Sumer vs The State of Rajasthan

R.S. Chauhan, J.

The appellant, Sumer is aggrieved by the judgment dated 28.3.2011 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sikar, whereby the learned Judge while acquitting the appellant for offences under Sections 147, 363, 376(2)(g) IPC, has convicted him for offence under Section 366 IPC. By an order of even date he has sentenced the appellant to seven years of rigorous imprisonment, imposed him with a fine of Rs. 5000/- and directed him to further undergo six months of rigorous imprisonment in default thereof.

Briefly the story of the prosecution is that on 22.10.2003 Smt. Bimla (P.W.4) filed a criminal complaint (Ex. P.1) before the Addl. Chief Judl. Magistrate, Neem-Ka-Thana, against Sriya @ Sriram, Smt. Rama, Leelaram, Ramdev, Pokhar, Radhey Shyam and Subhash. In the complaint, she claimed that "she along with her family are residents of village Luharbas, Police Station Neem-Ka-Thana, District Sikar. Both, her husband and she protect the crops from animals, and in this way they earn their living. On 18.9.2003 around 10 o''clock at night, Sriya and his wife, Rama came to their house. They took her husband and her to a different place on the pretext that they will go to another place for protecting the fields from animals. She left her daughter, (the name of the daughter has been withheld in order to protect her identity. Henceforth, she will be referred to as ''the victim'') 14 years old, and her other small children who are less than six years old. Next day, on 19.9.2003 when they came back home, they could not find the victim. They kept on searching for her, but could not locate her. Sixteen days ago, Jaggaram son of Jhutha Ram Gujar, resident of Chandoli, Hanuman son of Surja Bawariya, resident of Dudas, and Kesri wife of Hanuman Bawariya, resident of Dudas, told us that they had seen my daughter, the victim, near Jharna Baodi, with Ramdev son of Manglaram Gujar, resident of Kalakota, Pokhar son of Girdhari Gujar, resident of Chandoli, Radhey Shyam son of Manguram Gujar, resident of Dhani Chamaran Ki, Leelaram son of Gangaram Bawariya, resident of Kalakota, and Subhash Rajput, resident of Raotawali Tandunga Ki Nangal. They had seen my daughter with these persons on 19.9.2003 at about 9:00 AM. Having this information, her husband and she again started looking for their daughter. But neither the daughter, nor the accused persons could be located. She informed that Sriya @ Sriram and Rama are part of the criminal conspiracy. Radhey Shyam had come and stayed with us four-five days prior to the disappearance of my daughter. The accused persons in pursuance of a criminal conspiracy, have kidnapped her daughter in the night between 18.9.2003 and 19.9.2003. The complainant suspects that the accused persons have either raped her, or sold her somewhere. The complainant and her family members have searched for her everywhere, but they have not been able to locate her. On 14.10.2003 at 3:00 PM the elder son of the complainant, who lives in Salala Ki Dhani, and his uncle Moola, were crossing Kalakota Ki Dhani, when the accused Sriya, Rama and the younger brother of Sriya, Sumer met them. They threatened the son and his uncle, and told them to stop searching for the girl otherwise they will kill them. Sumer ran after them with a gun. The complainant had tried to lodge a report with regard to this incident on 15.10.2003, but it was not registered by the police. The complainant was told to meet the Dy.S.P. Sahib. Therefore, on 15.10.2003 she went and meet the Dy. S.P. Sahib. Again on 16.10.2003 she met him. But even then, the report was not registered. Subsequently, the complainant sent a complaint through registered AD to the S.P. Sikar. But even then, a report was not registered. Since the police has not registered a report, this criminal complaint is being filed before the court."

The said criminal complaint was sent for further investigation to the police under Section 156(3) CrPC. On the basis of the said complaint, a formal FIR (Ex. P.23), namely FIR No. 361/2003, was registered at Police Station Neem-Ka-Thana, District Sikar, for offences under Sections 147, 363, 366, 376 and 120B IPC, and for offence under Section 3 of the SC/ST (Prevention of Atrocities) Act. The police began its investigation. During the course of the investigation, not only the police statement under Section 161 CrPC, but also the statement under Section 164 CrPC of the victim, were recorded. After completing the investigation, except against Pokhar and Ramdev, the police submitted its charge-sheet against the remaining accused persons for offences under Sections 147, 363, 366, 376 and 120B IPC, and for offence under Section 3(1)(12) of the SC/ST Act. The charge-sheet was submitted before the Addl. Chief Judl. Magistrate, Neem-Ka-Thana. The case was committed to the court of Special Judge, SC/ST (Prevention of Atrocities Cases), Sikar.

Against the co-accused Leelaram and appellant, Sumer the learned Judge framed the charges for offences under Sections 147, 363, 366, 376 and in the alternate under Section 376(2)(g) IPC. But, during the trial both absconded. The trial of co-accused Pokhar and Ramdev ended with their conviction by judgment dated 5.7.2008. However, as appellant, Sumer continued to abscond, after being arrested the trial continued against him, and was finally decided by judgment dated 28.3.2011, the judgment impugned before this court.

In order to support its case, the prosecution examined twenty-two witnesses, and submitted thirty-eight documents. After completion of the trial, the learned Judge convicted and sentenced the appellant as aforementioned.

Before this court deals with the contentions raised by the learned counsel for the appellant, Mr. Amit Singh Shekhawat, by the learned Public Prosecutor, Mr. Aladeen Khan, and by Mr. Ajay Gupta, the learned counsel for the complainant, it would be fruitful to first mention the evidence produced by the prosecution.

The victim (P.W.5) is naturally the star witness of the prosecution. Since the victim was a child witness, aged 15 years, she was asked a question in order to gauge her maturity, and her ability to answer the questions truthfully. In her examination-in-chief she informs the court that "the incident had happened about an year and five months back. It was about 10:00 to 11:00 o''clock at night. My mother and father left with Sriya and Ramli for doing the work of firwali (the work for protecting the crop from animals). Subhash, Leelya and Sumer came. First Santosh and Sumer came and told me that my parents are calling me. Radhey Shyam, Pokhar, Ramdev, Leelya and Subhash came. They closed my eyes, and my mouth, and tied my hands. They carried me away. Near Jhiniya Wali Baodi they met Hanuman, Kesri and Jagdish. These three persons asked the accused persons, where they were going together today? They told them that we are going together today to this place itself. When we went further, we met Sriya and Rama. Sriya had a gun with him, and Ramli was armed with a lathi. These people had taken me away for the purpose of selling me off. They took me to Kalakota. There, but for Sriya, everyone committed rape upon me. After this, they took me to Copper Singhana for selling me off. They showed me to Santoshi and sold me off. The money was divided amongst Ramdev, Pokhar, Radhey Shyam, Leelya and Sumer. People kept on looking for me for one month. Then my mother filed a case. The police came and recovered me. My mother had filed the case in Neem-Ka-Thana. The police recovered me from Copper Singhana, the place where I was sold. When the police brought me, Ramdev, Pokhar and Radhey Shyam were with the police. Due to the rape, I have given birth to a girl. I am not married. I am still unmarried. The Deputy Sahib who recovered me, read some documents and asked me to put my thumb impression upon them. Then the witness said that she was not asked to put her thumb impression on the documents. My statement was recorded by the Magistrate Sahib. My thumb impression was taken there. I was also examined by the doctor. A note has been appended by the learned Trial Judge which reads as under:-

"The witness has looked at all the accused and said that all the accused except Radhey Shyam are present in the court."

In the cross-examination she states "if my mother had submitted a criminal complaint before the Neem-Ka-Thana court, I do not know about it. It is correct to say that after I was recovered, I have not said any of the things that I have told to the court today. The police did not record my statement. It is wrong to say that the police recorded my statement, instead my statement was recorded by the court. On 12.11.2003 the Deputy Sahib did not record my statement. I do not remember my date of birth. We are eight brothers and sisters. I do not remember the date of birth of any of them. It is true that because of the bad acts done by these people, the State Government has given my mother Rs. 50,000/-".

Subsequently, this witness was confronted with her statement given under Section 161 CrPC (Ex. D.2). She has practically denied everything recorded in Ex. D.2. Thus, the witness has disowned the entire statement (Ex. D.2). Later in her cross-examination she claims that "she did not give the statement Ex. D.2 to the police". She also admits that "the statement given by her under Section 164 CrPC, she did not give any of the information to her mother, or to her father, either before or after recording of the statement". However, subsequently in her cross-examination she also disowns her statement under Section 164 CrPC, when she was confronted with the said statement. She further admits that "she cannot tell the day of the week, date of the incident when she was raped". She further admits that "when the accused persons met Hanuman, Kesri and Jagdish, on the way, she could not shout as her hands and mouth were tied". She further admits that "at Copper Singhana, there were lots of people at the bus stand when the accused and she were walking passed the bus stand". She further admits that "although there were jeep drivers and bus drivers, but she did not utter a word there. She did not receive any injury on her body. Even the clothes were not torned". She claims that "she had shouted but no one came to her rescue. She further claims that from where they took her to Kalakota she cannot tell".

Bimla (P.W.4), the mother of the victim, informs the court in her examination-in-chief that "the victim was 14 years old at the time of the incident". She claims that "after looking for the child for ten to eleven days, they went near Chandoli where they met Jaggaram, Kajod and Kesri. It is they who told her that they had seen her daughter with Ramdev, Pokhar, Radhey Shyam, Santoshi, Sumer, Subhash and Leelya". She further claims that "she had tried to report with the police, but the police has refused to register a FIR. Therefore, she filed a criminal complaint before the court (Ex. P.1). Her daughter was recovered two months after the filing of the complaint. Due to the rape, her daughter had a girl". In her cross-examination she admits that "even after her daughter was recovered, the victim did not tell them anything. The daughter was recovered fifteen days after the filing of the criminal complaint". She claims that "Ramdeva and Radhey Shyam had produced her daughter before the Police Station". She further claims that "the victim was recovered from Copper". She admits that "the government had given her Rs. 50,000/-". She also admits that "after her daughter was recovered, she did not tell them anything". She also admits that "since she is illiterate she does not know as to what has been recorded by the police under Section 161 CrPC in her statement (Ex. P.1)". She also admitted that "the next day when they came home, the children in the family did not know as to who has taken her daughter away". She also admitted that "even after they were informed by Jaggaram, Kesri and Hanuman that their daughter was in the company of the accused persons, even then, they did not file a police report for ten to eleven days". She admitted that "she has given the ages of her children by guessing their age". She denied the fact that "the victim is 19 or 20 years old". She denied the fact that "she purposefully gave the age as 14 to 15 years".

A similar statement has also been given by Misrilal (P.W.11), father of the victim. Therefore, it is not being reproduced in this judgment.

Kesri (P.W.1), Hanuman (P.W.2), Jaggaram (P.W.18), the three persons who allegedly told the complainant that they had seen her daughter with the accused persons, have turned hostile during the trial and have not supported the case of the prosecution.

According to Dr. Kranti Kumari (P.W.22), she had examined the victim both for rape as well as for her age. According to this witness the victim was between the ages of 15 to 17 years when she was examined by her. She also claims that the victim was eight months pregnant as her pregnancy test was positive. She has proven the age and rape, the medical examination memo (Ex. P.33). In her cross-examination she has admitted that "there is a possibility of two to three years of difference of age as given by the doctors after looking at the radiologist''s report". According to this witness, "the victim could be 19 years old".

Although Chauth Mal (P.W.19) claims that he had taken two packets to the F.S.L., but the prosecution did not submit any F.S.L. report before the Trial Court.

Mr. Amit Singh Shekhawat, the learned counsel for the appellant had raised the following arguments before this court: firstly, the story narrated by the victim is an unbelievable one. According to her, she was tied up and taken away from her house; she was still tied up and gagged when she met Jaggaram, Kesri and Hanuman, therefore, she could not raise any hue and cry.

Secondly, the victim is a highly unreliable witness. For, during the trial she has disowned both her statement recorded under Section 161 CrPC, and her statement recorded before a Judl. Magistrate under Section 164 CrPC. Therefore, she has changed her position from the facts narrated in the police statement, to the facts narrated in her statement given under Section 164 CrPC. To the new facts invented in her testimony before the court. A vesilitating witness cannot be relied upon in order to convict the appellant.

Thirdly, the entire case against the present appellant is based on the sole testimony of the victim. However, as she is not a witness of sterling worth, the appellant cannot be convicted upon her testimony.

On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, and Mr. Ajay Gupta, the learned counsel for the complainant, have claimed that the victim has clearly stated that she was taken from her house by Subhash, Leelya and Sumer. Therefore, the learned Judge was justified in convicting the appellant for offence under Section 366 IPC.

Heard the learned counsel for the parties, perused the impugned judgment and examined the record.

A bare perusal of the testimony of the prosecutrix clearly reveals that she has narrated an unbelievable story. She would have the court believe that she was tied and gagged by the appellant and others when they took her from the house. She would also have the court believe that even when they met Hanuman, Kesri and Jagdish, she was still tied and gagged. Therefore, she could not raise her voice. In her long narration of facts, she does not even reveal as to when Sumer went out of the picture. Her only allegation against the appellant is that he along with others had taken her from her house, and they had divided the money when she was sold off to Santoshi. In the rest of her testimony she does not allege anything against the appellant. There is no corroboration of her testimony, viz-a-viz the appellant. But looking to the far fetched testimony given by her, this court is of the opinion that she is not a reliable witness.

Moreover, in her cross-examination she has resiled from her statement given under oath under Section 164 CrPC before the Magistrate. A witness who could resile from her statement given under oath, cannot be believed as the witness is vesilitating and has no respect for truth. To convict the appellant on the testimony of an ever changing witness would be an unjust step.

But for the testimony of the victim, there is no other evidence against the appellant. In fact there is no other evidence to show that the appellant abducted the victim from her house in order to compel her to marry himself, or any other person. Thus, the appellant''s conviction for offence under Section 366 IPC is unjustified.

For the reasons stated above, the appeal is, hereby, allowed. The impugned judgment dated 28.3.2011 is, hereby, set aside. The appellant is acquitted of the charge framed against him. The appellant, who is languishing in jail, shall be set at liberty forthwith, if not wanted in any other case.

Keeping, however, in view the provisions of Section 437-A Cr.P.C. the appellant, namely Sumer is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and a surety bond in the like amount, before the trial court. The bond so furnished shall be effective for a period of six months. The bond shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment, or on grant of the leave, the appellant, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.