Raju vs State of U.P.

Ranjana Pandya, J.—1. Challenge in this appeal is to the judgment and order dated 10.09.2015 passed by the learned Additional Sessions Judge/Fast Track Court, Varanasi in Sessions Trial No. 309 of 2010 (State v. Raju alias Kallu Rajbhar) arising out of Case Crime No. 101 of 2010, under sections 363, 366, 376, 506 IPC, Police Station Cantt., District Varanasi, whereby the accused appellant Raju alias Kallu Rajbhar has been convicted and sentenced to five years'' rigorous imprisonment and a fine of Rs. 10,000/- under section 366 IPC; ten years'' rigorous imprisonment and a fine of Rs. 20,000/- under section 376 IPC and one year''s rigorous imprisonment under section 506 IPC with default stipulation. Out of the fine so deposited by the accused, half of the same was directed to be paid to the victim. The accused appellant has been acquitted for the offence under Section 363 I.P.C.

In short compass the case of the prosecution as unfolded by the prosecution is that the informant Ram Samujh, son of late Kedar Nath Patel, resident of Mauja Lamhi, Police Station Cantt., District Varanasi handed over a written report at the Police Station Cantt., District Varanasi, Ext. Ka-1 to the effect that at a distance of about 100 meters, office of Shiv Shankar Singh alias Bachcha Singh, resident of Majhmitiya is situated, who deal with the business of plotting. In the office of Bachcha Singh, Raju alias Kallu Rajbhar, son of Dev Narayan and Dharam Patel, resident of Rajnahiya come daily and do the business of carrying soil. Bachcha Singh had an evil eye on his house and plot. All the aforesaid three persons made a conspiracy and at about 12.00 in the noon on 16.02.2010, enticed away his minor daughter aged 13 years and for two days, Raju alias Kallu Rajbhar kept on raping her daughter and threatened her to kill, if she cries out. When he made a search of his daughter, then Bachcha Singh and Dharam Patel told him that we will got your daughter dropped to the house. On 18.02.2010, all the aforesaid three persons left his daughter beneath the tree near his house. In the morning, he met his daughter, who narrated the entire incident. Due to fear and defamation in the society, he did not report the matter earlier. On the basis of the aforesaid report, a chik FIR was lodged on 26.02.2010 at 5.00 P.M. at case crime No. 101 of 2010, under sections 363, 366A, 376, 506 IPC, Ext. Ka-4, which was entered in the G.D., Ext. Ka-9.

After the registration of the case, the investigation of the case was entrusted to PW-4 S.I., Lambodar Prasad Gautam. He deposed that the case was lodged in his presence. On the same day, he started the investigation and recorded the statement of the victim in the case diary and sent the victim for medical examination through lady Homeguard Parwati Devi, lady Constable Mama Vishwakarma and Constable Ravindra Sharma. On 27.02.2012, this witness went to the house of the victim and recorded the statements of Raj Kumari Devi, the wife of the informant and Dharmendra Kumar, son of the informant and inspected the spot. On the pointing out of the victim, he prepared the site plan, which was proved as Ext. Ka-4. After completing the investigation, this witness submitted the charge sheet on 25.03.2010 against the accused, Ext. Ka 5. After the submission of the charge sheet, an application was filed by the informant before the Circle Office, Cantt., Varanasi for re-investigation of the case on 03.05.2010, Ext. Ka 6. On the basis of that order, an application was moved by the Station Officer before the Court concerned for granting permission for re-investigation. Learned court below vide order dated 26.07.2010 passed an order for re-investigation of the case against which a revision was filed and this Court by order dated 30.08.2010 set aside the order of re-investigation.

In support of its case, the prosecution has examined as many as five witnesses. PW-1 is Ram Samujh, the informant of the case. PW-2 is the victim of the case. PW-3 is Dr. Sarita, who examined the victim. PW-4 is S.I., Lambodar Prasad Gautam, the Investigating Officer of the case and PW-5 is Head Constable, Jai Hind Bharti.

PW-1, Ram Samujh is the first informant and father of the victim. He has reiterated his versions given in the FIR.

PW-2 is the victim and daughter of the first informant. She deposed that at the time of occurrence she was aged 14 years. At the time of occurrence, her mother, father and brother were not present. She does not know Raju alias Kallu Rajbhar. This witness has further stated that misdeed was done by Kallu. Kallu is also known with the name of Raju. Kallu is the resident of village Rajnahiya. When Raju took her, she was at her home and was cleaning the utensils. Kallu drives the tractor of Dharam Patel. On the date of occurrence, Kallu came to her house and asked him to clean the office of Bachcha Singh. When she went there, office was closed. Kallu took her to village Rajnahiya on the car of Bachcha Singh. Near the Rajnahiya village in the mango orchard, there was a dig in which mis-deed was done by Kallu. This witness further stated that all the three person threatened her. He committed rape on her in the night. Thereafter, she was kept in a room for two days. At 3.00 A.M., all the three persons have left her beneath the tree near her house. On the date of occurrence, she was wearing pant and shirt. Pant was white, whereas shirt was red. The accused enticed her away. She did not go on her own freewill. She went to the Police Station along with her parents to lodge the report after ten days of the occurrence. After two days, her medical examination was done at Kabir Chaura Hospital.

PW-3 is Dr. Sarita, who deposed that on 26.02.2010, she was posted as Medical Officer, District Women Hospital, Kabir Chaura. On that day, at 6.30 P.M. she has medically examined the victim, who was brought by lady Homeguard Parwati Devi, lady Constable Mama Vishwakarma and Constable Ravindra Sharma. This witness has further stated that vagina of the victim easily admits two fingers. Hymen was torn. Uterus was normal. Slide of vaginal smear was sent for pathological test. Ultrasound was also advised. After receipt of the pathological report and ultrasound report, supplementary report was prepared. According to which, no dead or alive spermatozoa was found in the vaginal smear. Epiphysis bone was fused. As per the report of the doctor, the age of the victim was about 18 years. This witness further opined that no definite opinion about age can be given. She has proved medical report as well as supplementary report Exts. Ka-2 and Ka-3.

PW-5 is Constable Jai Hind Bharti. He deposed that on 26.02.2010, he was posted as Head Muharrir at Police Station Cantt., District Varanasi. On that date, on the basis of the written report of the informant Ram Samujh, he lodged the report at 5.00 P.M. against the accused at case crime No. 101 of 2010, under sections 363, 366A, 376, 506 IPC vide chik report No. 93 of 2010 under his handwriting and signature, which he proved as Ext. Ka.-8. Thereafter, necessary G.D. entries were made by Constable Muharrir, Ram Suman under his handwriting and signature, which he proved as Ext. Ka-9.

The evidence of PW-4, S.I., Lambodar Prasad Gautam has already been discussed above.

After closure of the evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which the accused has denied the occurrence and has stated that he has been falsely implicated in this case. The investigation was not conducted in a fair manner.

After hearing the learned counsel for the parties, the learned lower court has convicted and sentenced the appellant as stated in para-1 of the judgment.

Feeling aggrieved the accused appellant has come up in this appeal.

Heard Shri Sanjay Kumar Singh, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.

Learned counsel for the appellant has submitted that there is delay in lodging the first information report. As per the chik report Exhibit Ka-8, the occurrence took place on 16.02.2010 at 12 O''clock in the day time, whereas the report was lodged on 26.02.2010 at 17:00 hrs. The place of occurrence being 7 Kms. Away from the Police Station, thus, there is delay of more than 10 days in lodging the first information report.

As far as the delay is concerned, in the first information report, it has been mentioned that due to shame and repute of the family, the first information report was not lodged. PW-1 Ram Samujh has stated that when the girl was missing, he got the report typed and filed it at the Police Station. He has stated that in the morning, he saw his daughter lying beneath the tree. As far as the victim is concerned, she has also stated that after raping her, she was left beneath a tree at 3 O''clock and in the morning, she remained beneath the tree till 06:00 A.M., when her family members traced her.

Delay in lodging the first information report in cases under Section 376 I.P.C. would depend upon facts of each case and record has to be had to the trauma suffered by victim coupled with other factors and each case has to be judged separately on its own merits. The father of the victim had seen the victim lying beneath the tree. The victim was left by the accused persons beneath the tree which does not command acceptance because recovery of the victim by her father and family members creates a cloud of suspicion. There is no doubt that on the basis of sole testimony of the prosecutrix, it is unimpeachable and beyond reproach, a conviction can be based. But that testimony should be unshaken.

In the present case, the delay of ten day in lodging the first information report stands unexplained by the prosecution. In Mohd. Ali @ Guddu v. State of Uttar Pradesh, (2015) 3 Supreme Court Cases (Cri) 82, the Hon''ble Apex Court has held that, if the conduct of the family of the abducted victim is unnatural, inspite of the prosecutrix being traced, there is delay of ten days in filing the first information report which is not explained when the first information report was lodged ten days after the incident, there was no reason why the needful could not be done earlier. The reason that the prosecutrix suffered from trauma and constrained of social stigma is un-acceptable as the report has to be lodged by her father or mother. Thus, it gives rise to a sense of doubt and the delay being unexplained, raises a shadow of doubt on the whole prosecution story.

As far as the testimony of the prosecutrix is concerned, the sole, unshaken and reliable testimony of the prosecutrix is sufficient to prove charges of rape against an accused but that does not given that the statement of every prosecutrix has to be taken as gospel truth.

Ram Samujh PW-1 has stated that two days after the occurrence, he found his daughter near the house beneath the tree. He is the witness of fact. Another surprising fact of this case is that, this victim of gang rape keep on sitting beneath a tree just a few paces from her house, she waited there for her family instead of she did not go to her house. The father of the victim in cross-examination has stated that he questioned his daughter why she did not come back home on which the victim told him that she was frightened, hence she did not come back home. This statement of the victim to her father is speaking volume for quite itself because if the victim would have spoken the truth, there was no reason for her to keep lying in a traumatic state beneath the tree. Even the father was not confident enough, whether she did not go to her house out of fear or not. The victim PW-2 has stated that she was raped by Kallu who is also called as Raju. She was cleaning the utensils at her house when Raju took her. A person has to tell 100s of lies to conceal one lie. The same happened with this witness who in cross-examination has stated that she was going by foot when she went with the Kallu. She has stated that Kallu came to her house and asked her to accompany him to the office of Bachcha Singh to broom it. When she reached there, the office was closed. Kallu took her by Bachcha Sing''s car and raped her in a dig in the village. Initially, she has stated that Kallu raped her but in the next breath, she has stated that she was raped by Kallu, Bachcha Singh and Dharam Patel.

In cross-examination, PW-2, the victim has stated that since Kallu @ Raju took her with him, hence she knew him. In the initial statement, she has stated that only Raju came to her house but correcting herself, she has stated that all the three came to her house. Further, she has stated that on the day of incident, for the first time she has seen Raju @ Kallu. She has also stated that all the three were walking in front and she was following them behind. This witness also had to undergo the test of cross-examination, in which she has stated that the accused told her that they would put her after she would broom the office. She was raped for about four times. She has further stated that Kallu was heavier than her, hence, she could not resist him. She raised hue and cry but nobody came.

Contradicting her previous statement that all the trio took her by car, she has stated that Raju took her on the foot to her village. Further, she has stated that she lodged the first information report on the saying of her mother. She has gone to the extent of saying that she stayed in the house of Dharam also and said that after rape she was not kept in the room for two days but on the same night she came back to her house. She has also stated that the first information report was written by the Sub Inspector but she does not know what was written in the first information report. Thus, the prosecution as set forth by the victim is indigestible, unpalatable, untrustworthy and bundles of lies.

The medical evidence also does not support the oral evidence, inasmuch as, Dr. Sarita PW-3 did not find any external or internal injury on the person of the victim. If three persons would have raped the victim in a dig, why she would not sustain injuries on her internal or external parts of the body. Especially when there are no allegations that any of the accused was armed with the weapon. PW-4 S.I. Lambodar Prasad Gautam has stated that the victim and her father had falsely implicated Shiv Shankar Singh @ Bachcha and Dharam Patel because they had enmity of land with Shiv Shankar Singh @ Bachcha against whom charge sheet was not submitted.

Thus, on what has been said and discussed above, I find that this is a case of no evidence and the evidence of the witnesses have major contradictions and the prosecution story is shaky, unreliable, not worthy of credence. Thus, the prosecution has miserably failed to prove the case against the appellants and the appeal is liable to be allowed.

Accordingly the appeal is allowed.

The impugned judgment of conviction and sentence dated order dated 10.09.2015 passed by the learned Additional Sessions Judge/Fast Track Court, Varanasi in Sessions Trial No. 309 of 2010 (State v. Raju alias Kallu Rajbhar) arising out of Case Crime No. 101 of 2010, under sections 363, 366, 376, 506 IPC, Police Station Cantt., District Varanasi is hereby set aside.

The appellant namely Raju @ Kallu Rajbhar is in jail. He shall be released forthwith. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.

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