Mukesh Singh Yadav and Others vs State of U.P.

Ranjana Pandya, J.—1. Challenge in this appeal is to the judgement and order dated 13.10.2015 passed by Shri Harkesh Kumar, Additional Sessions Judge (Fast Track Court), Lalitput in S.T. No. 27 of 2008 arising out of Crime No. 2755 of 2006 (State v. Mukesh Singh Yadav and others), under Sections 363, 366 and 376 I.P.C., Police Station-Lalitpur, District-Lalitpur, whereby accused Mukesh Singh Yadav, who was found guilty and was sentenced to five years rigorous imprisonment and Rs. 5000/- fine under Section 363 I.P.C. and further convicted under Section 366/34 for seven years imprisonment and Rs. 7000/- fine and further convicted under Section 376 I.P.C. for seven years imprisonment and Rs. 7000/- fine. Accused Rajesh Rai was found guilty and sentenced to four years rigorous imprisonment and Rs. 4000/- fine under Section 363/34 and five years rigorous imprisonment and Rs. 5000/-fine under Section 366 I.P.C. with default stipulation.

Filtering the unnecessary details, the prosecution case is that a written F.I.R. was lodged by Rao Raja on 28.12.2006 stating that his daughter aged about 16 years was enticed away by the accused-appellants namely Mukesh Singh Yadav and Rajesh on 19.11.2006, when she had gone in the village to attend the call of nature. Bhawani Singh and Ram Kumar belonging to the village has stated that they had seen the victim with Mukesh and Rajesh at the Railway Station. When Mukesh was questioned as to whether he was going, he stated that the father of the victim was sick and they were going to see him. Gyani Rajak belonging to the same village had also informed the informant that he had seen Ram Kishan, Mukesh and Rakesh with the victim. She was being traced, but she could not be traced. The informant had full belief that his daughter was enticed away by Mukesh, Rajesh and Ram Kishan. On the basis of this F.I.R., investigation was entrusted to the Investigating Officer.

The prosecution examined seven witnesses. P.W. 1 is Rao Raja, the informant, who proved the written report as Exhibit Ka-1 and the recovery memo as Exhibit Ka-2. P.W. 2 is Dr. Mukesh Kumar Chaudhary, who proved the pathological report as Exhibit Ka-3. P.W. 3 is Dr. Alka Agrawal, who examined the victim. She did not find any injury on the body of the victim and opined the age of the victim to be above 18 years and proved the medical report as Exhibit Ka-4 and supplementary report as Exhibit Ka-5. P.W. 4 is Head Constable Ram Kishan, who scribed the chick report. He also proved the copy of the G.D. as Exhibit Ka-6. P.W. 5 is Hari Singh in whose presence the accused alongwith the victim were arrested. He proved the recovery memo as Exhibit Ka-7. P.W. 6 is the victim. P.W. 7 is the Investigating Officer, who prepared the site plan and proved it as Exhibit Ka-8. Further he submitted the charge-sheet against the accused persons and proved it as Exhibit Ka-9.

The statement of C.W. 1 Najneen Begum, Principal was recorded by the court, who proved the copy of admission register as Exhibit C1. The statement of accused was recorded under Section 313 Cr.P.C., in which both the accused denied the occurrence. The accused Rajesh Rai has stated that since Mukesh is his friend, hence he has been falsely implicated. The accused Mukesh has stated that the victim wanted to forcibly marry him for which he did not agree, hence he was falsely implicated due to enmity.

The defence examined of D.W. 1 Danveer, who proved the copy of the Parivar Register as Kha-1.

After hearing learned counsels for the parties, the learned lower court returned the finding of guilt against the accused.

Feeling aggrieved, the accused preferred the appeal.

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

Learned counsel for the appellants has submitted that the learned trial court has based its findings on surmises and conjectures and the conviction of the appellants is bad in the eye of law.

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.

On perusal of the chick report reveals that the report about the occurrence dated 19.11.2006 was lodged on 28.12.2006 at 1700 hrs. The distance of the police station from the place of the occurrence being 8 kms. As regard this delay, the informant in the F.I.R. has stated that Bhawani Singh and Ram Kumar told that they had seen the victim going with the accused. Further Gyasi had also stated that he saw the accused alongwith the victim. The informant was trying to trace the victim since that day, but she could not be traced.

The informant was examined as P.W. 1, who has stated that the accused took away his minor daughter, which was told to him by Gyasi after two days. He has further stated that since the victim was spinster, hence she was being traced, when she could not be traced, report was lodged. This witness was cross-examined on the point of delay in lodging the F.I.R., who has stated that on the next day of the occurrence, he had came to know about the names of the accused persons, but he did not lodge report on that date.

The victim could not be found at Neemkheda Teekamgarh Baro. The victim was recovered about one month and 10 to 11 days at the police station. In cross-examination, this witness has stated that when he had lodged the report, the victim was recovered by the police. He has further admitted that on the day of occurrence itself the whole village had came to know about the incident. Thus, there is no reason why when the witness came to know about the incident even presumed to be after two days as has stated by him, there is no reason why he did not lodge the report.

The delay in lodging the F.I.R. has been discussed by Hon''ble Apex Court in Criminal Appeal No. 763 of 2008 Satpal Singh v. State of Haryana decided on 28th July, 2010 in which it has been observed that the delay in lodging the F.I.R. in sexual offence has to be considered with the different yardstick. No doubt in cases of rape or missing of young girls, the family members are hesitant to lodge the report on the ground of the reputation of the family being at stake. But in this particular case, although the names of the accused persons were known to the informant and his search for the girl was not fruitful. It was obligatory for him to lodge the report, thus this inordinate delay in lodging the F.I.R. is fetal for the prosecution.

As regards the age of the victim is concerned P.W. 1 Rao Raja has stated that at the time of the occurrence, his daughter was about 16 years of age. The age of the victim has to be determined by Rule 12(3) of the Juvenile Justice (Care and Protection of Children), Rules 2007. As per these rules only the medical report is admissible inasmuch as the annual mark-sheet, Parivar Register stating date of birth of the victim and the entries register have to be excluded. She would be above 17 years as per the medical report, which is Exhibit Ka-5. The age of the victim was opined to be above 18 years. The age of consent for rape at the relevant period was 16 years. Hence, the age of the victim at the time of occurrence definitely comes to be above 16 years.

As far as the factum of rape is concerned it is well settled law that 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 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 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 v. 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. v. State of Maharashtra, , (1999) 1 SCC 220.

P.W. 1 father of victim has stated that when the victim had gone to attend the call of nature then he was at his house. His other family members were also at the house. The victim P.W. 6 has stated that on the date of occurrence, her father was sick and was admitted in the Hospital at Jhansi. This makes it crystal clear that the prosecutrix is trying to state incorrect facts before the court and is trying to gain sympathy of the court by stating incorrect facts. If the father of the victim was at her house and was hale and hearty, there was no reason why the victim went alongwith the accused on the pretext seeing her ailing father at Jhansi. Thus, the base of the prosecution case has no legs to stand.

Further P.W. 6 the victim has stated that when Mukesh met her and asked to accompany him to Jhansi to see her father, he was accompanied by Rajesh, but she did not told her family members that she was going with Rajesh and Mukesh to Jhansi. She has also stated that when both the accused took her to Jhansi, Rajesh told her that her father had been discharged from the Hospital and both the accused took her to Hoshangabad (M.P.), where she was detained in a room for 8 to 10 days, where she was raped by Mukesh. Further this witness has said that Mukesh took her from Hoshangabad to Delhi and two other unknown places from Delhi onwards, where she was detained for 20 days at which places Mukesh forcibly raped her. Then Mukesh brought her back to Lalitpur Railway Station, where she was recovered. In cross-examination this witness has admitted that after the occurrence she has married, she had faith on the accused that is why she went with him without informing her family members.

Further she has stated that on the way from Jhansi to Hoshangabad, she did not raise any alarm in the train. She did not also raise any alarm at Hoshangabad Railway Station, nor she wicked. She has also stated that she stayed at Hoshangabad for 10 days with the accused Mukesh, but during these 10 days also she did not raise any alarm, because the room was always closed. When they left Hoshangabad to go to Lalitpur even then she did not raise any alarm because the accused had threatened her. She had denied that the accused Mukesh had any arms. Mukesh took her two unknown places from Hoshangabad in a train, but she did not raise any alarm. In the unknown city, she did not raise any alarm, where she stayed for 20 days. She has admitted that she did not resist Mukesh from raping her due to fear. Although, the witness has admitted that the accused Mukesh had not any weapon. Even a doctor Alka Agarwal P.W. 3 did not find any external or internal injury on the body of the victim. Although, the father of the victim P.W. 1 Rao Raja has stated that his daughter has sustained injuries. Although the absence of injuries on the body of the prosecutrix is not sufficient to discredit her evidence, but in this particular case, she has admitted that the accused were not armed with any weapon and all through she moved to various places for one month and about 11 days, but she did not raise any alarm.

I am conscious of the fact that in a matter of rape the statement of the prosecutrix must be given permanently consideration, but, at the same time, the burden with the prosecution that he has to be proved its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that the prosecutrix would always tell the entire story truthful as has been laid down in 2010 CRLJ Page 2060 Anwar Ahamd Chaudhary v. State of Assam.

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 done to rectify her mistake committed by damsel under infatuation, which is in far to perceive. Her hymen was found to be torn and heal 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, the court has left with the sole testimony of the prosecutrix, which is unreliable, untrustworthy and unworthy of credence. 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 are guilty for the offence charged. 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 13.10.2015 passed by Shri Harkesh Kumar, Additional Sessions Judge (Fast Track Court), Lalitpur in S.T. No. 27 of 2008 arising out of Crime No. 2755 of 2006 (State v. Mukesh Singh Yadav and others), under Sections 363, 366 and 376 I.P.C., Police Station-Lalitpur, District-Lalitpur, is hereby set aside.

Accordingly, the appeal is allowed.

The appellants are in jail. They shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

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