Ramoo vs State of U.P.

Surendra Vikram Singh Rathore, J.—Under challenge in this appeal is the judgment and order dated 11.1.2012 passed by learned Additional Sessions Judge, Court No. 12, Hardoi in Sessions Trial No. 22 of 2011 arising out of case crime no. 730 of 2010, Police Station Pihani, District Hardoi, whereby the appellant was convicted for the offence u/s 376 and 306 I.P.C. and was sentenced for the offence u/s 376 I.P.C. with rigorous imprisonment for a period of seven years and also with fine of Rs. 3,000/-with default stipulation of two months additional imprisonment. For the offence u/s 306 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 one month additional imprisonment.

In the instant case, charge sheet was filed by the police u/s 376/511 and 306 I.P.C., accordingly charges were framed. However, during trial, on the basis of evidence of PW-1, vide order dated 23.4.2011, charge was altered from 376/511 I.P.C. to 376 I.P.C.

In brief the case of the prosecution as per F.I.R. was that the victim was the daughter of the complainant. On 1.10.2010 in the evening, the victim aged about 19 years, was managing smoke near the cattles meanwhile the appellant reached there and was outraging her modesty. In the meantime, the complainant reached there and appellant Ramoo ran away from there. The complainant went to his house along with the victim and also pacified her. In the same night, the victim committed suicide. Thereafter F.I.R. of this was lodged on 2.10.2010 at 12:10 p.m. at Police Station Pihani. On the basis of this F.I.R., the case was registered and investigation started. Inquest proceedings were conducted, place of occurrence was inspected by the Investigating Officer. The dead body of the victim was sent for postmortem. The postmortem was conducted on 3.10.2010 at 4:00 p.m. In the postmortem report, the age of the victim was described as 17 years and following injuries were found on her person:-

(i) A ligature mark of size 24 c.m. X 2 c.m. situated high up around the neck, leaving a gap of.6 c.m. on left side of neck near angle of mandible, mark is grooved hand leathering on dissection subcutaneous tissues found dry while glistening with congested margin.

(ii) Abrasion 1 c.m. x.5 c.m. on front of vulva above elloris. Hymen ruptured.

In the opinion of doctor, the cause of death was asphyxia as a result of hanging.

After investigation, charge sheet was filed u/s 376/511 and 306 I.P.C.

The case of the defence was that he has been falsely implicated in this case due to enmity. Prior to this incident, father of the appellant had lodged an F.I.R. against elder brother of the complainant for the allegation of firing on him and elder brother of the complainant Kishnu, who has been examined in this case as PW-3 was facing trial in the said case.

In order to prove its case, the prosecution has examined PW-1 complainant Ram Naresh father of the victim, PW-2 Smt. Sarala, wife of the complainant, PW-3 Kishnu alias Shri Kishan, elder brother of the complainant. PW-4 Head Constable Satendra Kumar, who has prepared chik report and G.D. of the registration of the case. PW-5 Sub Inspector S.K. Shukla, who has conducted the investigation of this case. PW-6 Dr. Vinod Kumar Gupta, who had conducted postmortem of the victim.

No evidence was adduced in defence by 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 there was no allegation of rape in the F.I.R., the only allegation was that the appellant was trying to outrage the modesty of the victim. It has further been submitted that the victim was major aged about 19 years. It has further been argued that the victim was a consenting party and the complainant side himself tortured the victim because of her relation with the appellant due to which she committed suicide. It has further been submitted that prosecution has developed it case from F.I.R. and the evidence of the witness was so contradictory that it could not have been categorized as wholly reliable. It has further been argued that the alleged place of occurrence was an inhabited area surrounded by the residence of other villagers, therefore, the offence, as alleged during trial, could not have been committed in such a place at the time alleged by the prosecution. Apart from it, it has also been submitted that no independent witness of the locality has come forward to support the prosecution case. In the F.I.R. there was absolutely no allegation of abetment to commit suicide, however the prosecution has developed this story and it is an improvement, which cannot be relied upon.

Per contra, learned A.G.A. has submitted that all the three witnesses of fact have supported the prosecution story. Their evidence find corroboration by the medical evidence. The trial court has not committed any illegality in convicting the appellant as above. It has further been submitted that minor contradictions are bound to occur in the evidence of witness and such contradictions are not material in the eyes of law.

The first point to be considered is regarding the delay in F.I.R. The incident of rape is alleged to have been committed in the evening of 1.10.2010 and no effort was made to lodge the F.I.R. of this incident at the police station while it has come in the evidence that there are 20-25 members in the family of the complainant. It has also come in the evidence that in the night the victim committed suicide at about 2:00-3:00 a.m. PW-2 Smt. Sarala states that she committed suicide at 2:00 a.m. While PW-3 says that he got the information of suicide at 4:00 a.m. The F.I.R. of this case, even after suicide, was lodged at 12:10 p.m. on 2.10.2010 and the delay in the F.I.R. has not been explained. Though the complainant has stated in his evidence that he had not gone to lodge the F.I.R. of the offence of rape in order to save his family''s reputation. In his evidence, PW-1 has stated that for lodging the F.I.R. he had left his village at about 1:00 p.m. and the distance from the village to police station is about 3 kose (4.5 km.). As per chik report, the distance of police station from the place of occurrence was 7 km. However, the F.I.R. was lodged at 12:10 p.m.

Since it was a case of rape, therefore, the explanation furnished by the complainant that in order to save his family''s reputation, he did not go to lodge the F.I.R. and it was only after the death of the victim the F.I.R. was lodged appears to be plausible. Such an explanation furnished by the complainant is a reasonable explanation.

Law is settled on the point that mere delay in lodging the F.I.R. cannot be treated to be the sole ground to discard the entire prosecution case. If the delay is explained then it will not adversely affect the prosecution case and if the delay remains unexplained or unsatisfactory explanation for delay is furnished then it will adversely affect the prosecution case, but it by itself, would not be fatal to the prosecution. However, in such situation, duty is cast upon the court to appreciate the prosecution evidence with extra care and caution.

Hon''ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others Vs. State of Rajasthan, in para 12 as under:-

It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of Himichal Pradesh Vs. Gian Chand, , wherein a three-Judge Bench of this Court has expressed thus: -"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case." 13. In Ramdas and Others Vs. State of Maharashtra, this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution.

The next submission is that as per the improved prosecution version during trial, all the three witnesses of fact reached the place of occurrence, hearing the cries of the victim and have stated that they saw the appellant committing rape with her but it is really strange that inspite of this fact, no such allegation was made in the F.I.R. The version of the F.I.R. was only to the extent that

This version of the F.I.R. is absolutely different from the version, which has been brought forward by the prosecution witness during trial. Now the allegation is that the appellant came to the victim forcibly dragged her towards the sugarcane field. As per site plan, she was dragged into sugarcane field, which was at a distance of more than 60 meters from the house of the complainant, she was dragged for a distance of 35 paces as shown in the site plan and there rape was committed with her but it is really strange that no such fact was mentioned in the F.I.R. The complainant claims to have reached at the place of occurrence and allegation of only outraging the modesty was made at the place where the victim was managing smoke near the cattle. Even the place of occurrence has been changed during trial, the witnesses have not stated that they have seen the complainant and the victim at the place where she was managing smoke for the cattle but they claimed to have seen the victim and the appellant inside the sugarcane field where-from the appellant ran away. So PW-1 in his evidence has stated that the complainant dragged the victim from north to south and he also reached at the place of occurrence. He has stated that when he was dragging the victim at that time he was near the machine preparing todder for the cattle. Hearing the cries of the victim, he reached there and saw the incident inside the sugarcane field. The appellant ran away towards the northern side from the said place. In his evidence, PW-1 has stated that from his cattle yard, the sugarcane field was situated at a distance of seven paces. He has also admitted that house of the appellant was situated after two houses from the house of complainant. He has stated that he had heard the cries of the victim but he had not seen the appellant dragging the victim. Hearing the noise he also raised alarm and the appellant was standing at the ''Khadanza'' thereafter he could not go ahead. It is really strange that as per the F.I.R. whatever the complainant had seen, it was seen by him at the place where the victim was managing smoke but during trial he claims that nothing was seen by him that happened at that place.

As per the initial version of F.I.R., there was absolutely no case of the prosecution that the appellant, in any manner, instigated the victim to commit suicide while during investigation and trial, the case was improved and it was alleged that at the time while appellant was fleeing away from the place of occurrence, the appellant extended threats to the victim in the following words:-

PW-1 in this cross examination has stated that whatever is written in his report is correct. He has also admitted that the fact of attempt to outraging the modesty of the victim has correctly been mentioned in the F.I.R. He could not explain as to why the fact that the appellant dragged the victim inside the sugarcane field was not mentioned in the F.I.R. It was a very important fact because the rape is alleged to have been committed inside the sugarcane field. Therefore, non mentioning of this very important fact assumes importance and creates doubt regarding the correctness of the prosecution story while the specific case of the complainant is that he also reached the place of occurrence. The story of dragging into the sugarcane field has deliberately been improved, because the place where the victim was present and as per the version of F.I.R. the complainant also reached, that was not a place where rape could have been committed in the evening because that place is surrounded by several houses.

It is true that F.I.R. cannot be treated as an encyclopedia of entire prosecution case but definitely the prosecution is required to mention the important aspect of the case in the F.I.R. PW-1 has admitted that it has been mentioned in the F.I.R. that Ramoo was outraging the modesty of the victim. He reached the place of occurrence. Thereafter Ramoo ran away from there. The complainant has stated in his cross examination that hearing the alarm of the victim, he and his family members ran towards the place and found the victim in the sugarcane field and the appellant was running towards the northern side. In the cross examination, the complainant could not furnish any explanation as to why the fact of dragging the victim inside the sugarcane field was not mentioned in the F.I.R. He has also stated that age of the victim was mentioned to be 19 years in the F.I.R. by mistake. He has further stated that when the appellant was dragging the victim at that time he was at a distance of one house from the victim and he also raised alarm and hearing his noise, the appellant stopped at the "Khadanza" and he has stated that he had lifted the victim from the sugarcane field but above two statements shows that when the complainant reached there, hearing the noise, at that time, the appellant was standing at the "Khadanza" road so there was absolutely no occasion for the appellant to commit rape with the victim after dragging her inside the sugarcane field in the presence of the witnesses. Therefore, the allegation that the witness saw the appellant, committing rape with the victim, does not inspire confidence particularly, keeping in view the version of the F.I.R. This witness has also admitted the enmity with the appellant in his cross examination. He has admitted that one F.I.R. was lodged by Asharam, who happens to be the father of the appellant, against Shri Kirshan, brother of the complainant, who has been produced as PW-3 in the instant case.

PW-2 Smt. Sarala is the wife of the complainant. In the examination in chief, she has given similar statement as has been given by the complainant. She has stated that she along with her husband reached the place of occurrence. Hearing the noise, she immediately rushed towards the place and by the time she reached there, the appellant ran away and had covered some distance, therefore, this statement of PW-2 also shows that she has not witnessed the appellant committing rape with the victim. This statement also negatives the allegation that the appellant instigated the victim to commit suicide because at that time, the appellant himself was making good his escape and was seen by the witness while running away from there. She has further stated that her daughter came out of sugarcane field. This statement is against the statement of PW-1 where he says that he brought the victim out of sugarcane field after lifting her. This witness has also admitted the earlier incident firing between the two family.

PW-3 is Kishan Kumar, real brother of the complainant, he has also stated that hearing the noise, he also rushed towards the place of occurrence while he was going to place of occurrence he met Mahipal and Ram Naresh, complainant and his wife. Thereafter they went towards the field of Ram Naresh and saw the appellant committing rape with the victim. On their alarm, the appellant ran away leaving the victim and asked her to commit suicide. This witness in his cross examination has stated that when he reached there then the victim was in the sugarcane field, and the appellant had run away from there leaving the victim. The complainant has not mentioned in the F.I.R. that this witness was also present at the place of occurrence. He has stated that he had seen the appellant from a distance of 6-7 paces while running away from the place of occurrence. Therefore, the evidence of this witness also shows that he had seen the appellant running away from the place of occurrence. Therefore, submission of learned counsel for the appellant that none of the witness has seen the appellant committing rape with the victim has substance. The other witnesses produced, were of formal nature. Apart from it, the place of occurrence, as shown in the site plan (Ex. Ka-6) is surrounded by the village Abadi. There are houses of the complainant family and other persons in the vicinity and after the house there is "Khadanza" road and adjacent to the "Khadanza" road, there is sugarcane field of the complainant. The contradictory statements of the witnesses on this point assumes importance keeping in view the averments made in the F.I.R.

Therefore, the improvement of the initial version of the prosecution does not inspire confidence and it appears to be a deliberate improvement to make the case more serious. What transpires from the evidence and the version of the F.I.R. that the appellant outraged the modesty of the victim and he was seen by the complainant. So the offence committed by the appellant falls within the purview of Section 354 I.P.C. and does not fall within the purview of offence of rape.

Now the point to be considered is whether the offence u/s 306 I.P.C. has been committed or not.

Section 306 I.P.C. reads as under:-

"306. Abetment to suicide.-It any person commits suicide, whoever abets the commission of such suicide, shall be punished with the imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

The gravamen of the offence punishable u/s. 306, I.P.C. is abetting suicide. Section 107, I.P.C. defines abetment as comprising:

(a) instigation to commit the offence;

(b) engaging in conspiracy to commit the offence, and

(c) aiding the commission of an offence.

Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence u/s 306 of IPC.

Hon''ble the Apex Court in the case of State of West Bengal Vs. Orilal Jaiswal and another, has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. ''Abetted'' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.

In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [Mahinder Singh v. State of M.P. 1995 AIR SCW 4570]

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Sohan Raj Sharma Vs. State of Haryana,

Abetment thus necessarily means some active suggestion or support to the commission of the offence. The word ''instigate'' literally means to goad, urge forward, provoke, incite or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. It is also not necessary that the instigation should be only in words and may not be conduct. Direct evidence of any instigation or aid is not necessary.

In order to constitute the offence of abetment to commit suicide, there must be instigation on behalf of the accused. It may be by words or conduct. But in the instant case, there was absolutely nothing in the F.I.R. to constitute the offence of abetment to commit suicide. The prosecution has developed its case and has also mentioned that the appellant abetted the victim to commit suicide. The prosecution has improved the version of FIR and has come with the case that the appellant directly abetted the victim to commit suicide.

This fact of abetment to commit suicide, in view of the discussion made above, does not inspire confidence. As has been held that evidence regarding the incident inside the sugarcane field is full of contradictions and does not inspire confidence. So there remains no evidence on the point of instigation or abetment by the appellant to commit suicide.

Submission of learned counsel for the appellant has substance that the appellant and the victim were having affairs. The complainant saw them talking each other in the dark place, near the cattle. So the family members of the complainant scolded the victim against such relationship, due to which she committed suicide. This submission assumes importance because no effort is alleged to have been made to make any complaint to the family members of the appellant or to go to the police station to lodge the F.I.R.

In view of the discussion made above, this Court is of the considered opinion that conviction of the appellant u/s 376 and 306 I.P.C. was not sustainable under law. The trial court has overlooked some important aspect and material contradiction in the evidence which renders its judgment unsustainable under law. Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. The appellant is acquitted of the charge u/s 306 I.P.C. However, conviction of the appellant u/s 376 I.P.C. is hereby modified to Section 354 I.P.C. The appellant has already remained in jail for a period of more than two years. So keeping in view the offence proved against the appellant he is sentenced with imprisonment for the period already undergone by him in this case. The appellant is on bail. He be set at liberty. His bail is cancelled and sureties discharged.

Office is directed to communicate this order to the court concerned forthwith for compliance and lower court record be sent back.