Shivpoojan vs State of U.P.

Ranjana Pandya, J.—1. Challenge in this appeal is to the judgment and order dated 02.05.2013 passed by Dr. Gokulesh, learned Additional Sessions Judge, Court No. 1, Banda in Sessions Trial No. 235 of 2010 (State v. Shivpoojan) arising out of Case Crime No. 178 of 2010, under sections 452, 376, 323, 504, 506 IPC, Police Station Atarra, district Banda, whereby the appellant Shivpoojan has been convicted and sentenced to two years'' RI under section 452 IPC and a fine of Rs. 1000/-, one year''s RI under section 323 IPC, seven years'' RI under section 376 IPC and a fine of Rs. 5000/-, six months'' RI each under sections 504 and 506 IPC with default stipulation.

Filtering out unnecessary details, the prosecution case is that a written report was lodged by one Jagjeevan Ram mentioning that he is resident of Shiv police station Bisanda, district Banda and belongs to scheduled castes. He accompanied by his 15 years old niece went to his maternal uncle Pradeep Kumar''s house at Khambhaura, police station Atarra on 06.07.2010. He had taken lunch and remained there in the house of his maternal uncle Pradeep Kumar. At about 8.00 p.m. he had taken dinner at the house of Ramgulam and were going to sleep, suddenly in the intervening night of 6/7 of July, 2010 at 10.00 p.m., the accused Sadashiv and Shivpoojan entered the house of Ramgulam, lifted the informant from the cot, abused him and took him near the tap. They used caste derogatory remarks towards the informant. They were armed with country-made pistol. They asked the informant to call the girl, which he had brought with him. When he refused, he was badly beaten. The niece of the informant was taken away at the point of country-made pistol in the adjoining house and both the accused committed rape on her. They also threatened the girl and fled away. The informant along with the victim came to the station in the night and stayed at the station and later on written report was lodged.

On the basis of this written report, PW-5 Constable Lakharam prepared the chik report, which was proved as Ext. Ka-5. He further scribed the G.D. and proved it as Ext. Ka-6.

Investigation was entrusted to C.O. Rajendra Prasad Yadav. This witness PW-5 Lakharam was acquainted with the hand writing of the C.O. Rajendra Prasad Yadav, who inspected the spot and prepared the site plan and submitted charge sheet in his writing, which was proved by this witness respectively as Exts. Ka-7 and Ka-8.

The victim was examined by Dr. Bhawana Sharma, PW-2, who did not find any marks of injury on the body of the victim. She proved the medical report as Ext. Ka-1 and the supplementary report as Ext. Ka-2. PW-3 is Dr. P.S. Sagar, the radiologist, who conducted the ossification test of the victim, which was proved as Ext. Ka-3. The X-ray plates were proved as material Exts. 1 and 2.

The prosecution examined as many as five witnesses. PW-1 is the victim. The evidence of PW-2, PW-3 and PW-5 has been discussed above. PW-4 is the informant Jagjeevan Ram, who proved the first information report as Ext. Ka-4.

After closing the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which he denied the occurrence. However, no evidence was adduced in defence.

Learned lower court after hearing the counsel for the parties found the accused guilty and sentenced him as stated in para 1 of the judgment.

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

I have heard Shri Saket Jaiswal, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the trial court record.

Learned counsel for the appellant has submitted that the trial court has based its conviction on conjectures and surmises and the judgment is not tenable in the eyes of law.

Per contra, learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed.

Perusal of the chik report shows that the occurrence is said to have been committed in the intervening night of 6/7 of July, 2010, whereas the report was lodged on 07.07.2010 at 12.15 hours. The distance of the police station is 8 km from the place of occurrence. The FIR is prompt and there is no delay in lodging the FIR.

As far as the occurrence is concerned, generally, in the 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 on 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 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 as has been held in Vishnu v. State of Maharashtra, , AIR 2006 SC 508.

The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & Ors. v. State of Maharashtra, , (1999) 1 SCC 220.

As far as the age of the victim is concerned, there is no academic report to prove her age. Although in the FIR, her age was stated to be 15 years, but as per medical report Ext. Ka-2, she was above 18 years of age. The victim PW-1 has stated that her age to be 17 years. By and large, she was above 16 years at the time of occurrence. Generally, the allegations of the victim would be given weight in such cases where corroboration is not possible.

In my opinion, since she was an interested, partisan and unreliable witness, who was a privy to the whole episode, therefore, to save her skin, she had narrated a fabricated version. Without lending assurance from any independent source, her testimony was insufficient to hold appellant guilty. As pointed out above, she had changed her version from time to time and, therefore, cannot be relied upon.

As per statement of PW-1, she has stated that she had gone with Jagjeevan Ram to village Khamhaura. Why this witness accompanied Jagjeevan Ram is not clear because she has admitted that Jagjeevan Ram although is resident of the same village and when she left her village with her father, Jagjeevan Ram accompanied her and her father requested Jagjeevan Ram to leave her in the village, but Jagjeevan Ram brought her to Khamhaura forcibly on the pretext that Rs. 1500/- were lying at Khamhaura, he would take them. She has admitted that she never visited village Khamhaura. She had gone for the first time. She was not acquainted with the person of Khamhaura. What Jagjeevan Ram has stated in the matter is clear from the statement of PW-4, who has stated that he had left his village for Khamhaura at 3.00 p.m. He had mentioned the age of the victim being 15 years on her telling. He was forced to admit that he had mentioned the victim to be his niece since they belong to the same village. This witness was forced to state that the victim was not his real niece.

As far as the occurrence is concerned, as per FIR the informant was taken to the tap whereas the victim was taken to the neighbouring house and was raped there. In this regard PW-4 Jagjeevan Ram has stated that the accused persons were armed with country-made pistol, compelled him to call the victim and when he refused, he was beaten up and was tied with the Neem tree by a rope and the victim was raped. After the two accused fled, the victim opened her rope and both left the place. This version put-forth by this witness is not supported by the victim, who does not say that she untied the rope of the informant. In fact, she reveals another story, in which she has said that she was not married to Jagjeevan Ram, the informant. She never went with Jagjeevan Ram to Chitrakoot. She did not arrive at compromise with Jagjeevan Ram, but when a photograph on deed was shown to the victim, she admitted it to be her photograph. In her own statement she has stated that the informant had filed a case for search warrant before the S.D.M., Chitrakoot due to which she along with her parents had to appear in that case.

This is a glaring case, in which the provisions of law have been badly misused, inasmuch as the victim has stated that . Thus, it is clear that report was lodged just to obtain money from the Government. The victim has in so many words stated that she did not know the accused persons from before. She has also stated that names of the accused persons were told to her by Jagjeevan Ram because at the time of occurrence, it was night and she could not recognize the face of anyone. She saw Shivpoojan for the first time at police station Atarra.

As regards the relation of the informant with the victim, the informant PW-4, Jagjeevan Ram has stated that he had filed a case before the S.D.M., Karvi. In so many words he has admitted that He has also went to the extent stating that he is innocent in the matter. Thus, it has been proved by the admission of the prosecution witnesses that the informant and the victim were a married couple. Calling his wife as niece is a conduct, which is not approved by the Indian society and is against the morals.

Thus, the whole prosecution story is nothing, but a bundle of lies, false statements and concocted improbable theories. The learned lower court has convicted the accused appellant in a no evidence case. The weakest part in the version given by the prosecutrix was her subsequent conduct. Thus, in conclusion, having regard to the conduct of the prosecutrix, the discrepancies in the statements of the witnesses, I come to the conclusion that the conviction of the accused-appellant under sections 452, 376, 323, 504, 506 IPC is bad in the eyes of law and the sentence and conviction is liable to be set aside.

Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused Shivpoojan, and as such the accused is entitled to be acquitted and the appeal is liable to be allowed.

Hence, the impugned judgement and order of conviction and sentence dated 02.05.2013 passed by Dr. Gokulesh, learned Additional Sessions Judge, Court No. 1, Banda in Sessions Trial No. 235 of 2010 (State v. Shivpoojan) arising out of Case Crime No. 178 of 2010, under sections 452, 376, 323, 504, 506 IPC, Police Station Atarra, district Banda is hereby set aside.

Accordingly, the appeal is allowed.

The appellant-Shivpoojan is in jail. He shall be released forthwith unless wanted in any other case. The provision of Section 437-A Cr.P.C. shall be complied forthwith.

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