Arjun Sonkar vs State of U.P.

Ranjana Pandya, J.—This appeal has been preferred against the Judgment dated 26.8.2014 passed by the learned Additional Sessions Judge, Court No. 1, Basti in S.T. No. 8 of 2013, State Vs. Arjun Sonkar and others, arising out of Case Crime No. 382 of 2012 under Section 376(2)(g) I.P.C. Police Station Nagar, District Bareilly, whereby the accused Arjun Sonkar and Vijai Pal were found guilty and sentenced to undergo 10 years rigorous imprisonment each and a fine of Rs. 10,000/- with stipulation. Fifty per cent of the fine was directed to be paid to the victim.

Brief facts as unfolded in the prosecution case and F.I.R. are that an application was moved by the victim Smt. Baby addressed to the Superintendent of Police, Basti stating that on 11.11.2011 at 8 p.m. when she went to attend the call of nature, suddenly the accused Arjun and Vijai Pal caught her and raped her. When she came back to her house, she narrated the occurrence to her mother-in-law. On the next day, she went to the police station and narrated the occurrence but no action was taken, hence, she moved an application before the Superintendent of Police. On this application on the orders of the Superintendent of Police, a case at Crime No. 382 of 2012 under Section 376 I.P.C. was lodged by Constable Tilakram Gautam in chik (Ext. Ka-5). The matter was scribed in the G.D. which was proved as Ext. Ka-6 by P.W. 4 Constable Tilak Ram Gautam. Investigation of the matter was entrusted to Sub Inspector Ram Shanker Tiwari, who commenced the investigation. During investigation, he ensured the recording of statement of the victim. He recorded the statement of the informant, inspected the spot, submitted charge sheet against the accused and prepared proved it as Ext.-Ka-7. He further proved the site plan as Ext. Ka-8.

The prosecution examined as many as six witnesses. P.W. 1 is Baby, the victim, who proved the copy of application given to S.P. as Ext. Ka-1, application moved before the Magistrate as Ext.Ka-2, affidavit as Ext. Ka-3 and her statement recorded under Section 164 Cr.P.C. as Ext. Ka-4. P.W. 2 is Ishwar Chandra, who is the husband of the victim. P.W. 3 is Prabha Devi. P.W.4 is Constable Tilakram Gautam. P.W. 5 is S.I. Ran Vijai Singh and P.W. 6 is S.I. Ram Shanker Tiwari.

The statement of the accused was recorded under Section 313 Cr.P.C. in which he denied the occurrence and stated that he was falsely implicated due to enmity. The accused examined Ram Prakash as D.W. 1.

After hearing the counsel for the parties and perusal of the record, the learned lower court returned the finding of guilt against the accused. Feeling aggrieved the accused has come up in appeal.

Learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and, thus, the appeal is liable to be dismissed.

As far as the occurrence is concerned, the occurrence is said to have taken place on 11.11.2011 at 8 p.m. The report of the occurrence as per chik report (Ext. Ka-5) was lodged on 11.7.2012. Thus, there is an inordinate delay in lodging the F.I.R. As far as the explanation for delay given by the victim on this point is concerned, Baby (P.W. 1) has stated that on the next day, she went to the police station to lodge the report but no heed was paid. She waited for 2-4 days and then submitted an application to S.P., Basti on 14.11.2011. If the evidence of this witness is taken on its face value to be correct even then there will be an inordinate delay in lodging of the F.I.R. because firstly this application is dated 18.11.2011 in which time of the occurrence is wanting besides this three lines of the application have been crossed. Thus, the statement of the victim and the F.I.R. (Ext. Ka-1) are not in consonance. This witness has also proved and admitted her affidavit in which time of the occurrence has been mentioned. This affidavit has been sworn on 26.11.2011. This inordinate delay in lodging the F.I.R. casts a shadow of doubt on the prosecution case and, thus, the possibility of false implication cannot be ruled out.

As far as the occurrence is concerned P.W. 1 Baby has stated that at the time of the incident, Vijai Pal closed her mouth and Arjun raped her. She could not raise alarm because her mouth was closed. She has further stated that after Arjun raped her then Arjun and Vijai Pal set her mouth free. In cross-examination, this witness has stated that she told about the entire occurrence to her advocate who had written the report. In cross-examination, this witness has reiterated that the report was written by Ran Vijai Singh Advocate. Occurrence had been stated by the husband of the victim, namely, Ishwar Jain P.W. 2 who has stated that he took the application to the S.P. which he got written by Ran Vijai Singh Advocate who himself drafted the application and gave it to this witness. Thus, it appears that the F.I.R. is a coloured version given by an advocate. Baby (P.W.1) has stated that she had gone to attend the call of nature empty handed. She was not carrying water. She has said that she used to clean herself by a water tank which was ten kattha away from the place of occurrence. She has further stated that she never used to take water when she went to attend the call of nature and she never used to go to the tank to clean herself and used to return home and clean herself. Now, this is foreign to Indian culture as regards which P.W.2 Ishwar Chandra, husband of the victim, has said that we his wife attended the call of nature, she did not take water and how she used to clean herself he did not know.

The victim P.W.1 Baby in her cross-examination has stated that when she had gone to the police station, she was not carrying the F.I.R. She was empty handed. She was admitted that she is having bad relations with the families of the accused. Further she has stated that Vijai Pal is her pattidar. On the date of occurrence, her husband was at home. She had left her home by 8 p.m. whereas Ishwar Chandra (P.W.2) states that his wife had left her home at 7 p.m. but he was not present at home when his wife left the house. The victim P.W. 1 Baby has further stated that when Vijai Pal closed her mouth, she sustained injuries on her face but she did not get herself medically examined. She has further stated that on returning home, she told everything to her husband and mother-in-law. Nobody had seen her leaving the house and coming back. P.W. 3 is Prabha Devi, mother-in-law of the victim, who has stated that on the date of incident, the victim had gone at 6 p.m. to attend the call of nature and when she did not return for quite sometime, she went to search her daughter-in-law, who was traced out outside. She was weeping. She told her mother-in-law that Vijai Pal and Arjun had raped her. This is again in contradiction to the statement of Baby who has stated that she narrated the incident to her mother-in-law after she returned home. In cross-examination Prabha Devi (P.W. 3) has stated that she was told about the incident by the victim two hours after the occurrence and the victim had left her house to attend the call of nature at 6 pm. Thus, P.W. 1 Baby says that she left the house at 8 p.m. P.W. 2 Ishwar Chandra says that the victim left her house at 7 p.m. whereas P.W. 3 Prabha Devi says that victim left her house at 6 p.m. P.W. 3 Prabha Devi has stated that nobody saw the victim going or returning. Nobody also saw the accused persons. She has admitted that there is previous enmity between the family of the victim and the accused persons. Thus, the evidence of P.W. 3 Prabha Devi makes it clear that there is enmity between the parties and, thus, possibility of false implication cannot be ruled out. P.W. 2 Ishwar Jain being husband of the victim has stated that he had not seen the occurrence. What he is stating was narrated to him by his wife.

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 in 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 after the crime. Her testimony has to be appreciated o n 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, if may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu @ Undrya Vs. State of Maharashtra, .

The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consedent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare and Others Vs. State of Maharashtra, .

Reverting to the statement of P.W. 1 Baby, she has stated that she does not remember the date of the incident whereas she has specifically stated the date when she moved the application before the S.P. Baby has stated that when she was returning, she did not meet any person from the village and nobody saw going or coming back. Contradicting herself, she has said that she did not sustain any injuries. Admittedly, she is married lady with children. Thus, the statements of P.W. 1 Baby, P.W.2 Ishwar Chandra and P.W. 3 Prabha Devi are absolutely contradictory to each other.

P.W. 3 Investigating Officer S.I. Ram Shanker Tiwari has stated that he was not told whether the husband of the prosecutrix was working at Lucknow on the date of occurrence. He has also stated that he did not receive any application, which is said to have been moved by the prosecutrix under Section 156(3) Cr.P.C.

D.W. 1 Ram Prakash has given negative evidence regarding the occurrence which is not reliable. But since the prosecution has miserably failed to prove its case beyond reasonable doubt and the whole prosecution case is improbable and unreliable, hence, the accused are entitled to acquittal. The conviction cannot be upheld. The appeal is liable to be allowed.

Accordingly, the appeal is allowed. The Judgment dated 26.8.2014 passed by the learned Additional Sessions Judge, Court No. 1, Basti in S.T. No. 8 of 2013, State Vs. Arjun Sonkar and others, arising out of Case Crime No. 382 of 2012 under Section 376(2)(g) I.P.C. Police Station Nagar, District Bareilly is set aside.

The accused is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. Shall be complied with.