vinish raping the victim. PW-4 Ishwar has further stated that when he entered the house from the varandah, he saw the victim lying below Vinish and acccused Vinish was fleeing away from the spot. Now he has stated that the accused fled away from the stair-case. When this witness Ishwar was questioned as to what he saw when he reached the place of occurrence, he stated that he reached there after the victim had settled her clothes and he left the victim at her house. This is not the case of PW-1 Dinesh and PW-2 the victim, inasmuch as according to this witness, the victim reached her house on her own after the incident.
25. Dr. Naresh Chandra PW-6 has found three injuries on the body of the victim, but the injuries are not conclusive proof of rape. In Radhu vs State of Madhya Pradesh (2007) 12 SCC 57, the Hon'ble Apex Court has held as under:
"We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongful confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration."
26. Thus, the statement of the victim when read in its totality along with evidence of her husband and witness Ishwar was so improbable that the whole prosecution story could not be relied upon.
27. In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858, the Hon'ble Apex Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The Hon'ble Apex Court however, further observed:
".......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 or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
28. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Hon'ble Apex Court held as under:
"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."
29. 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 mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed.
30. Hence, the impugned judgement and order of conviction and sentence passed by the learned Special/Additional Sessions Judge, Court No. 4, Saharanpur in Special Sessions Trial No. 435 of 2011 (State vs Vinish alias Vinni) arising out of Case Crime No. 193 of 2011, under Sections 376, 323, 504, 506 IPC and 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Gangoh, District Saharanpur, is hereby set-aside.
31. Accordingly, the appeal is allowed.
32. The appellant-Vinish alias Vinni is in jail. He shall be released forthwith unless wanted in any other case. The appellant is directed to comply with the provision of Section 437-A Cr.P.C. forthwith.
33. Let a copy of this order be sent to the Trial court concerned.
Order date: 15.03.2016 Sazia