Ram Kumar and Others vs State of U.P.

Ranjana Pandya, J.—1. Challenge in this appeal is to the judgment and order dated 11.03.2010 passed by the learned Additional Sessions Judge, Court No. 8, Shahjahanpur in Sessions Trial No. 692 of 1995 (State v. Ram Kumar and another) arising out of Case Crime No. 86 of 1995, under sections 452, 376, 323, 506 I.P.C., Police Station Nigohi, District Shahjahanpur, whereby the appellants Ram Kumar and Santosh have been convicted and sentenced to twelve years'' rigorous imprisonment and a fine of Rs. 10,000/- under section 376 IPC; two years'' rigorous imprisonment and a fine of Rs. 2000/- under section 456 IPC and six months'' rigorous imprisonment and a fine of Rs. 1000/- under section 323 IPC with default stipulation.

In short compass the case of the prosecution as unfolded by the prosecution is that an application was given by victim, wife of Subedar to the Superintendent of Police, Shahjahanpur to the effect that the applicant is the resident of village Chak Safora, Police Station Nigohi, District Shahjahanpur and is aged about 30 years. She is married and having children. On 15.06.1995 at about 8.00 P.M., she was alone along with her children, at that time Ram Kumar and Santosh, resident of the same village entered her house armed with gun (pauniya) and country made pistol. They dragged the victim to the room and after putting the country made pistol on her abdomen, both of them committed rape on her one by one. At that time husband of the victim came, who was beaten by Santosh by gun as a result thereof he received injury on her finger and other parts of the body. After committing the rape they have also threatened to kill. The witnesses Daya Ram, son of Nanhey and the daughter of the victim Santa have seen the accused doing misdeed, beating and running away. On 16.06.1995, when she went to Police Station, her report was lodged only for Marpeet. The report for doing misdeed with the applicant was not written. In the application, the applicant has also prayed that her report may be lodged at Police Station Sadar Bazar and her medical examination may also be got conducted. On the basis of the written report, Ext. Ka-1, a case was registered against the accused Ram Kumar and Santosh at case crime No. 86 of 1995, under sections 452, 376 and 323 IPC at Police Station Sadar Bazar, District, Shahjahanpur. Chik FIR, Ext. Ka-6 was lodged by Constable Clerk Shiv Prasad Pal and the case was entered in the G.D., Ext Ka-4. After the registration of the case, the investigation of the case was entrusted to S.I. Shri Harish, who inspected the spot and prepared the site plan, Ext Ka-7. After recording the statements of the witnesses and completing investigation, the investigating officer submitted the charge sheet against the accused under sections 452, 376, 323 and 506 IPC, Ext. Ka. 8.

In support of its case the prosecution has examined as many as six witnesses. PW-1 is the victim of the case. PW-2 is Santa, the daughter of the victim. PW-3 is Subedar, the husband of the victim. PW-4 is Dr. Yogesh Kaul, who has examined the injured. PW-5 is Head Constable 63, CP, Shannumal. PW-6 is Dr. Rita Singh, who medically examined the victim.

PW-1 is the victim of the case. She has deposed that she knows and recognizes the accused Ram Kumar and Santosh very well. Both of them reside in her village and are friend. On the date of occurrence at about 8.00 P.M., she was alone in the house. Her daughter Santa and two small children were with her. Santosh and Ram Kumar entered her house. Ram Kumar was armed with country made pistol and Santosh was carrying gun. They dragged her to the room and committed rape on her one by one. At that time her husband arrived there, who was also beaten by the butt of the gun due to which finger of her husband got fractured. Santosh hit her from the butt of the gun as a result of which she has received injuries on both thighs and on abdomen. Thereafter, the accused ran towards the north. This witness along with her husband Subedar and Daya Ram went to the Police Station Nigohi, but her report was not lodged. Thereafter, she made an application to the Superintendent of Police, Shahjahanpur, who ordered for registration of the case. This witness has further stated that the report which she has given to the Police Station, Sadar Bazar is on record as Ext. Ka-1. From the Police Station Sadar Bazar she was sent for medical examination to District Hospital, Shahjahanpur along with a lady constable and her husband was sent for medical examination along with a constable. Her statement was recorded by the sub-Inspector.

PW-2 is Smt. Santa, the daughter of the victim. She deposed that the victim is her mother and Subedar is her father. At the time of occurrence, she was unmarried. She got married about two years back from the date of recording her statement. Accused Ram Kumar and Santosh reside in the village of my mother. Their houses are adjacent to the house of my father''s house. Both the accused are of criminal nature. The occurrence took place at 8.00 P.M. My mother was sitting. Both the brothers were sleeping. My other three sisters were sleeping. Accused entered her house from north door. Accused Santosh was armed with gun (pauniya) and Raj Kumar was armed with country made pistol. After entering her house, the accused put off the Dibri. Ram Kumar dragged her mother to the room. She was crying. Ram Kumar has done misdeed with her mother. My mother was crying. Thereafter, Santosh also done misdeed with her mother. Ram Kumar caught hold of her. When Santosh was inside the room, her father has arrived. Santosh was doing misdeed with her mother. Accused Ram Kumar and Santosh have beaten her father on crying. They also beaten her mother. After beating, the accused persons, ran away. Due to beating, finger of her father got fractured. Her mother and father have gone to lodge the report in the morning.

PW-3, is Subedar, the husband of the victim. He deposed that he knows both the accused Ram Kumar and Santosh, both of them reside in his village. They are not friend. On the day of occurrence, he was at his field. His wife Ramwati, daughter Santa and two small children were at home. Ram Kumar and Santosh entered his house. Santosh was having gun. He does not know as to what weapon accused Ram Kumar was carrying. When he came home, accused Santosh was standing near Santa. When they fled away, her wife told him that both Ram Kumar and Santosh have committed rape on her, one by one. This witness has further stated that on account of beating by the accused, he received injuries and his finger got fractured. Thereafter, this witness has gone to the Police Station, Nigohi along with his wife and brother, where his report was wrongly lodged. Thereafter, he gave an application to the Superintendent of Police, Shahjahanpur, thereafter on his order, the report was lodged. After the registration of the case, he was taken by a Homeguard for his medical examination. His wife was also taken by a lady constable for medical examination, where medical examination of this witness and his wife was conducted. However, no x-ray was done.

PW-4 Dr. Yogesh Kaul has deposed that on 16.6.1995, he was posted at Emergency Medical Officer, District Hospital, Shahjahanpur. On that date at 9.00 P.M., he has medically examined Subedar, son of Nanhey Lal, who received the following injuries:

".Laceration on the left index finger 1 cm x 1 cm bone deep in which clotting was present. Nail has been cut off.

Abrasion linear 10 cm x 0.1 cm on back of left arm present vertically, hard brown scab started forming."

In the opinion of the doctor, the injuries were one day old. Injury No. 1 was caused by hard and blunt object and injury No. 2 was caused by some pointed article. Injury No. 2 was simple in nature and injury No. 1 was kept under observation and x-ray was advised, Ext. Ka 2.

On the same day, this witness has also examined the victim, who received the following injuries:

"1. Complain of pain on the right side of neck, but no visible injury is seen.

Complain of pain on the front abdomen, but no injury is visible."

In the opinion of the doctor, no visible injury is seen on the body of the victim, Ext. Ka-3.

PW-5 is Head Constable 63 CP Shannumal. He deposed that on 17.06.1995, he was posted at Police Station, Nigohi as Head Muharrir. On that date, he received a letter along with FIR No. 39 of 1995, case crime No. Nil of 1995, under section 452, 376, 323 IPC, original FIR, application for registration of the case, G.D., medical report of the victim, on the basis of which F.I.R. at case crime No. 86 of 1995 was registered, which he proved as Ext. Ka-4.

PW-6 is Dr. Rita Singh, who deposed that she was posted as Medical Officer at District Women Hospital, Shahjahanpur on 16.06.1995. On that day, at 9.00 P.M., she has medically examined the victim. This witness has stated that there was no injury on the private part of the victim. On internal examination, doctor found that hymen of the victim was old torn. The vagina admits two finger easily. Slide of vaginal smear was prepared and sent for examination, in which no fresh injury was seen, Ext Ka-5. For determination of age, x-rays of right elbow, right wrist and right knee were advised. This witness has further stated that as the x-ray report was not received, no supplementary report could be prepared.

After closure of the evidence, the statements of the accused were recorded under section 313 Cr.P.C., in which they denied the occurrence and have stated that they have been falsely implicated in this case. The accused further stated that on 15.06.1995 at 6.00 P.M., they had a dispute with Subedar, husband of the victim over canal water, in which Subedar has received some injury and he has lodged an NCR on 16.06.1995 at 8.00 A.M. at Police Station Nigohi, under sections 323, 504 IPC. Thereafter, on the advise of Ajay Pal Singh, an Advocate of the village, this false report has been lodged. In support of their defence the accused have produced DW 1 Daya Ram, son of Nanhey Lal.

DW-1, Daya Ram has stated that Subedar is his real brother. On 15.06.1995, there was an altercation between his brother Subedar and Ram Kumar and Santosh. There was a free fight during altercation. This witness has further stated that he intervened in the matter. This witness has also accompanied Subedar to the Police Station next day. Report of Marpeet was lodged. When this witness, Subedar and his wife have reached station for going to house, they met Ajay Pal and Seth Pal. Ajay Pal is an Advocate. They have shown the report to Ajay Pal on which he replied that nothing will happen on this report. Thereafter, Ajay Pal has got the report lodged. This witness has further stated that there was enmity between Ajay Pal and the accused.

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 appellants have come up in this appeal.

Heard Shri R.L. Verma and Shri K.N. Raha, learned counsel for the appellants, learned Additional Government Advocate for the State-respondent and perused the lower court record.

Learned counsel for the appellants has submitted that there is delay in lodging the first information report. The occurrence is said to have taken place on 15.06.1995 at 08:00 P.M., whereas the report of the incident was lodged at the Police Station on the next day i.e. 16.06.1995 at 19:00 hrs. i.e. after about 23 hrs. of the occurrence. The written report is typed copy in which it has been mentioned that on 15.06.1995, the victim has gone to the Police Station but only a report regarding causing injuries were written. No report regarding factum of rape was written. Copy of the G.D. is Exhibit Ka-4 which is dated 16.06.1995 according to which DW-1 Daya Ram accompanied the informant. As regards the lodging of the first information report is concerned, the victim has stated that the occurrence took place at 08:00 P.M. She went to lodge the report in the morning. Due to fear in the night, she did not lodge the report in the night. She has further stated that she met Seth Pal Singh, Advocate at the Station Jungpura. She got her application typed at the S.P. Office which was sent to the Police Station with the constable. Thus, the delay in lodging the first information report has by and large been explained.

As far as the evidence of the victim is concerned, in , (2009) 15 Supreme Court Cases page 566 [Tamieezuddin Alias Tammu v. State (NCT of Delhi)], it has been mentioned as under:--

"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable."

The victim PW-1 has stated that she knows the accused very well at the time of occurrence. She was sleeping in her house. Her daughter Santa and small children were present in the house. Ram Kumar armed with country made pistol and Santosh Armed with a gun entered her house. They forcibly took her in the room and both have raped her. On seeing this, her daughter Santa raised hue and cry at which her husband came there. At which the accused Santosh also assaulted her husband with the butt of the gun due to which he received injuries. She herself was also beaten by Santosh by the butt of the rifle. Every witness has to undergo the test of cross-examination which this witness also had to under go. In cross-examination, she has stated that after dinning, all the family members were lying down. Her husband was not at home, he was irrigating the fields. In cross- examination, she has stated that both the accused entered her house at 08:00 P.M., her house was bolted from inside. The accused did not call from outside but they broke open the latch, pushed the door forcibly which opened but she could not hear the noise. In the regard Santa, the daughter of the victim has also said to be present on the spot has stated that the accused entered her house from the southern door. The doors was not bolted, infact they were just closed. Thus, both the witnesses are in contradiction to each other, whether the doors were broken open by the accused or they were not at all bolted. But as per the statement of the I.O., there was no signs of breaking of the doors of the house of the victim.

Further, the victim has stated that her children kept on sleeping during the incident. Only her daughter Santa was awaked who was lying on the cot while this witness was standing on the floor. She has further stated that Santosh attacked her with the gun (country made pistol) due to which she sustained injuries on her left cheek at which Santa started weeping and started raising alarm. She was initially dragged by Santosh and later by Ram Kumar. She also raised hue and cry. First she was beaten by Santosh and later by Ram Kumar. She fell down on the floor and became unconscious. When Santa raised alarm, her father Subedar came at which he was also beaten by the accused persons and after beating the husband of the victim, both the accused fled away. At that point of time, the victim''s brother-in-law Daya Ram DW-1 reached and whole incident was narrated to him.

Santa PW-2 has stated that when Ram Kumar got her mother dragged, she raised alarm. Both the accused raped her mother and Ram Kumar also caught her. Now this is neither the case of the first information report nor the version of the informant/victim PW-1. This witness has further stated that her father came in the house when Santosh was in the room and was raping her mother. She has also stated that Ram Kumar only caught her but he did not beat her. Her father came in the house one and half hour after the accused came. First, Santosh went in the room after that Ram Kumar went in the room. Her father was beaten for half an hour.

Subedar PW-3 is the husband of the victim and father of PW-2 Santa. He has stated that the accused are not his friends. At the time of incident his wife, daughter Santa and small kids were at the house. Santosh was armed with the gun. He did not know with what Ram Kumar was armed. This witness has further stated that when he entered the house, Santosh was standing near his daughter Santa. After the accused fled away, his wife told him that she was raped by both the appellants. He has stated that the accused have caused injuries with the butt of the gun. He has further stated that there is possibility that his wife has also beaten by the accused. He has also stated that his daughter did not tell him anything but on his return, his wife told him everything. He has denied of having met Advocate Seth Pal Singh, whereas his wife has admitted that they met Advocate Seth Pal Singh. This witness Subedar has admitted that the first information report has typed by an Advocate.

DW-1 is Daya Ram who is real brother of Subedar Singh i.e. the real brother-in-law of the victim.

Counsel for the appellants has submitted that there was enmity between the victim and the accused, hence the appellants have been falsely implicated. The victim has admitted in her cross-examination that dispute between the accused and her husband took place due to irrigation of the fields. She has admitted that the dispute due to irrigation of fields took place three days prior to the incident. The accused are Gundas, the accused wanted to catch her at that time but she came back. The accused are also thieves. They have robed the agricultural equipments of the victim.

Subedar PW-3 has specifically stated that there was no dispute between the accused and the wife but his real brother Daya Ram DW-1 who deserves the same respect as a prosecution witness, has stated that some dispute has definitely took place on 15.06.1995 between the accused appellants and Subedar. Some assault also took place on the next day. This witness accompanied with Subedar Singh and went to lodge the report and the report was lodged. After that Subedar Singh, his wife and this witness came to the station where they met Seth Pal and Ajay Pal who got the report typed. He has also stated that no incident of rape took place with his sister-in-law and the accused did not enter in the house of the victim. There is no reason why this witness being real brother of the husband of the victim, would tell lie because, even the victim has stated that when the occurrence took place immediately after the occurrence, this witness DW-1 Daya Ram has entered the house to whom the whole incident was narrated.

As far as medical evidence is concerned, there were no visible marks of injury on the body of the victim but there were two simple injuries on the person of Subedar which have been explained in the Statement of PW-4 Dr. Yogesh Kaul.

On what has been said and discussed above, I find that the statements of the witnesses have major contradictions. The medical evidence also does not support the prosecution version. 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 11.03.2010 passed by the learned Additional Sessions Judge, Court No. 8, Shahjahanpur in Sessions Trial No. 692 of 1995 (State v. Ram Kumar and another) arising out of Case Crime No. 86 of 1995, under sections 456, 376(2)(g) and 323 I.P.C., Police Station Nigohi, District Shahjahanpur is hereby set aside.

The appellants namely Ram Kumar and Santosh are in jail. They shall be released forthwith in this case. 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.