Manoj vs State of U.P

Ranjana Pandya, J.—1. This appeal has been preferred against the judgment and order dated 10.09.2015 passed Jamshaid Ali, Additional Sessions Judge (Fast Track Court), Aligarh in S.T. No. 652 of 2010 (State Vs. Ajay and others) arising out of Crime No. 286 of 2009, under Sections 363, 366 and 376 I.P.C., Police Station-Gabhana, District-Aligarh, whereby the accused Ajay was acquitted against the charges levelled against him, whereas accused Manoj was also acquitted for the charges under Section 363 I.P.C. The accused was found guilty and convicted under Sections 366 and 376 I.P.C., he was sentenced to five years rigorous imprisonment and fine of Rs. 5,000/- under Section 366 I.P.C., seven years rigorous imprisonment and fine of Rs. 5,000/- under Section 376 I.P.C. with default stipulation.

Facts as per the prosecution case are that the informant Veerpal Singh had lodged a written report on 27.8.2009 stating that on 7.7.2009 his daughter aged about 14 years was taken by Mamta, but she did not return. On 10.7.2009 he lodged missing report at Police Station-Gabhana. On 26.8.2009 he came to know that his daughter was living with Manoj in Village-Tilothi, Police Station-Shamli, District-Mahamaya Nagar. He went with his relatives and brought back his daughter, who told him that the daughter of Ramesh namely Mamta and Manoj had enticed her away.

P.W. 4 is Constable 929 Devendra Kumar who prepared the chick report on the basis of written report, which was proved as Exhibit Ka-5. He further scribed the G.D. and proved its copy as Exhibit K-6.

Investigation in the matter was entrusted to S.I. Hoti Lal Singh, who is P.W. 6. He copied the F.I.R., chick report in the case diary. He recorded the statement of the informant Veerpal Singh, inspected the spot, recorded the statement of the victim. Further, on 4.9.2009 he arrested the accused Manoj and recorded his statement. He copied the medical report of the victim in the case diary on the same day. The statement of the victim under Section 164 Cr.P.C. was got recorded and Section 376 I.P.C. was added.

On 1.10.2009 he recorded the statement of Ramesh, inspected the spot, prepared the site plan and proved it as Exhibit Ka-9. After this the witness was transferred and the investigation was proceeded with by S.I. Chiraunji Lai, P.W. 5. After perusing the case diary, this witness submitted the charge-sheet against the accused persons, which was proved as Exhibit Ka-7. The name of the co-accused Ajay came into light during the course of investigation. This witness has also submitted charge-sheet against co-accused Ramesh, which was proved as Exhibit Ka-8.

Dr. Beena Saxena P.W. 3 examined the victim. She did not find any external or internal injury on the body of the victim. The vagina admitted two fingers easily. She proved the medical report as Exhibit Ka-3 and supplementary report as Exhibit Ka-4.

The prosecution further examined P.W. 1 Veerpal Singh, the informant, who proved the written report as Exhibit Ka-9. P.W. 2 is the victim. The statement of the prosecution witnesses P.W. 3, P.W. 4. P.W. 5 and P.W. 6 has been discussed by me.

The statement of the accused was recorded under Section 313 Cr.P.C., who denied the occurrence and said that the victim and Mamta both were majors. They were displeased with their families, hence they left their home voluntarily and married Ajay and Manoj. They stayed together for three months. They kept visiting her father''s house and the accused had been falsely implicated.

The defence examined three witnesses. D.W. 1 is Constable 359 Ramveer Singh, who proved the missing report. D.W. 2 is Ramesh, who proved copy of the missing report as Exhibit Kha-1. D.W. 3 is Mamta, who is said to have eloped with the victim.

Having heard the learned counsel for the parties and perusing the record the trial court held the accused guilty and passed the sentence as stated in para 1 of the judgement.

Feeling aggrieved, the accused-appellant has come in the appeal.

I have heard the learned counsel for the parties and perused the record of trial court.

Learned counsel for the appellant has submitted that there is no evidence on record, on the basis of which the appellant could have been convicted by the trial court. But the trial court has based its judgment on surmises and conjectures.

On the other hand 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 the appeal is liable to be dismissed.

As far as F.I.R. is concerned, the F.I.R. was lodged on 27.8.2009, whereas the occurrence is said to have taken place on 7.7.2009. Although the missing report is said to have been lodged on 10.7.2009. In this regard, P.W. 1 Veerpal Singh has stated that his daughter eloped with Mamta, who did not return. Hence, he lodged a report against unknown persons. After sometime he came to know that his daughter was living at Dilihuti village at which he went there, where his daughter was traced from the house of Prem Singh, father of the accused Manoj.

He has further stated that when he found his daughter, he again submitted a report at the police station, but he does not know what was written in the report. He has admitted that prior to this a missing report was lodged on 10.7.2009. Why the informant did not inform the police in between 7.7.2009 to 10.7.2009 remain unexplained on the part of the prosecution. Thus, there is an over all delay in lodging the F.I.R., which casts a shadow of doubt on the whole prosecution case.

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 necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is no 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 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 vs. State of Maharashtra, , AIR 2006 SC 508.

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 consent 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 & Ors. vs. State of Maharashtra, , (1999) 1 SCC 220.

Since it is the case of defence is that the victim went on her own accord and she was a consenting party. Hence, the age of the victim has also to be looked into. As per the statement of P.W. 1 Veerpal Singh, the victim was mentioned to be 15 years of age in the missing report. The father of the victim could not specify the age of the victim. The father of the victim P.W. 1 Veerpal Singh has stated that his daughter-in-law was not at home, when the victim left the house. Contradicting the statement, the victim P.W. 2 has stated that when Mamta came to take her, she refused, but her sister-in-law persuaded her to go with Mamta. The victim has stated that her age was 15 to 16 years at the time of occurrence. It is trite law that the age of the victim has also to be determined under the Rule 12 of Juvenile Justice Care and Protection of Children Act, 2007. Thus, in the absence of any academic record, the age as determined by the Doctor has to be relied upon.

The Doctor has given the age of the victim to be 18 years. The occurrence relates to the year 2009, in which the age of the victim as far as consent is concerned was 16 years. Hence, definitely the victim was above 16 years of age at the time of incident keeping in view the position of fusion of her bones.

Veerpal Singh, P.W. 1 has stated that his daughter was recovered from Mahamaya Nagar not from the Tilothi. Although according to the F.I.R. the victim is said to have been recovered from Tilothi.

The victim P.W. 2 has stated that her father went to Village Tilothi one and half month afterwards. He was accompanied by some police personnel and relatives. At that point of time she was detained in a closed room. Thus, even the recovery of the victim is doubtful as to whether she was recovered from Tilothi or Mahamaya Nagar. Stating about the occurrence, P.W. 2 victim has said that after Mamta took her on the pretext of bringing her mark-sheet. Mamta gave her a "Samosa" and after eating the "Samosa" she started having nausea. Mamta brought her till Shashtri Gate, where Manoj and Ajay was standing on motorcycles. Both the girls sat on the motorcycles of Manoj and Ajay and went to Village Tilothi.

I fail to understand that if this witness was unconscious or having nausea, how she could sit alone on the motorcycle of the accused. Further, this witness has stated that from Gabhana both the friends had come by Tempo to Aligarh, because she was under intoxication at that time. All through this girl was travelling by motorcycle by Tempo, but she was intoxicated, this version is not at all reliable.

Further, P.W. 2 victim has stated that she sat on the motor cycle on the instigation of Mamta. She was feeling giddy, hence she forgot to telephone her family members. She has also admitted that during this period she went to Etah two or three times, she was accompanied with Mamta, Ajay and Manoj. She has further stated that she was taken two-three times to Etah also in intoxicated condition. But she again said as to what caused her intoxication she did not know. She has stated that she stayed for eight days at Etah. The accused did not permit her to go out. She had raised alarm, but since the gate was closed nobody heard her. Further this witness has admitted that she stayed at the house of Manoj for one and half month, where she was detained in a room. In the night Mamta used to catch her and take her and an old lady used to catch her and take her. She has not said that either Mamta or the old lady were at any point of time armed with any weapon. Why during this period, she could not raise any alarm is a question, which has not been answered by the prosecution.

P.W. 3 Beena Saxena did not find any symptoms of rape on the victim. Perusal of the missing report filed by father of Mamta namely Ashok is Exhibit Kha-1, in which it has been mentioned that on 7.7.2009 his daughter Mamta accompanied by the victim had left the house on their own will.

A perusal of the missing report, which has been proved by D.W. 1 Ramesh is necessary. The defence witnesses command the same respect as the prosecution witnesses do. In this regard the statement of Ramesh D.W. 2 is very important, who has said that his daughter Mamta had married the accused Ajay, who is the real elder brother of Ajay. D.W. 3 Mamta has stated that the victim used to study with her. Both the friends failed in High School. The victim was scolded by her father and sister-in-law and the witness Mamta was scolded by her parents. At this both the friends left their home on the pretext of obtaining the mark-sheet. They could not obtain the marksheet and decide to leave the home. They left the home and went to the relatives of the accused at Tilothi, where the victim married Manoj and this witness Mamta married Ajay and both the couples remained at Tilothi for two months. After that both the friends alongwith their husbands came to Panihawar. She has also stated that the victim was aged about 27 years, who was elder to this witness.

This witness was cross-examined, but there is nothing in her cross-examination, which could discredit her testimony. Thus, the incident has narrated by Mamta and her father appears to be correct. All along the victim was roaming with the accused, who was unarmed. She was travelling by motorcycle and tempo and was staying for two months without raising any alarm.

Keeping in view that the victim is above 16 years of age, it clearly indicates that she was a consenting party.

In the present case, the evidence of the victim is shaky, unreliable and improbable also.

Thus, in my opinion, since she as an interested partition and unreliable witness, who was a privy to the whole episode, therefore, to save her skin, she had narrated a fabricated version without lending assurance from any independent source her testimony was insufficient to hold the appellant guilty. As pointed out above, she had changed her version from time to time and, therefore, cannot be relied upon. This she seems to have been done to rectify her mistake committed by a damsel under infatuation, which is in far to perceive. Her hymen was found to be torn and healed with insertion of two fingers easily, which can be taken to be a prima facie evidence, on preponderance of possibility that the victim was used to carnal intercourse.

Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused-appellant is guilty for the offence charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgment of conviction and sentence dated 10.09.2015 passed Jamshaid Ali, Additional Sessions Judge (Fast Track Court), Aligarh in S.T. No. 652 of 2010 (State Vs. Ajay and others) arising out of Crime No. 286 of 2009, under Sections 363, 366 and 376 I.P.C., Police Station-Gabhana, District-Aligarh, is hereby set aside.

Accordingly, the appeal is allowed.

The appellant is on bail. His bail bonds are cancelled and the sureties are discharged. However, the appellant is directed to comply with the provision of Section 437-A Cr.P.C.

Let a copy of this order be sent to the trial court concerned for compliance of the order.