1. Challenge in this appeal is to the judgment and order dated 28.04.2011, passed by Additional Sessions Judge, Maharajganj, in Sessions Trial No. 163 of 2007 (State vs. Vinod Kurmi and another), registered as Case Crime No. 681 of 2007, under Sections 363, 366, 376, 506 I.P.C., Police Station Shyam Deorwa, District Maharajganj, whereby the accused Sunil was acquitted for the offences under Sections 363, 366, 376, 506 I.P.C. and the present accused appellant namely Vinod Kurmi was found guilty and sentenced for two years rigorous imprisonment along with fine of Rs. 2000/- under Section 363 I.P.C.; seven years rigorous imprisonment along with fine of Rs. 5000/- under Section 366 I.P.C.; ten years rigorous imprisonment along with fine of Rs. 10,000/- under Section 376 I.P.C. and two years rigorous imprisonment along with fine of Rs. 3000/- under Section 506 I.P.C. with default stipulation.
2. Prosecution case in brief is that one Ram Murat has lodged a written report on 28.08.2007 stating that he was resident of village Piparpati Tola, Samerhana, Police Station Shyam Deorwa, District Maharajganj. His daughter aged about 12 years, student of class Vth was kidnapped by the accused Vinod and Sunil on 01.08.2007 while she was going to attend the call of nature. After three days, the girl could not be traced. She was searched out at the house of the relatives but, could not be traced. On 03.08.2007, at about 05:00 A.M., the accused by pressing the mouth of the victim, taking her away through the fields when the witnesses Rajendra and Mithai spotted them. They fled away leaving the girl who narrated the incident to her father. She also told him that she was raped for three days by both the accused. The accused had also threatened to kill the informant, hence the first information report was lodged.
3. On the basis of aforesaid written report CP 572 Kalp Nath Prasad has scribed the chik report which was proved by this witness as Exhibit Ka-3 and also prepared the G.D. whose copy was proved as Exhibit Ka-4. Investigation of the matter was entrusted to S.I. Uma Shankar Yadav PW-9 who copied the chik and G.D. in the case diary. He recorded the statement of the informant Ram Murat, further recorded the statement of the victim at her house. Her clothes were taken into possession by the police. Seizure memo was prepared which was proved by this witness as Exhibit Ka-10. The place of incident was inspected at the pointing out of the victim and site plan was prepared which was proved as Exhibit Ka-11. The clothes of the victim was produced before the court and were exhibited as material exhibits 1, 2 and 3. He arrested the accused on 29.08.2007. On 30.08.2007, he recorded the statement of the witnesses Rajendra and the Mithai. After which the investigation was transferred to S.I. Jamuna Prasad Singh PW-8. He prepared the memo of handing over the victim to her parents which was proved as Exhibit Ka-8. The investigation was ended into a charge sheet which was proved by this witness as Exhibit Ka-9. Dr. Abha Gupta PW-6 has medically examined the victim. She proved the medical report as Exhibit Ka-5 and the radiological report as Exhibit Ka-6. She did not find any marks of injury on the body of the victim.
4. The prosecution has examined as many as nine witnesses, PW-1 is the informant Ram Murat who proved the written report as Exhibit Ka-1, PW-2 is the victim who proved her statement recorded under Section 164 Cr.P.C. as Exhibit Ka-2. PW-3 is Mithai and PW-4 is Rajendra who are said to have seen the accused persons taking away the victim. The evidence of PW-5 Kalp Nath, PW-6 Dr. Abha Gupta, PW-8 SI Jamuna Prasad Singh and PW-9 SI Uma Shankar Yadav have earlier been discussed. PW-7 is Dr. Rajeev Ranjan, radiologist who has proved the radiological report as Exhibit Ka-7.
5. After closure of the prosecution evidence, the statement of the accused persons were recorded under Section 313 Cr.P.C., in which the accused Sunil has stated that the witnesses of memo Irshad is inimical with the accused, hence he has been falsely implicated. The accused Vinod has stated that the informant is Chowkidar of the police station. He has taken the police in his influence and has lodged a false report. However, no defence evidence was adduced.
6. After hearing counsel for both the parties, the learned lower court has passed the sentence and recorded the conviction as specified in para one of the judgment.
7. Feeling aggrieved, the accused appellant has come in this appeal.
8. I have heard learned counsel for the appellant, learned A.G.A. and perused the original record of the trial court.
9. It has been submitted on behalf of counsel for the appellant that there is inordinate delay in lodging the first information report. Although mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution. In State of Rajasthan Vs. Narayan, AIR 1992 SC 2004 the Apex Court has observed that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police. In State of Punjab Vs. Gurmit Singh & Ors., 1996 SCC (2) 384, the Apex Court has held that the Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family.
10. PW-1 Ram Murat has stated that when his daughter went to attend the call of nature, she did not returned. Next morning, he came to know about the missing of the girl. He went to the village Pradhan and Panch when the girl was found missing. He was told by Rajendra and Mithai that they saw the accused persons taking away the victim and thus, he lodged the report on 28.08.2007 after a delay of about 27 days. He has tried to explain this delay by stating that on 03.08.2007, his daughter was recovered at 05:00 A.M. He was trying to go to the police station while the accused threatened to kill him. Due to sudden threat, he could not lodge the first information report.
11. If the obligation in the first information report and the statement of the informant is taken on its face value, even then, no reason has been assigned why till the recovery of the girl, the informant kept mum. In (2015) 3 SCC (Cri) 82, Mohd. Ali alias Guddu vs. State of Uttar Pradesh, Hon'ble the Apex Court has held as under:-
"Be it clearly stated here that delay in lodging the first information report in cases under Section 376 I.P.C. would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodge a missing report at the police station. The same was not done. This action of PW-2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this fact on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown-up daughter. In the absence of any explanation, it gives rise to a sense of doubt."
12. In this regard, PW-1 Ram Murat has stated that he was threatened by the accused. He has stated that the girl was brought back to the home three days after she was missing from the house by Rajendra and the girl had told him that she was kidnapped by Vinod and Sunil and then he has come to know about the occurrence. In cross-examination, the witness has stated that when he went to "Pancho", they had suggested him to go to the police station to lodge the report but he did not go to the police station but keep on searching his daughter. He has stated that when he went to the police station, he narrated the incident to the Sub Inspector. The Sub Inspector called one person to scribe the written report which was dictated by the Sub Inspector, while this witness has signed the written report. He has further mentioned that when he got the report scribed, he had written that Vinod and Sunil armed with lathi, danda and arms were threatening him. The testimony of this witness is not reliable, inasmuch as the story as narrated by this witness is not palatable because he has admitted that he is the Chowkidar of the village. Even Kalp Nath Prasas PW-5, who has proved the chik report and copy of G.D., has admitted that the informant Ram Murat is Chowkidar of the Police Station, Shyam Deorwa and the tehrir was submitted by the informant. When this witness was asked what was the meaning of "Prarthi" mentioned in the first information report, he said that "Prarthi" means "Vidyarthi". In the next breath, he said that he did not know the meaning of "Prarthi". He has admitted that when the accused were threatening him, he had told this matter to Gopali, resident of his village at which Gopali has suggested this witness to lodge the first information report.
13. Although, the informant and his daughter, the victim have concealed that the informant is a Chowkidar. Mithai PW-3, who is a hostile witness, whose evidence could also be relied on, has admitted that Ram Murat is the Chowkidar of the village and he is the Chowkidar of the Police Station Shyam Deorwa, where the report was lodged and he also goes twice to the Police Station for his attendance. Even PW-4, Rajendra who as per version of the informant is related to informant, has admitted that the informant is Chowkidar of Police Station Shyam Deorwa who has to go to get his attendance mark at the police station twice a month.
14. Thus, the inordinate delay in lodging the first information report is not at all explained. The delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search, if any, explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot be itself be a gerund for disbelieving and discarding the entire prosecution case as has been laid down in (2001) 6 SCC 71, State of Himacha Pradesh vs. Gian Chand.
15. Thus, as I have said earlier, the prosecution has miserably failed to explain the delay which casts a shadow of doubt on the whole prosecution case.
16. As far as, the kidnapping and raping the victim is concerned, the age of the victim as per the medical report is about 15 years. Her hymen was not found intact and the vagina was admitting index finger. As per the statement of Dr. Abha Gupta, no signs of struggle were found on the body of the victim. But contradicting to her report, she has stated that the hymen was intact which she has explained was that the hymen was not in its natural and actual position. Thus, the evidence of this witness is contradictory to her medical report Exhibit Ka-5.
17. Dr. Rajeev Ranjan PW-7 has stated that in any event of the matter, the age of the victim is below 17 years.
18. In (2009) 15 SCC 566, Tameezuddin Alias Tammu vs. State (NCT of Delhi) the Hon'ble Apex Court has 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. We are of the opinion that the story is indeed improbable."
19. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroboration of the evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability.
20. The father of the victim Ram Murat has admitted that his daughter is very obedient, very simple and obeys everything, said by him. I have no doubt that the victim is a minor but her evidence has to be scrutinized very carefully and since the prosecution has come forth with the specific case that she was seen being taken away by the accused persons by the witnesses Mithai and Rajendra, this definitely, the court will seek corroboration of her statement by the statement of Rajendra and Mithai who have been produced as persecution witnesses. Mithai is PW3 who has stated that he had no conversation with Ram Murat about the victim, nor he saw the accused persons taking away the victim. This witness was declared hostile and cross-examined by the prosecution who has admitted that the accused persons were resident of another village, whereas the informant was a Chowkidar of the Police Station Shyam Deorwa where the report was lodged. Rajendra, who as per the informant, is his brother belonging to the same village has stated that he did not see the accused taking away the victim nor he told this incident to the informant. He was also declared hostile by the prosecution and was cross-examined, in which he denied of having given any statement to the I.O. under Section 161 Cr.P.C. Thus, the witnesses Mithai and Rajendra have denied of having seen the accused persons taking away the victim.
21. Coming to the factum of rape, the victim has stated that when she was going to attend the call of nature, Vinod and one another person met her. They dragged her in the house of Vinod Kurmi, threaten to kill her, if she would raise alarm and both the persons raped her against her wishes. She said that she recognized Vinod Kurmi but could not identify the other accused. Athough, her father PW-1 Ram Murat has stated that the victim had told him that Vinod Kurmi and Sunil have taken her daughter away and raped her. The victim had gone to the extent of saying that she did not know the name of the second man. She has stated that she was seeing upon by Rajendra and Mithai while she was taken away by the accused Vinod Kurmi and one other man, but the witnesses Rajendra and Mithai have denied of having seen any such occurrence. The victim has exonerated Sunil by saying that "fouksn dqehZ esjs lkFk xyr dke fd;k Fkk eqfYte lquhy esjs lkFk xyr dke ugha fd;k FkkA fouksn ds lkFk lquhy ?kVuk ds le; ugha Fkk cfYd nqljk dksbZ vkneh Fkk ftldk uke eSa ugha tkurh vkSj vkt og vnkyr esa ugha gSA" When the witness was contradicted as to how she had named Sunil in her statement under Section 164 Cr.P.C., she stated that since the lady police had threatened her, she had implicated Sunil also in her statement under Section 164 Cr.P.C. No enmity with the lady police has been alleged and there is no reason why the lady police would compel the victim to state the name of Sunil is a million dollar question which remain unanswered because to do so, she would have to be inimical with Sunil which is not the question, in the present case. The victim has further stated that when the lady police threatened her, she did not complain about this matter to anybody, although the victim is a teenager but it appears that she is very good in changing her statement because she has stated that when Vinod and his companion were taking her away to the house of Vinod, nobody saw her. She was detained at the house of Vinod Kurmi. she did not go out of the house to attend the call of nature or to drink water. She has further stated that for three days, she did not eat anything. She has also gone to the extent of saying that when the accused persons left her and fled away, they kept on threatening her but Sunil was not amongst them. This negative evidence for Sunil indicates many things and also to falsify the theory.
22. The Investigating Officer has stated in his statement that he did, what he deemed correct. PW-9 S.I. Uma Shankar Yadav has also admitted that the informant is Chowkidar of his Police Station and he did not sent the clothes of the victim to the Forensic Lab because he did not think to sent them proper. Although the victim had handed over the clothes to him.
23. Thus, on what has been said and discussed above, I find that the evidence of the witnesses have major contradictions and the prosecution story is shaky, unreliable, not worthy of credence. Thus, the prosecution has miserably failed to prove the case against the appellant and the appeal is liable to be allowed.
24. Accordingly the appeal is allowed.
25. The impugned judgment of conviction and sentence dated 28.04.2011, passed by Additional Sessions Judge, Maharajganj, in Sessions Trial No. 163 of 2007 (State vs. Vinod Kurmi and another), registered as Case Crime No. 681 of 2007, under Sections 363, 366, 376, 506 I.P.C., Police Station Shyam Deorwa, District Maharajganj is hereby set aside.
26. The appellant Vinod Kurmi is in jail. He shall be released forthwith in this case. However, the appellant is directed to comply with the provision of Section 437-A Cr.P.C.
27. Let the copy of this judgment be sent to the trial court concerned for compliance.
Order Date :- 29.2.2016 sailesh