Pokhar and Others vs State of Rajasthan

R.S. Chauhan, J.—Aggrieved by the judgment dated 5.7.2008 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sikar, the appellants, Pokhar and Ramdev have filed two different appeals before this court. While Pokhar has filed D.B. Criminal Appeal No. 753/2008, Ramdev has filed D.B. Criminal Appeal No. 734/2008. Since the same judgment is being impugned in both the appeals, they are being decided by this common judgment.

By judgment dated 5.7.2008 the learned Judge has convicted both the appellants for the offences under Sections 366, 376(2)(g) IPC, and for the offence under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. For the offence under Section 366 IPC, they have been sentenced to ten years of rigorous imprisonment, imposed with a fine of Rs. 1000/-, and directed to further undergo three months of rigorous imprisonment in default thereof.

For offence under Section 376(2)(g) IPC they have been sentenced to ten years of rigorous imprisonment, imposed with a fine of Rs. 2000/-each, and directed to further undergo six months of rigorous imprisonment in default thereof.

For offence under Section 3(2)(v) SC/ST Act, they have been sentenced to life imprisonment, imposed with a fine of Rs. 1000/- each, and directed to further undergo three months of rigorous imprisonment in default thereof.

Briefly, the story of the prosecution is that on 22.10.2003 Smt. Bimla (P.W.4) filed a criminal complaint (Ex. P.1) before the Addl. Chief Judl. Magistrate, Neem-Ka-Thana, against Sriya @ Sriram, Smt. Rama, Leelaram, Ramdev, Pokhar, Radhey Shyam and Subhash. In the complaint, she claimed that "she along with her family are residents of village Luharbas, Police Station Neem-Ka-Thana, District Sikar. Both, her husband and she protect the crops from animals, and in this way they earn their living. On 18.9.2003 around 10 o''clock at night, Sriya and his wife, Rama came to their house. They took her husband and her to a different place on the pretext that they will go to another place for protecting the fields from animals. She left her daughter, (the name of the daughter has been withheld in order to protect her identity. Henceforth, she will be referred to as ''the victim'') 14 years old, and her other small children who are less than six years old. Next day, on 19.9.2003 when they came back home, they could not find the victim. They kept on searching for her, but could not locate her. Sixteen days ago, Jaggaram son of Jhutha Ram Gujar, resident of Chandoli, Hanuman son of Surja Bawariya, resident of Dudas, and Kesri wife of Hanuman Bawariya, resident of Dudas, told us that they had seen my daughter, the victim, near Jharna Baodi, with Ramdev son of Manglaram Gujar, resident of Kalakota, Pokhar son of Girdhari Gujar, resident of Chandoli, Radhey Shyam son of Manguram Gujar, resident of Dhani Chamaran Ki, Leelaram son of Gangaram Bawariya, resident of Kalakota, and Subhash Rajput, resident of Raotawali Tandunga Ki Nangal. They had seen my daughter with these persons on 19.9.2003 at about 9:00 AM. Having this information, her husband and she again started looking for their daughter. But neither the daughter, nor the accused persons could be located. She informed that Sriya @ Sriram and Rama are part of the criminal conspiracy. Radhey Shyam had come and stayed with us four-five days prior to the disappearance of my daughter. The accused persons in pursuance of a criminal conspiracy, have kidnapped her daughter in the night between 18.9.2003 and 19.9.2003. The complainant suspects that the accused persons have either raped her, or sold her somewhere. The complainant and her family members have searched for her everywhere, but they have not been able to locate her. On 14.10.2003 at 3:00 PM the elder son of the complainant, who lives in Salala Ki Dhani, and his uncle Moola, were crossing Kalakota Ki Dhani, when the accused Sriya, Rama and the younger brother of Sriya, Sumer met them. They threatened the son and his uncle, and told them to stop searching for the girl otherwise they will kill them. Sumer ran after them with a gun. The complainant had tried to lodge a report with regard to this incident on 15.10.2003, but it was not registered by the police. The complainant was told to meet the Dy. S.P. Sahib. Therefore, on 15.10.2003 she went and meet the Dy. S.P. Sahib. Again on 16.10.2003 she met him. But even then, the report was not registered. Subsequently, the complainant sent a complaint through registered AD to the S.P. Sikar. But even then, a report was not registered. Since the police has not registered a report, this criminal complaint is being filed before the court."

The said criminal complaint was sent for further investigation to the police under Section 156(3) CrPC. On the basis of the said complaint, a formal FIR (Ex. P.23), namely FIR No. 361/2003, was registered at Police Station Neem-Ka-Thana, District Sikar, for offences under Sections 147, 363, 366, 376 and 120B IPC, and for offence under Section 3 of the SC/ST (Prevention of Atrocities) Act. The police began its investigation. During the course of the investigation, not only the police statement under Section 161 CrPC, but also the statement under Section 164 CrPC of the victim, were recorded. After completing the investigation, except against Pokhar and Ramdev, the police submitted its charge-sheet against the remaining accused persons for offences under Sections 147, 363, 366, 376 and 120B IPC, and for offence under Section 3(1)(12) of the SC/ST Act. The charge-sheet was submitted before the Addl. Chief Judl. Magistrate, Neem-Ka-Thana. As far as the accused Pokhar and Ramdev are concerned, the police had filed an application under Section 169 CrPC. However, by order dated 17.3.2004 the application filed by the prosecution was rejected by the court. The case was committed to the court of Special Judge, SC/ST (Prevention of Atrocities Cases), Sikar.

Against the accused persons, Subhash, Ramdev and Pokhar the learned Judge framed the charges of offences under Sections 147, 363, 366, 376 in the alternative 376(2)(g) IPC, and for offence under Section 3(2)(v) of the SC/ST Act. Against Ramli, Sriram and Smt. Santosh, the learned Judge framed charges for offences under Sections 147, 363, 366 and 376(2)(g) IPC. Against the accused Leelaram and Sumer, the learned Judge framed the charges for offences under Sections 147, 363, 366, 376 and in the alternate under Section 376(2)(g) IPC. During trial Subhash, Leelaram and Sumer absconded. Therefore, by two different orders, dated 24.4.2006 and 15.11.2006, these accused were declared as absconders. The trial continued against the other accused persons. During the trial Smt. Santosh expired. Therefore, the trial abated qua her.

In order to establish its case, the prosecution examined twenty-two witnesses, and submitted thirty-two documents. The defence did not examine any witness, but did submit five documents. After completing the trial, by judgment dated 5.7.2008 the learned Judge has acquitted Sriram @ Sriya and Smt. Rama of the charges framed against them, but has convicted and sentenced Pokhar and Ramdev as mentioned above. Hence, these two appeals before this court.

Before this court deals with the contentions raised by the learned counsel for the appellants, Mr. A.K. Gupta, by the learned Public Prosecutor, Mr. Aladeen Khan, and by Mr. Ajay Gupta, the learned counsel for the complainant, it would be fruitful to first mention the evidence produced by the prosecution.

The victim (P.W.5) is naturally the star witness of the prosecution. Since the victim was a child witness, aged 15 years, she was asked a question in order to gauge her maturity, and her ability to answer the questions truthfully. In her examination-in-chief she informs the court that "the incident had happened about an year and five months back. It was about 10:00 to 11:00 o''clock at night. My mother and father left with Sriya and Ramli for doing the work of firwali (the work for protecting the crop from animals). Subhash, Leelya and Sumer came. First Santosh and Sumer came and told me that my parents are calling me. Radhey Shyam, Pokhar, Ramdev, Leelya and Subhash came. They closed my eyes, and my mouth, and tied my hands. They carried me away. Near Jhiniya Wali Baodi they met Hanuman, Kesri and Jagdish. These three persons asked the accused persons, where they were going together today? They told them that we are going together today to this place itself. When we went further, we met Sriya and Rama. Sriya had a gun with him, and Ramli was armed with a lathi. These people had taken me away for the purpose of selling me off. They took me to Kalakota. There, but for Sriya, everyone committed rape upon me. After this, they took me to Copper Singhana for selling me off. They showed me to Santoshi and sold me off. The money was divided amongst Ramdev, Pokhar, Radhey Shyam, Leelya and Sumer. People kept on looking for me for one month. Then my mother filed a case. The police came and recovered me. My mother had filed the case in Neem-Ka-Thana. The police recovered me from Copper Singhana, the place where I was sold. When the police brought me, Ramdev, Pokhar and Radhey Shyam were with the police. Due to the rape, I have given birth to a girl. I am not married. I am still unmarried. The Deputy Sahib who recovered me, read some documents and asked me to put my thumb impression upon them. Then the witness said that she was not asked to put her thumb impression on the documents. My statement was recorded by the Magistrate Sahib. My thumb impression was taken there. I was also examined by the doctor. A note has been appended by the learned Trial Judge which reads as under:-

"The witness has looked at all the accused and said that all the accused except Radhey Shyam are present in the court."

In the cross-examination she states "if my mother had submitted a criminal complaint before the Neem-Ka-Thana court, I do not know about it. It is correct to say that after I was recovered, I have not said any of the things that I have told to the court today. The police did not record my statement. It is wrong to say that the police recorded my statement, instead my statement was recorded by the court. On 12.11.2003 the Deputy Sahib did not record my statement. I do not remember my date of birth. We are eight brothers and sisters. I do not remember the date of birth of any of them. It is true that because of the bad acts done by these people, the State Government has given my mother Rs. 50,000/-".

Subsequently, this witness was confronted with her statement given under Section 161 CrPC (Ex. D.2). She has practically denied everything recorded in Ex. D.2. Thus, the witness has disowned the entire statement (Ex. D.2). Later in her cross-examination she claims that "she did not give the statement Ex. D.2 to the police". She also admits that "the statement given by her under Section 164 CrPC, she did not give any of the information to her mother, or to her father, either before or after recording of the statement". However, subsequently in her cross-examination she also disowns her statement under Section 164 CrPC, when she was confronted with the said statement. She further admits that "she cannot tell the day of the week, date of the incident when she was raped". She further admits that "when the accused persons met Hanuman, Kesri and Jagdish, on the way, she could not shout as her hands and mouth were tied". She further admits that "at Copper Singhana, there were lots of people at the bus stand when the accused and she were walking passed the bus stand". She further admits that "although there were jeep drivers and bus drivers, but she did not utter a word there. She did not receive any injury on her body. Even the clothes were not torned". She claims that "she had shouted but no one came to her rescue. She further claims that from where they took her to Kalakota she cannot tell".

Bimla (P.W.4), the mother of the victim, informs the court in her examination-in-chief that "the victim was 14 years old at the time of the incident". She claims that "after looking for the child for ten to eleven days, they went near Chandoli where they met Jaggaram, Kajod and Kesri. It is they who told her that they had seen her daughter with Ramdev, Pokhar, Radhey Shyam, Santoshi, Sumer, Subhash and Leelya". She further claims that "she had tried to report with the police, but the police has refused to register a FIR. Therefore, she filed a criminal complaint before the court (Ex. P.1). Her daughter was recovered two months after the filing of the complaint. Due to the rape, her daughter had a girl". In her cross-examination she admits that "even after her daughter was recovered, the victim did not tell them anything. The daughter was recovered fifteen days after the filing of the criminal complaint". She claims that "Ramdeva and Radhey Shyam had produced her daughter before the Police Station". She further claims that "the victim was recovered from Copper". She admits that "the government had given her Rs. 50,000/-". She also admits that "after her daughter was recovered, she did not tell them anything". She also admits that "since she is illiterate she does not know as to what has been recorded by the police under Section 161 CrPC in her statement (Ex. P.1)". She also admitted that "the next day when they came home, the children in the family did not know as to who has taken her daughter away". She also admitted that "even after they were informed by Jaggaram, Kesri and Hanuman that their daughter was in the company of the accused persons, even then, they did not file a police report for ten to eleven days". She admitted that "she has given the ages of her children by guessing their age". She denied the fact that "the victim is 19 or 20 years old". She denied the fact that "she purposefully gave the age as 14 to 15 years".

A similar statement has also been given by Misrilal (P.W.11), father of the victim. Therefore, it is not being reproduced in this judgment.

Kesri (P.W.1), Hanuman (P.W.2), Jaggaram (P.W.18), the three persons who allegedly told the complainant that they had seen her daughter with the accused persons, have turned hostile during the trial and have not supported the case of the prosecution.

According to Dr. Kranti Kumari (P.W.22), she had examined the victim both for rape as well as for her age. According to this witness the victim was between the ages of 15 to 17 years when she was examined by her. She also claims that the victim was eight months pregnant as her pregnancy test was positive. She has proven the age and rape, the medical examination memo (Ex. P.33). In her cross-examination she has admitted that "there is a possibility of two to three years of difference of age as given by the doctors after looking at the radiologist''s report". According to this witness, "the victim could be 19 years old".

Although Chauth Mal (P.W.19) claims that he had taken two packets to the F.S.L., but the prosecution did not submit any F.S.L. report before the Trial Court.

Kanhaiya Lal (P.W.20) claims that "he was Addl. S.P., Sikar in January 2004". He claims that "Pokhar was arrested on 2.1.2004 by arrest memo Ex. P.16". He admits that "in her statement given under Section 161 CrPC, the victim did not mention Pokhar and Ramdev as accused". He also admits that "he was directed to file an application under Section 169 CrPC for Pokhar and Ramdev as there was no evidence against them". Even the other investigating officer, Yadram Fasal (P.W.21) admits in his cross-examination that "in her 161 statement the victim did not name Ramdev and Pokhar as an accused". He also admits that "the police did not recover any incriminating evidence from any of the accused during the investigation".

Mr. A.K. Gupta, the learned counsel for the appellants had raised the following arguments before this court: firstly, the story narrated by the victim is an unbelievable one. According to her, she was tied up and taken away from her house; she was still tied up when she met Jaggaram, Kesri and Hanuman, therefore, she could not raise any hue and cry.

Secondly, despite the fact that she had travelled with the accused persons, inspite of the fact that at Kalakota there were bus drivers and jeep drivers, she never raised any hue and cry. Even, after she was recovered and handed over safely to her parents, she did not speak about the entire incident to them. She was recovered after one year and two months, yet she did not reveal the alleged ordeal she went through to her own parents. Most importantly, in the statement given by her under Section 161 CrPC (Ex. D.2) she did not mention the names of Pokhar and Ramdev, the appellants before this court. For the first time she has mentioned their names in the statement given by her under Section 164 CrPC (Ex. D.3) before the Magistrate. However, she has disowned both the statements before the learned Trial Court. According to her, she has never made these statements either to the police, or to the Magistrate. Surprisingly, even the Magistrate has not been produced by the prosecution in order to prove the statement given by her under Section 164 CrPC (Ex. D.3). Therefore, she is an unreliable witness.

Thirdly, although Bimla (P.W.4) has claimed that the victim is 15 years old, but in her cross-examination she has clearly admitted that she informed about the age of her child by approximation. According to Dr. Kranti Kumari (P.W.22), the victim''s age is between 15 to 17 years, but it could be two years on either the sides. Thus, the victim is 19 years old.

Lastly, there is no evidence to prove the offences under Section 376 (2)(g) and under Section 366 IPC. As far as the offence under Section 3(2)(v) of the SC/ST Act is concerned, there is nothing to show that the offence against the victim was committed only because she belonged to Scheduled Caste/Scheduled Tribe. Hence, relying upon the judgments of Masumsha Hasanasha Musalman Vs. State of Maharashtra, AIR 2000 SC 1876 : (2000) 2 JT 367 : (2000) 2 SCALE 70 : (2000) 3 SCC 557 : (2000) 1 SCR 1155 : (2000) 1 UJ 554 : (2000) AIRSCW 719 : (2000) 1 Supreme 584 and Ramdas and Others Vs. State of Maharashtra, AIR 2007 SC 155 : (2006) 11 SCALE 340 : (2007) 2 SCC 170 the learned counsel has pleaded that the offence under Section 3(2)(v) of the SC/ST Act is not made out against the appellants.

On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, and Mr. Ajay Gupta, the learned counsel for the complainant, have strenuously argued that the victim should be believed as there is no reason for her to falsely implicate the accused persons. According to Bimla (P.W.4), the family had searched for the victim, but could not locate her. It is only Leelaram, the person to whom the victim was sent in nata, who brought her to the police. Since the victim claims that she was kidnapped and raped, the learned Judge was justified in convicting the appellants and sentencing them for the charges framed against them.

Heard the learned counsel and perused the impugned judgment.

Earlier, considered to be an a better or an accomplice in crime, initially, the courts sought corroboration of the testimony of the victim. However, through a series of judgments decided by the Hon''ble Supreme Court, the victim is no longer seen as an abetter of crime. Now, she is viewed as a victim of the crime. Since she is a victim of the crime - a crime which leaves her physically battered, psychologically shattered and mentally disturbed - generally her testimony is accepted as the gospel truth. However, with the rise in cases of rape with the changing scenario in the society, where various relationships and dubious deeds are being given the colour of rape, the Courts have become more cautious in accepting the testimony of the victim as the unblemished truth. Since in many cases, the victim may be the sole witness, and is certainly the star witness for the prosecution. The Court requires certain corroboration, if the victim is not a trustworthy witness. Corroboration is sought as a rule of prudence, and not as a rule of law. Since the victim may be the sole witness on whose testimony the conviction would depend, law requires her to be a witness of sterling worth. Therefore, it is imperative that her testimony should be tested on the touchstone of her conduct. For, many a times, action speaks louder than words. Therefore, her conduct may reveal the hidden truths camouflaged by the victim in her testimony.

In the present case the police had recorded the victim''s statement under Section 161 CrPC, but in the said statement she did not name either Ramdev or Pokhar. During her testimony when she is confronted with the said statement, she disowns the statement lock, stock, and barrel. According to her, the said statement was never recorded by the police. For the first time she mentioned the names of Ramdev and Pokhar in her statement under Section 164 CrPC before the Magistrate. But again, during her cross-examination she also disowns this said statement. Thus, she resiles from the statement given by her, on oath, before a Magistrate.

In her testimony she would have the court believe that she was gang raped by number of persons, she was forced to enter the flesh trade, and forced to have sex with various persons, yet her testimony is devoid of any details. Even while describing the alleged gang rape she merely makes a bald statement that the accused persons have raped her. It is, indeed, curious that she does not give any details of the alleged crime. Most importantly, even after she was rescued by the police, even after she is handed over to her parents, even after she is in their safe custody, according to Bimla (P.W.4), her mother, the victim never revealed anything about the horrifying experience she may have had for the last one year. It is rather surprising that the victim, as a daughter, would not share any of her ordeal with her own mother. Even in her own testimony the victim admits that "she did not reveal anything to her mother either before, or after recording of her statement under Section 164 CrPC". She has further admitted that "it is correct to say that after I was recovered, I have not said any of the things that I have told to the court today". Her silence with her own family members raises doubts about the veracity of her testimony.

Moreover, in her cross-examination she clearly admits that while she was taken to Copper Singhana at the bus stand, there were lots of people yet even there she has not raised any hue and cry. Furthermore, despite the fact that she was allegedly kept as a captive over a long period of time, she did not attempt to break through her captivity. In her testimony she nowhere says that she was threatened or bound and kept. In fact she had lived with Leelaram and had become pregnant. A suggestion has been made that a dispute had erupted between the parents of the victim and Leelaram over the money to be paid by Leelaram to her family. Therefore, a grave possibility does exist that the entire case has been falsely fabricated by the parents for embroiling Leelaram in a criminal case. Despite the fact that the victim is the star witness and the sole witness of her abduction and of her alleged rape, but this court does not find her as a witness of sterling worth.

In the case of Krishan Kumar Malik Vs. State of Haryana, AIR 2011 SC 2877 : (2011) 7 JT 94 : (2011) 3 RCR(Criminal) 589 : (2011) 6 SCALE 759 : (2011) 7 SCC 130 : (2011) 3 SCC(Cri) 61 : (2011) 8 SCR 774 : (2011) 7 SCR 722 : (2011) AIRSCW 4614 : (2011) AIRSCW 4118 the Hon''ble Supreme Court dealt with a case where the victim did not mention the name of the accused persons, although she was aware of there names and their identity. Moreover, she kept on changing her stand with regard to the number of persons who had actually committed rape upon her. Even in that case, the victim had travelled with her abductors and rapists and even then she had not raised any hue and cry. The victim was also taken to the place where she was allegedly raped, yet she could not point out the place. Therefore, looking at her conduct, the Hon''ble Supreme Court did not find the victim as a trustworthy witness and acquitted the accused.

Even in the present case the victim has changed her version from her statement given under Section 161 CrPC, to her stand taken under Section 164 CrPC to the stand taken by her before the learned Trial Court. A vacillating and double-speak witness is an unreliable one. Therefore, it would not be safe to convict the appellants on the testimony of an untrustworthy witness.

As far as the age of the victim is concerned, Bimla (P.W.4), here mother, admits in her cross-examination that "she has given the ages of her children by approximation". Even the victim does not remember her date of birth. According to Dr. Kranti Kumari (P.W.22), looking at the radiological result of the victim, she should be between the ages of 15 to 17 years. Moreover, according to the doctor the age could fluctuate to two years on either sides. It is, indeed, trite to state that if there are two interpretations of a given evidence, the one in favour of the accused should be accepted. Therefore, the victim should be taken to be 19 years old. This inference is further buttressed by the statement of the doctor, Dr. Kranti Kumari (P.W.22) herself who has admitted in her cross-examination that the victim could be 19 years old.

Since victim is not minor, the issue of consent would have to be considered. But considering the fact that the victim has lived away from home, lived with Leelaram, was pregnant at the time of recovery, it seems to be a case of consent. Moreover, had it been a case of pregnancy due to rape, the normal course of conduct for the victim would have been to abort the child. Yet she has chosen to deliver the child. Therefore, this also reinforces the inference that it is a case of consent of living with Leelaram. As stated above, this court does not find the allegation of a gang rape against the appellants, as true.

For the reasons stated above, the appeals are, hereby, allowed. The appellants are acquitted of the charges framed against them. Since appellant, Pokar is languishing in jail, he shall be set at liberty forthwith, if not wanted in any other case. Appellant, Ramdev is on bail. His bail bonds stand discharged.

Keeping, however, in view the provisions of Section 437-A Cr.P.C., the appellants, namely Pokhar and Ramdev are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and a surety bond in the like amount, before the trial court. The bond so furnished shall be effective for a period of six months. The bond shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment, or on grant of the leave, the appellants, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.