Chhatra Pal vs State of U.P.

Ashwani Kumar Singh, J.—This appeal under Section 374(2) Cr.P.C. has been preferred by appellant Chhatra Pal son of Brij Lal against the judgment and order dated 21.03.1998 passed by learned Sessions Judge, Sitapur in Sessions Trial No. 733 of 1997 (case crime No. 141 of 1996 under Section 376 I.P.C., police station Sidhauli, district Sitapur) convicting and sentencing the appellant under Section 376 I.P.C. for a period of seven years'' R.I.

Briefly stated, the facts of the case are that the victim P.W. 1 on 28.06.1996 at about 3.00 p.m. had gone to fetch fodder for bullocks. She was cutting fodder, in the meantime, it started raining, as a result of which, she went in the nearby mango grove and stood under a mango tree. Accused Chhatrapal was digging out stems of Arhar plants in the adjoining field. He came and asked the victim the whereabouts of her husband. The victim informed that since he was not well as such he did not come. Thereafter when she moved towards her field, appellant Chhatra Pal caught hold of her and threatened her with dire consequences. Appellant Chhatra Pal made her fell down. The victim raised alarm but the same could not be heard by villagers. Appellant Chhatra pal forcibly committed rape on the victim. He fled away after committing rape on the victim against her will. She has further alleged in the F.I.R. that she returned to her home crying and narrated the incident to other persons of the village who reached at the place of occurrence where they could not find accused appellant. The victim also stated in the F.I.R. that she suffered mental and physical agony and due to fear, she could not go to lodge the F.I.R. on the same day.

A typed F.I.R. (Ext. Ka-1) was lodged at police station on 29.6.1996 at 14.40 hours. On the basis of Ext. Ka-1, chick F.I.R. (Ext. Ka-2) was prepared. The prosecutrix was sent for medical examination. She also got herself x-rayed and her age was opined above 18 years. Medical examination report (Ext. Ka-4) and supplementary report (Ext. Ka-5) were prepared. X-ray plate (Ext. Ka-1), X-ray report (Ext. Ka-7) and Pathology report (Ext. Ka-6) were also prepared.

At the initial stage, the case was investigated by S.I. Ram Raj Pandey but at the later stage, S.I. B.L. Yadav submitted the charge-sheet (Ext. Ka-9).

The case was committed to the court of Sessions. Charges were framed under Section 376 I.P.C. Appellant Chhatra Pal pleaded not guilty and claimed to be tried. He stated that he has falsely been implicated in the case due to enmity. In defence, he filed Ext. Kha-1 and Ext. Kha-2. No oral evidence was adduced in defence.

I have heard learned counsel for the appellant and learned counsel for the State.

In this case, the victim has been examined as P.W. 1 who is the informant. The genuineness of the documents has been admitted by the defence. Hence, the prosecution has not examined any other witness. The entire prosecution case rests on the sole testimony of the victim P.W. 1.

Hon''ble the Supreme Court in a catena of judgments has laid down that the sole testimony of the victim, if found worthy of credence, the Court can hold the accused guilty of the offence, as such, in the present case, the testimony of the victim is to be scrutinized with caution.

The victim in the present case had lodged a typed F.I.R. on the next day of the occurrence at about 14.40 hours i.e. after delay of about 24 hours. P.W. 1 the victim has deposed that on the day of the incident at about 3.00 p.m., she had gone to fetch fodder for bullocks. While she was cutting fodder, it started raining, as such, she went to nearby mango grove and stood under a mango tree. The appellant Chhatra Pal was uprooting stems of Arhar (plants). He came near to the victim and inquired the whereabouts of her husband. She replied that since he was not feeling well, as such, he did not come along with her. As soon as, she moved towards the field, appellant Chhatra Pal caught hold of her and threatened with dire consequences. He made her fall down. The victim raised alarm but the same could not be heard by villagers. As such, none turned up at the spot. The present appellant Chhatra Pal then forcibly committed rape against her wish and after committing rape he fled away. She further states in her examination-in-chief that the appellant had removed her saree before committing rape. She rushed towards her home crying and narrated the incident to her husband. This witness has stated that she went to lodge the F.I.R. on the next day. She did not go to lodge the F.I.R. on the same day due to fear and self respect. She dictated the report and got it typed at ''Sidhauli''.

The victim was medically examined on 30.06.1996 and no mark of injury was found on any part of her body; secondary sex characters-Breast well developed, public and auxiliary hair were present. There was no mark of injury on thigh and vulva, hymen old, torn and well healed up edges. No internal bleeding or injury present, vaginal smear taken and sent for pathological examination for evidence of spermatozoa. The supplementary report of the victim indicates her age to be above 18 years. No opinion about rape could be given. Pathology report indicates vaginal smear negative for spermatozoa.

Since the age of the prosecutrix according to the radiological report was above 18 years and no sign of rape was found on her body or private parts, as such, the question which arises to be determined is whether the appellant is guilty of the alleged offence or not.

Now, the first question which arises in the present case is whether the explanation given by the prosecutrix for lodging the F.I.R. on the next day is plausible or not.

Hon''ble the Supreme Court has laid down in various decisions that in case of rape, self-respect and dignity of victim is involved, the victim has to get prepared mentally to depose the incident of which she has been the victim. Ordinarily, it is hard for the victim to come out of the disgusting act of the accused, thus, making difficult for the victim or her family members to lodge the F.I.R. at the earliest but if the F.I.R. has been lodged with delay and there is no plausible explanation then the inference which could be drawn is that it has been lodged after consultation and deliberation. It automatically creates doubt on the prosecution version.

The victim P.W. 1 has stated in the first information report that the appellant after committing rape on her had fled away and she rushed to her village crying and narrated the incident to several persons of village who then visited the place of the incident where appellant was not found. The explanation given by her for not lodging the F.I.R. on the very same day of the incident was due to fear of the accused. If this situation is visualized then the inference that could be drawn in this particular case is that there is delay in lodging of the F.I.R. It cannot be said that the victim was under shock of her respect and dignity, according to her own statement she had narrated the incident to several villagers. In the present case, it also cannot be said that after the victim recovered from trauma she went to lodge the F.I.R. In the statement adduced in the court, she has also stated that she had narrated the incident to her husband. The explanation given by the victim P.W. 1 is not at all plausible and deserves to be thrown out.

The delay in lodging the F.I.R. in criminal cases is always fatal where there is no plausible explanation. Though, Hon''ble the Supreme Court in cases of rape have repeatedly impressed that delay in cases of rape is not of much importance as the victim is under a shock and trauma of the act done on her, she feels ashamed of narrating the incident to anyone but in the present case, the facts are otherwise.

Hon''ble Supreme Court in a case of Rajesh Patel Vs. State of Jharkhand, has taken a strong view where there was no proper explanation of delay. In this case also the victim had narrated the offence committed by the appellant to her mother. The F.I.R. was lodged with delay of 11 days and the explanation given by the victim regarding the delay was that at the time of commission of the offence the appellant had threatened her that in case she lodges any complaint against him, she would be killed. Hon''ble the Supreme Court observed that the said explanation was not a tenable explanation.

In the case in hand, the F.I.R. was lodged on the next day after it was got typed on the dictation of the victim herself having no plausible explanation. The trial court has not scrutinized this aspect of the matter with utmost care and caution and the inference drawn is not convincing and acceptable.

The most surprising feature of this case is that the victim herself has lodged a typed report of the incident which she had dictated to a typist at Sidhauli, it definitely creates doubt on the truthfulness of this witness. Normally, complainant lodges written report in his/her own handwriting or in the handwriting of someone else, on his/her dictation. The entire evidence as deposed by the victim, on perusal, reveals that the victim has been properly tutored. The medical evidence also does not support the version of the victim. According to the radiological report, the victim was about 18 years of age. The prosecution has not led any documentary evidence on age. According to the medical jurisprudence there could be a variation of two years in age on either side and the learned counsel for the appellant contends that the benefit of age should be given to the accused appellant. Medical report indicates that no opinion regarding rape could be given.

The entire statement of the victim shows to be that either she cooked up the incident or she was a consenting party. The victim seems to be a bold and intelligent lady. An illiterate and rustic woman of the village would not go to get her version typed and then lodge the F.I.R. at police station. There is certainly someone behind the curtain who induced her to lodge a false report.

Learned court below in its judgment had discussed reported cases of Hon''ble the Supreme court but it may be pointed out here that the facts and circumstances of each case are always different. The facts of the present case have no applicability to those judgments.

Merely the statement of the victim, as in the present case, that she had been subjected to rape would not be sufficient to hold the accused guilty of the offence. Each and every statement deposed by the victim is to be scrutinized. In the present case, her own statement does not corroborate with the medical evidence

Thus, from the evidence on record as discussed above, I do not find that the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt.

After giving my anxious consideration and evaluating the entire evidence on record, I feel that the prosecution has failed to prove the guilt of the appellant. There is no clinching evidence on record which could make out case against the appellant. The entire medical evidence is against the statement of the victim. There is no evidence that the victim had shown any resistance. No mark of injury was found on her person. The victim herself dictated, a typed F.I.R. which was given at police station.

In view of what has been discussed above, I do not think that the judgment of conviction can be upheld. In the result, the appeal is allowed. The judgment and order dated 21.03.1998 passed by learned Sessions Judge, Sitapur in Sessions Trial No. 733 of 1997 (case crime No. 141 of 1996 under Section 376 I.P.C., police station Sidhauli, district Sitapur) is hereby set aside. The appellant is acquitted of the charges levelled against him. He is on bail. He need not surrender. His bail bonds are canceled and sureties are discharged.

The office is directed to communicate this order to the court concerned forthwith for compliance of the order and lower court record be sent back.