Rangi Lal Nishad vs State of U.P.

Ranjana Pandya, J.—This criminal appeal has been preferred against the judgment dated 4.7.2015 passed by Additional Sessions Judge, Court No. 2, Jalaun, Orai in Session Trial No. 37 of 2013 (State Vs. Rangi Lal Nishad), under Sections 376 , 454 , 380 I.P.C. and Section 4 of the Protection of Children From Sexual Offences Act, 2012 in Crime No. 754 of 2013, whereby the accused-appellant was found guilty and he was convicted under Section 376 I.P.C. for 7 years imprisonment coupled with Rs. 5,000/- fine. He was further convicted for 7 years under Section 4 POCSO Act coupled with Rs. 10,000/- fine with default stipulation. All the sentences were to run concurrently.

The brief facts of the case are that the informant Bharat Singh submitted a written report at the police station Kotwali, Kalpi stating that on 2.8.2013 at 2 O''clock in the day time, when the informant and his wife had gone to the field, his daughter Km. Sharmeeli aged about 15 years was present alone at the house. She was suffering from high fever. Suddenly, his neighbour Rangi Lal Nishad trespassed into the house of the informant and bolted the house from inside. He took out Rs. 10,000/- cash and gold and silver jewellery worth of Rs. 17,000/- from the box. On hearing noise, his daughter waked up and rebuked the accused, at which the accused closed the mouth of the victim and raped her and ran away from the house of the informant. Niece of the informant namely Neetu and one Gayatri and Sunita saw the accused running away from the house of the informant. When the informant came back from the fields he came to know about the whole matter. Since, there were flood in the Yamuna river, he could not go to lodge the report for two days. Thus, he lodged the report on 4.8.2013.

On the basis of this written report chik report was scribed and G.D. was written by the concerned constable clerk, which was proved by P.W. 5 retired Sub-Inspector Jai Pal singh as Exhibit Ka-7 and Ka-8 respectively. Investigation was entrusted to P.W. 5, who conducted the investigation. He copied the report and G.D. in the case diary, recorded the statement of the victim tried to trace the accused. Finally, he arrested the accused and obtained the medical report of the victim, prepared site plan and proved it as Exhibit Ka-5.

After that on 18.8.2013 he recorded the statements of the witnesses Nitu, Gayatri and Sunita, perused the medical report, supplementary report and submitted the charge-sheet against the accused person, which was proved as Exhibit Ka-6. He verified the date of birth of the victim, which was proved to be 5.1.1999.

The prosecution examined as many as six witnesses. P.W. 1 as Bharat Singh-informant, who proved the written report as Exhibit Ka-1. P.W. 2 is Km. Sharmeeli, the victim, who proved her signatures on the memo as Exhibit Ka-2. P.W. 3 is Nitu Devi, who is said to have eye witness seeing the accused running from the house of the informant. P.W. 4 is Dr. Sunita Banaudha, who is said to have examined the victim and proved the medical report as Exhibit Ka-3 and supplementary report as Exhibit Ka-4 respectively. P.W. 6 is Sant Ram Incharge Principal, he had appeared before the trial court, who verified the date of birth of the victim and proved it as Exhibit Ka-9 and also proved the admission register and copy of the Transfer Certificate as Exhibit Ka-10.

After closing of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence and stated that his uncle Rana Sudheer was murdered in which Uma Shankar, Krishna Bihari, Bal Singh and Sone Lal were accused. The father of the accused was doing the pairvi on behalf of the accused, due to this enmity his father was taken to the police station and when he went to see his father, he was falsely implicated in this case. At the time of incident, the age of the victim was more than 18 years. The accused produced D.W. 1 Nathu Ram in defence to prove the enmity. The accused filed copy of the judgment delivered in S.T. No. 2008 of 2008, which is marked as Exhibit Kha-1.

After perusal of the record and hearing learned counsel for the parties, the learned court below returned the finding of guilt of the accused person and sentenced him as aforesaid. Being aggrieved, the appellant has come in the appeal.

I have heard the learned counsel for the parties and perused the record. The following points were raised before this Court during the course of the argument:-

* F.I.R. is delayed and in the absence of reasonable and plausible explanation, the prosecution case becomes doubtful.

* The victim is a major and consenting party. Her statement is unreliable and conviction cannot be based on her testimony.

* The medical evidence and the ocular evidence are contradictory.

(i) F.I.R. is delayed and in the absence of reasonable and closeable explanation, the prosecution case become doubtful.

The F.I.R. is the backbone of a criminal case. Ante time F.I.R. containing the details of the accused alongwith broad details would suffice, as the F.I.R. is the backbone of a criminal case, which sets the machinery into notion.

In Amar Singh Vs. Balwinder Singh and Others, , the Hon''ble Apex Court has laid down in regard to the delay in lodging of F.I.R. that many circumstances have to be seen. There is no hard and fast rule that any delay in lodging the F.I.R. would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the F.I.R. which may cast doubt about the veracity of the prosecution case and for this, a host of circumstances like the condition of the informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging the F.I.R.

The Hon''ble Apex Court in Tara Singh and others Vs. The State of Punjab, , has held that:-

"the delay in giving the F.I.R. by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin, who have witnessed the occurrence cannot be expected to go mechanically with all promptitude in giving report to the police. At times being grief-stricken because of the calamity, it may not immediately occur to them that they should give a report. After all, it is but natural, in these circumstances for them, to take sometime to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons, the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate the grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the F.I.R. also will have to be scrutinized carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the F.I.R. and later substantiated by the evidence, merely on the ground of delay. These are all matters of appreciation and much depends on the facts and circumstances of each case."

In the present case, the occurrence is said to have been taken place on 2.8.2013, whereas the report was lodged on 4.8.2013, the distance of the police station from the place of the occurrence being 4 k.m. The reason for lodging the F.I.R. after delay, has been shown in the F.I.R. to be floods in the Yamuna river. As far as the oral evidence on this point is concerned Bharat Singh, P.W. 1, the informant has stated that on the date of the occurrence, when he returned home the whole incident was narrated to him by his daughter. But since there was flood in the Yamuna river, he could not go to the police station to lodge the report for two days, ultimately, he went to the police station on 4.8.2013. He was accompanied by his daughter and his wife. P.W. 2 is the victim who is said to have accompanied to her father to the police station. In examination-in-chief she has stated that due to flood in the river, her father could not go to the police station, but there is contradiction in the statement of the victim and the father of the victim. Inasmuch as P.W. 2 the victim has stated that she had gone to Kalpi from her village by boat. The river was over flowing and it took two hours for her to reach the police station. She was accompanied by her mother and father.

On this point P.W. 1 Bharat Singh has said that it took him 2 to 4 hours to reach the police station. The report was written at 9:30 p.m. in the night. According to the complainant he went by foot to the police station, whereas according to victim, she went by boat to the police station with her parents.

(ii) The victim is a major and consenting party. Her statement is unreliable and conviction cannot be based on her testimony.

According to the F.I.R., the age of the victim is 15 years. According to the Radiological report, her age is below 18 years.

Learned counsel for the appellant has contended that the prosecution has produced P.W. 6 Sant Ram, Incharge Principal, who has proved the copy of the Admission Register as Exhibit Ka-9. He has filed copy of Transfer Certificate, which is Exhibit Ka-10. Perusal of Exhibit Ka-10 shows that it is a certificate issued by P.W. 6 Sant Ram stating that the date of birth of the prosecutrix as per school record is 5.1.1989. Exhibit Ka-9 is the copy of the Admission Register, which relates to Junior High School Devkali, in which the date of birth of the victim stated to be 5.1.1999. As regards this document P.W. 2 victim Sharmeeli has specifically stated that she has studied in Junior High School, Devkali from Class VI to VIIII.

She has also stated that prior to this, she studied from Class I to V in Primary Pathshala, Devkali. Thus, Exhibit Ka-9 and Ka-10 relied upon by the prosecution, neither of them are admissible as per Provision of Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007, which reads as under:-

"12. Procedure to be followed in determination of age-(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decided the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (I), (ii) or (iii) of clause (a) above the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

Thus, the sequence in which the documents/evidence can be relied upon has been given aforesaid. The documents relied upon by the prosecutrix are not covered under any of the heads. Thus, the court has to revert to the medical evidence of the prosecutrix. P.W. 4 Dr. Sunita Banaudha, C.M.S., has proved Exhibit Ka-3 and Ka-4. According to Exhibit Ka-4, there is no opinion about the age of the victim. Although, there is an age determination certificate bearing No. 13 Kha, but in the absence of proof, this document cannot be looked into. Thus, there is no medical evidence also to show that the victim was minor at the time of occurrence.

Even P.W. 4 Dr. Sunita Banaudha has not stated the age of the victim. Although, the matter was referred to the Radiology for determination of age, but what was the age of the victim at the time of occurrence is not on record.

P.W. 1 Bharat Singh, has stated that the date of birth of the victim was 5.1.1999, even the victim P.W. 2 Sharmeeli has stated her date of birth to be 5.1.1991. This could not be corroborated by the documentary evidence, although, the documentary evidence was available with the prosecution. The prosecution adduced inadmissible documentary evidence, on this point, which could not be relied upon for holding the victim a minor. P.W. 2 is the victim, who has stated that the accused entered her house and raped her.

According to her version the accused committed theft of Rs. 10,000/- and ornaments and when she woke up, he raped her. Admittedly, the accused is the next door neighbour of the victim and the manner in which the occurrence is said to have been taken place appears to be improbable, inasmuch, in cross-examination P.W. 2 the victim has stated that as soon as the accused was leaving her room after committing theft and she woke up and rebuked him, Rangi Lal closed her mouth with one hand and raped her. At that time she was in the courtyard. This does not find support from the site plan Exhibit Ka-5, which shows that rape was committed with the victim at Point-B, where she was sleeping. Point-B is a room adjoining the courtyard behind the room facing the North.

Again bringing contradictory evidence on record, this witness has stated that Rangi Lal dropped her in the courtyard, although there is no evidence that she was pulled from the room where she was taking rest. Thus, it is not clear as to how she came to the courtyard. As regard the incident is concerned she has said the the accused did not tear her clothes, but in fact he had disrobed her she was naked. Although, initially she was wearing a Salwar, Kurta, Panty and Samiz. This witness has stated that the accused took off all her clothes, but he only took of his pant. All along Rangi Lal pressed her mouth with one hand, thus, she could not raise alarm. This theory is unreliable, because it cannot be imagined how a man could keep his one hand engaged by closing the mouth of the victim and by only one hand most probably being the left hand he could disrobe the victim and also take off his pant and rape her.

Contradicting herself in the next breath the victim has stated that she was raped on the cot, which continued 2 to 3 minutes, while she was being raped Rangi Lal caught hold of both her hands with his hands and had pressed her body by his body. She did not try to get herself released as she could not do so. This statement brings down the whole prosecution case, as initially the victim has said that one hand of the accused was engaged in pressing her mouth, whereas in the next breath she said that the accused had caught both her hands with both his hands. Thus, the statement of the victim goes to show that she changing her statement in every breath. She did not raise any hue and cry, her statement is also very unreliable and contradictory.

In case of Vishnu @ Undrya Vs. State of Maharashtra, it has been held that:-

"In cases of rape, the court does not ponder to find corroboration, if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies would should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony."

Thus, I conclude the statement of the victim as being unreliable and as a rule of prudence, the Court requires corroboration of her statement in this particular case.

(iii) The medical evidence and the ocular evidence are contradictory.

It has been contended on behalf of the appellant that the ocular and medical evidence are contradictory. According to the medical evidence, the Doctor could not give any opinion about rape, since the victim was used to sexual intercourse.

P.W. 1 Bharat Singh, father of the victim is not an eye witness, his statement is hearsay. He has also inducted a theory that initially the accused committed theft, when he was seen by the victim, he raped her. Learned counsel for the appellant has submitted that the informant had inimical terms with the accused, hence the prosecution evidence has to be read cautiously.

P.W. 1 Bharat Singh, has admitted that Ramu is his brother and the witness Nitu is his niece. He has further admitted that Shatrughan is his brother. As far as enmity is concerned, P.W. 1 Bharat Singh has admitted that Rajjan is the father of the accused and Munna is brother of Rajjan and Rana Sudhir is cousin of Rajjan. Although, in his cross-examination he has said that he did not know whether Rana Sudhir was murdered or not, but in the next breath he admitted that the case of the murder of Rana Sudhir was tried before the present occurrence. He has further admitted that Bal Singh is his wife''s brother-in-law. He was forced to admit that the case regarding murder of Rana Sudhir was tried against Bal Singh others. Victim P.W. 2 denied Bal Singh being her Mausa, whereas her father P.W. 1 admitted this fact. Thus, it appears that P.W. 2 victim intelligently tried to conceal the material facts and tried to put incorrect facts before the Court. Thus, enmity of the informant with the father of the accused prima facie stands proved as according to Exhibit Kha-1, Bal Singh was accused in S.T. No. 208/2008, in which Mausa of the victim was the deceased. P.W. 1 Bharat has stated that the room, in which the box was kept, from which theft was committed was the same room in which, his daughter was raped.

P.W. 3 is niece of the informant, who has stated that on 2.8.2013, she was playing outside the house of the informant, she heard sound of shrieks from the house of the informant, she knocked the door, which was opened by the accused, who fled away from the house. She saw Sharmeeli lying half dressed on the bed, who was weeping. Thus, the statement does not find corroboration from the statement of the P.W. 2 Sharmeeli, who has stated that when Nitu came, she was in the courtyard and when Nitu came to her, she was naked. Nitu and other girls dressed her up. Thus, neither the statement of P.W. 2 victim inspires confidence nor the statement of P.W. 3 Nitu is reliable. Even otherwise the story as put forth by the prosecution does not stand to digestion, inasmuch as if the next door neighbour has entered into the house and committed theft, he would not lock the door from inside, infact he would also not to try bolt the main door, so that he could flee away after committing theft, specially when inspite of being a neighbour, he had not muffled his face. Some contradictions have been pointed out towards the statement of the witnesses and the statement of the I.O. Defence has examined D.W. 1 Nathu Ram, who has stated that there was enmity between the father of the accused and the informant, inasmuch as Rana Sudhir was murdered in which Umashankar, Harishankar, Bal Singh and Sone Lal were accused. From the side of the accused, the father of the present appellant used to do pairvi. Thus, prima facie enmity of the father of the accused with the informant is established.

The complete prosecution evidence is shaky and unreliable. The conviction is based on inadmissible evidence. The trial court has committed grave illegality in convicting the accused without any evidence. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgment of conviction and sentence dated 4.7.2015 passed by Additional Sessions Judge, Court No. 2, Jalaun, Orai in Session Trial No. 37 of 2013 (State Vs. Rangi Lal Nishad), under Sections 376 , 454 , 380 I.P.C. and Section 4 of the Protection of Children From Sexual Offences Act, 2012 in Crime No. 754 of 2013, is hereby set aside.

Accordingly, the appeal is allowed.

The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.