Ghulam Sarvar vs State of U.P.

Ranjana Pandya, J.—The present appeal has been preferred against the judgement dated 22.1.2014 delivered by Additional Sessions Judge, Court No. 10, Varanasi in S.T. No. 729 of 2010, under Sections 363 , 366 , 376 I.P.C., Police Station-Cantt, Varanasi, whereby the accused Ghulam Sarvar was found guilty under Section 366 and 376(1) I.P.C. and sentenced to five years rigorous imprisonment coupled with Rs. 2,000/- fine and eight years rigorous imprisonment coupled with Rs. 6,000/- fine respectively with default stipulation. All the sentences were to run concurrently.

The prosecution story in brief are that on 3.12.2010 an application was moved by informant Om Prakash Gupta under Section 156(3) Cr.P.C. stating that his daughter Shashi Prabha aged about 15 years, whose date of birth is 18.11.1995, who was known to one Ghulam Sarvar accused, took away his daughter on 20.9.2010 at about 4:00 a.m. The informant came to know that Shashi Prabha was kept by the accused in his house. The father of the accused and his three sisters assisted him in this act. After the occurrence the police was informed, but nothing was done in the matter.

On 1.12.2010 a telegram sent to the D.I.G., but no action was taken, hence the application was moved. This application was ordered to be registered as an F.I.R., which was proved by Om Prakash Gupta P.W. 1. P.W. 2 is Indu Gupta, wife of the informant and mother of the victim. P.W. 3 is Shashi Prabha the victim. P.W. 4 is Dr. Padma Gupta, who medically examined the victim and proved the medical report as Exhibit Ka-2 and the supplementary report as Exhibit Ka-3. She has further proved the ossification report as Exhibit Ka-4. P.W. 5 is Pushpa Shukla who is a witness proved the age of the victim and also proved the copy of the Transfer Certificate as Exhibit Ka-5. P.W. 6 is S.I. Sailesh, who investigated the matter. He recorded the statements of the informant Om Prakash Gupta, Shashi Prabha, the victim and inspected the spot, copied the statement of the prosecutrix recorded under Section 164 Cr.P.C., prepared the site plan and proved it as Exhibit Ka-6 and finally submitted the charge-sheet against the accused and proved it as Exhibit Ka-7. P.W. 7 is Ram Subhag, who has proved the chick report as Exhibit Ka-8 and copy of G.D. Exhibit Ka-9. After production of 7 witnesses, the prosecution closed its evidence.

The statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence and stated that he had been falsely implicated. He produced D.W. 1 Mohd. Haneef as his witness, who stated that the accused and the victim was living together as husband and wife in his house as tenant.

The learned lower court after perusing the record and hearing learned counsels for the parties, returned the finding of the accused and sentenced him as aforesaid. Being aggrieved, the appellant has come in the revision.

I have heard the learned counsel for the parties and perused the record. The following points were raised before this court during the course of the arguments:--

(i) The F.I.R. is highly belated, which belies the whole prosecution story.

(ii) The victim is a consenting party and she is major. The evidence of the witnesses is shaky, unreliable and unworthy of credit. Hence, the conviction is bad in the eyes of law.

(I) The F.I.R. is highly belated, which belies the whole prosecution story

It has been contended on behalf of the appellant that the F.I.R. is highly belated, which is casts a shadow of the doubt on the whole prosecution theory. The occurrence is said to have taken place on 20.9.2010 at 4:00 a.m. The report was lodged on 25.12.2010 at 15:30 hours. The distance of the police station from the place of the occurrence being 6 kms and no explanation has been given for the delayed F.I.R., which was lodged on the basis of an application moved under Section 156(3) Cr.P.C. on 3.12.2010.

The occurrence is said to have taken place on 20.9.2010 at 4:00 a.m. and according to the application under Section 156(3) Cr.P.C. Exhibit Ka-1 for the first time, the matter was reported to the Deputy Inspector General by telegram on 1.12.2010, thus, the delay of two months and ten days in firstly reporting the matter itself speaking volumes.

A prompt F.I.R. fades chances of false implication, whereas if the F.I.R. is delayed the chances of false implication cannot be ruled out.

P.W. 1 informant, who has stated that on 27.9.2010 he moved an application to the Inspector General, but since nothing was done, hence he moved an application on 1.12.2010 to the D.I.G. and finally on 3.12.2010 moved an application under Section 156(3) Cr.P.C. He has not given any reasonable and plausible explanation for the delay. Although the mother of the victim Indu Gupta has tried to say that due to reputation of the family, she kept quiet, but this appears to be false excuse on the part of P.W. 2 Indu Gupta.

Om Prakash Gupta, P.W. 1 could not give any explanation for the delay, thus, there is no explanation for the delay what to say of reasonable explanation. Thus, I conclude that there are chances of false implication due to delay in lodging the F.I.R., if the case is otherwise not proved.

(ii) The victim is a consenting party and she is major. The evidence of the witnesses is shaky, unreliable and unworthy of credit, hence the conviction is bad in the eyes of law.

As far as age of the victim is concerned Pushpa Shukla, P.W. 5 who was the acting Principal produced and proved the copy of Transfer Certificate as Exhibit Ka-5.

Perusal of Exhibit Ka-5 copy of Transfer Certificate shows that there is overwriting in the column of the date of birth, the Transfer Certificate Register is also wanting. In cross-examination this witness P.W.5 Pushpa Shukla has stated that the date of birth of the victim was recorded according to the statement given by her parents. She has also stated that on the basis of age, the date of birth was mentioned in the Transfer Certificate which was not before this witness, when she was stating before the court. She has also specified that the Transfer Certificate does not bearing the signature of the Principal, but it bears the signatures of the clerk. Thus, in view of the cross-examination of this witness, this Transfer Certificate is not reliable. As far as the Radiological and ossification report, the age of the victim is about 17 years, as per Exhibit Ka-3 and Ka-4 respectively. Margin of two years can be given on either side as regards the age opined by the Doctor as per the ossification report, hence according to the evidence available on record, the victim appears to be a major. As far as the evidence regarding rape is concerned Om Prakash Gupta, P.W. 1 has said that the accused took away his minor daughter on 20.9.2010 at 4:00 a.m. But, this statement is not finding support from the other evidence adduced on behalf of the prosecution.

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 the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate 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 would 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 on 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, it 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, .

P.W. 1 Om Prakash Gupta has admitted that the accused came to his house on 25.7.2010, 8.8.2010 and 1.9.2010, the accused had taken the victim, her mother and her brother to Mirzapur and later on all the family members went to Bahraich alongwith the accused. He has specifically stated that his daughter had gone with the accused under the guardianship of her mother and all along, she remained with the accused under the guardianship of her mother. He has stated that till 18.9.2010, the whole family members stayed with the accused. During the stay with the accused, victim and family members of the victim, this witness P.W. 1 did not know about the illicit relations of the accused and the victim, but the had to change their programme and had to return to their house, because his wife had seen her daughter in a compromising position with the accused. His wife had seen the victim and the accused in a compromising position on 18.9.2010 at 2:00 O''clock in the day. He said that he scolded his daughter for this Act and had also given her a beating. The father of the victim brought took his daughter and the accused to his home inspite of seeing them in a compromising position, because he had to reward the accused.

This is a very strange and undigestible argument. Inasmuch as after seeing a daughter in a compromising position a mother could not ever dare to bring the rapist to her own house alongwith the victim to reward him. The mother of the victim has stated that the accused was known to the family of the victim from before. On 19th September, 2010 they were returning to their house, she found that her daughter and Ghulam Sarvar was missing. After lodging the report, they started tracing the daughter, they went to Bahraich to trace her daughter, when she was going to Bahraich, she saw her daughter and the accused in another train. She and her husband apprehended Ghulam Sarvar and the victim in the train. They were going at Mankapur Station and Ghulam Sarvar was handed over to the railway police. She has further stated that Ghulam Sarvar and the victim were apprehended and handed over to the police on 16.1.2011.

She has further admitted in her cross-examination that she had invited Ghulam Sarvar who took her and the family members to Bahraich. She has denied that she knew about the illicit relations of her daughter and Ghulam Sarvar, whereas her husband has specifically stated that P.W. 2 had seen the victim and the accused in a compromising position. Thus, there is contradiction about, how the accused was arrested, inasmuch as Shashi Prabha was compelled to admit that the accused was apprehended in the train alongwith her by her family members. Shashi Prabha in her chief-in-examination stated that Ghulam Sarvar took her from her house, she stayed with him for four months and Ghulam Sarvar raped her for four months and kept her at Bahraich, but she has admitted in so many words that her mind was not working, hence, she went with him and she did not know how she reached Bahraich with Ghulam Sarvar.

In cross-examination, this witness has stated that Ghulam Sarvar forcibly married her, she lived in Bahraich at a rented home with the accused, but she does not know in which house she stayed at Bahraich. They were living in a room with attached latrine and bathroom. She has admitted that she was accompanying Ghulam Sarvar, when he was going back from Bahraich to Varanasi and she was apprehended with the accused in the train. This witness shattering the prosecution theory and has stated that at night she eloped from her house. As far as the arresting of the accused is concerned, the I.O. P.W. 6 has stated that he arrested the accused on 18.1.2011 from Cantt Station and recovered the victim, whereas according to the victim and her parents she was apprehended from the train by her parents on 16.1.2011.

The victim lived with accused as his wife for four months, but she did not raise any alarm. This fact find support from the statement of the Mohd. Haneef D.W. 1, who has stated that the accused stayed on rent in his room for about four months. His wife was also living with him and his wife used to talk to the other members living in the house. Further the statement of Dr. Padma Shukla is very relevant, who has stated that when she examined the victim on 18.1.2011. The victim was not pregnant, whereas the mother of the victim namely Indu Gupta has stated that on 16.1.2011, her daughter was recovered and on 22.2.2011, she got her daughter''s pregnancy terminated at Mukti Clinic, thus, either the statement of the Doctor is incorrect or the statement of the witness is incorrect.

Shashi Prabha, P.W. 3 has also admitted that 2-3 months, after the occurrence, her mother consulted the Doctor, who told her mother that she was pregnant and the pregnancy had to be got terminated. If, according to the Doctor on 18.1.2011, the victim was not pregnant, then how is it possible that on recovery, after three months, the victim was found pregnant and her pregnancy had to be got terminated. Thus, it appears that the whole prosecution theory has no legs to stand and the victim is giving tutored statement just to save her skin. The factum of rape does not stand proved.

The F.I.R. is highly belated. The evidence of the prosecution witness is not reliable and is shaky. Hence, I conclude that the trial court has based its conviction on evidence, which was not trustworthy. The trial court has wrongly convicted the accused, although there is no evidence on record to convict the accused. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 22.1.2014 delivered by Additional Sessions Judge, Court No. 10, Varanasi in S.T. No. 729 of 2010, under Sections 363 , 366 , 376 I.P.C., Police Station-Cantt, District-Varanasi, is hereby set aside.

Accordingly the appeal is allowed.

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