Rakesh Kumar Gupta vs State of U.P.

Surendra Vikram Singh Rathore, J.—The instant criminal appeal has been preferred against the judgment and order dated 27.1.2012 passed by learned Additional Sessions Judge, Court No. 5 Raebareli in Sessions Trial No. 492 of 2009 arising out of case crime no. 105 of 2007, Police Station Deeh, District Raebareli, whereby appellant Rakesh Kumar Gupta was convicted for the offence under Sections 376 and 506 I.P.C. For the offence u/s 376 I.P.C. He was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 2,000/- with default stipulation of six months additional rigorous imprisonment. For of the offence u/s 506 I.P.C., he was sentenced to undergo six months rigorous imprisonment.

In brief, the facts giving rise to the instant criminal appeal may be summarized as under:

On 14.3.2007, complainant Smt. Ramau wife of late Chhote Lal lodged an F.I.R. at police station Salwan at 16:30 hours stating therein that her minor daughter aged about 13 years (hereinafter referred to as the victim) had gone to attend the call of nature about four months ago at 7:00 p.m. in the field of Bulla Gurjar. At that time, appellant Rakesh Kumar Gupta committed rape with her. The victim, because of the reputation of her family in the society, did not disclose this incident to anybody. She became pregnant by this act of the appellant, when her pregnancy was noticed, then she narrated the story to her mother. The F.I.R. was scribed by Anil Kumar Ojha and was filed at the police station. Thereafter the case was registered. The victim was referred for medical examination. In her medical examination, no mark of injury on abdomen or any private part of the body was found. There was no bleeding or tearing. Ultrasound of lower abdomen was advised to verify the pregnancy. She was referred for x-ray for determination of her age. After the aforesaid tests, the pregnancy of the victim was reported to be 25 weeks and two days old. This supplementary report was prepared on 22.3.2007. Ultrasound report was dated 17.3.2007 i.e. only after three days of filing of the F.I.R. No definite opinion regarding rape was given and radio-logical age of the victim was reported to be 15 years. Statement of the victim u/s 164 Cr.P.C. was recorded on 17.5.2007. In her statement she has stated that on the date of occurrence in the noon she was sitting in a field then Ritesh reached there and committed rape with her, and also threatened her that in case she disclosed this incident to anyone, then she shall be killed. After completing the investigation, charge sheet was filed.

The case of the defence was that he has been falsely implicated in this case. The victim was major and married. Even if any offence was committed then it was committed with her consent and she had attained the age of giving consent. He claimed himself to be innocent.

In order to prove its case, the prosecution has examined, PW-1 complainant Smt. Ramau, PW-2 victim, PW-3 Dr. Syed Altaf Hussain, Radiologist who has prepared the ultrasound report of the victim. PW-4 Dr. Nirmala Sahu, who had medically examined the victim. PW-5 Dr. S.R. Singh, who had prepared x-ray report of the victim. PW-6 S.I. Jai Narayan Shukla, who has investigated the matter, this witness has also proved chik report and G.D. of the registration of the case as secondary evidence.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, the trial court convicted the appellant as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant is that F.I.R. of this case was lodged after a considerable delay while the victim in her statement during trial has stated that she has narrated the story to her mother on the same day. It has further been stated that time of the alleged incident is not supported by the ultrasound report. It has further been submitted that as per F.I.R. the incident has taken place in the evening at about 7:00 p.m. while in the statement recorded u/s 164 Cr.P.C., the victim has stated that said incident had taken place in the noon.

Learned A.G.A. has submitted that the points which have been raised before this Court were also raised before the trial court and the trial court, by a reasoned judgment, has rejected the same.

The first point to be considered is the delay in lodging the F.I.R. F.I.R. in every criminal case is a very important and vital document though it is not a substantive piece of evidence but definitely it is of great importance as the entire prosecution case rests on it. A prompt F.I.R. lends credence to the prosecution story because in such cases chances of improvement or consultation stands excluded. The law is settled on the point that mere delay in the F.I.R. cannot be a ground, by itself, to throw away the entire prosecution case. Since it is a case of rape, therefore, a different approach in such cases has to be adopted.

Hon''ble Apex Court in the case of State of Himachal Pradesh Vs. Prem Singh, has considered this aspect and has held in para 6 as under:-

So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In that score, learned counsel for the appellant is right that the High Court has lost sight of this vital distinction.

In another case of Sri Narayan Saha and Another Vs. State of Tripura, The Hon''ble Apex Court in para 8 has held as under:-

In India if the prosecutrix happened to be a married person, she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly, does not raise the question that the complaint was false. The reluctance to go to the police is because of society''s attitude towards such women. It casts doubt and shame upon her rather than comfort and sympathy. Therefore, the delay in lodging complaint in such cases does not necessarily indicate that her version is false.

PW-1 complainant Smt. Ramau in her evidence before the court has supported the prosecution story and has stated that the victim had gone to ease herself in the evening where rape was committed with her. This incident has taken place about four months ago prior to the lodging of the F.I.R. On the point, as to when she got the information of this incident, she has stated as under:-

So far as the incident is concerned there is sole evidence of the victim. Law is settled on the point that if the evidence of victim of offence of rape is found to be wholly reliable, the same can be made basis for conviction.

As to what value should be attached to the evidence of a victim of rape, has been considered by Hon''ble Apex Court in the case of State of Rajasthan Vs. Babu Meena, wherein Hon''ble Apex Court has observed in para 9 as under:-

We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and, (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.

Hon''ble the Apex Court in a recent judgment in the case of Hem Raj Vs. State of Haryana, has again considered this aspect and has observed in paragraph no. 6 as under:-

In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. State of Maharashtra Vs. Chandraprakash Kewalchand Jain, Such weight is given to the prosecutrix''s evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix''s evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it.

The victim on this point has stated that she had gone to the field of Bulla in the evening where the appellant committed rape with her. She came back to her house and narrated the entire story to her mother. F.I.R. was lodged by her mother at the police station. She has also proved the statement given u/s 164 Cr.P.C. wherein the name of the person who committed rape with her, was mentioned as Ritesh and not Rakesh and time of occurrence was stated to be in the noon.

In her cross examination, she has stated that at the time of incident, it was dark and on the date of occurrence, she had narrated the whole incident to her mother but on that day they did not go to lodge the F.I.R. On an adjourned date of cross examination, this witness turned hostile and has stated her age to be 19 years and has also stated that the appellant has not committed rape with her nor she became pregnant. The incident took place in the dark. Because of the pressure of her mother and the police, she had given the statement before the court that Rakesh has committed rape with her. She never told this incident to her mother and her mother got the F.I.R. Lodged out of her own freewill. She had disclosed the name of the person who has committed rape with her as Ritesh and not Rakesh, in her statement recorded u/s 164 Cr.P.C. This witness was declared hostile and she was cross examined by the public prosecutor. In her cross examination, she has denied to have given any statement to the Investigating Officer and she has also stated that earlier statement was given by her under pressure of the villagers. Therefore, the victim herself is giving different version. She has denied the fact that because of any compromise, she is hiding the true fact but has stated that her earlier statement was given by her under pressure.

Apart from it, the trial court has failed to notice some very important aspects of the matter. As per version of the F.I.R., the incident has taken place in the evening at about 7:00 p.m. and there is no allegation in the F.I.R. that the victim was threatened by the person, who had committed rape with her. In the statement recorded u/s 164 Cr.P.C., which was recorded after about two months of the lodging of the F.I.R., the time of the incident was disclosed to be in the noon. Apart from it, in the ultrasound report, which was conducted after only three days of the lodging of the F.I.R., the pregnancy was 25 weeks and two days old meaning thereby at that time, she was having pregnancy of more than six months. So the allegation of the prosecution that incident had taken place about four months prior to the lodging of the F.I.R. becomes unsustainable because she was having a pregnancy of six months. She has stated in her cross examination that she has married twice and when she became pregnant at that time she was married. But this aspect of the matter was not taken into consideration by the trial court, which rendered its judgment unsustainable under law.

In view of the discussion made above, the instant appeal deserves to be allowed and is hereby allowed. The judgment and order dated 27.1.2012 passed by learned Additional Sessions Judge, Court No. 5 Raebareli in Sessions Trial No. 492 of 2009 is hereby set aside. The appellant is hereby acquitted of the charges levelled against him. He be set at liberty. The appellant is on bail. His bail is cancelled and sureties discharged. Amount of fine, if deposited, shall be refunded to the appellant.

Office is hereby directed to communicate this order to the court concerned and to send back the lower court record.