Sunil Tiwari vs State of U.P.

Ranjana Pandya, J.—Heard Sri Shashi Prakash Mishra, learned counsel for the appellant and learned A.G.A.

This appeal has been preferred against the judgment dated 20.11.2013 passed by Additional Sessions Judge, Sant Kabir Nagar, in S.T. No. 113 of 2011, registered as Case Crime No. 847 of 2011, under Sections 324 , 376 I.P.C., Police Station Bakhira, District Sant Kabir Nagar, whereby the accused Sunil Tiwari was found guilty under Sections 324 , 376 I.P.C. and was sentenced to two years R.I. Under Section 324 I.P.C. ans seven years R.I. Coupled with Rs. 5000/- as fine under Section 376 I.P.C. with default stipulation. Half of the amount of fine was ordered to be paid to the victim.

The prosecution story in brief is that a written report was lodged by Kamlawati, mother of the victim stating that on 09.06.2011, her daughter Suman aged about 14 years was returning home after purchasing kerosene oil from the reserve quota shop. As soon as, she reached near the house of Om Prakash, near the bush, suddenly Sunil Tieari, son of Om Prakash Tiwari came and dragged her daughter in a lonely place near the bushes. When the victim resisted, she was injured with a knife. The victim was dropped on the ground and she was raped. When the victim did not return in time to her house, the informant went to trace her. On the way, near the bushes, she heard the shrieks sound of her daughter. She went near and saw that the accused Sunil Tiwari was raping her daughter. On seeking the informant, he fled away. The informant is living alone with her mother-in-law and her husband is doing the work of labourer at Bombay. Her daughter was lying unconscious due to the trauma of the occurrence. Then she lodged the report.

On the basis of this report, Constable Clerk Awadhesh Kumar PW-5 scribed the chick report and proved it at Exhibit Ka-4. The details of the report were entered in the G.D. which was proved by this witness as Exhibit Ka-5. Initially the investigation was entrusted to S.I. Hari Singh, PW-8 who copied the first information report and the G.D. in the case diary. He seized the ''salwar'' of the victim and prepared a memo and proved it as Exhibit Ka-3. The victim was sent for medical examination. After that the accused was arrested and his statement was recorded. The medical report was copied in the case diary and the victim was sent for recording the statement under Section 164 Cr.P.C. The statement of the victim was finally recorded on 18.06.2011 which was copied by the I.O. on 19.06.2011. After that, this witness inspected the spot and prepared site plan and proved it as Exhibit Ka-9. Thereafter this witness was transferred due to which the investigation was taken up by PW-7 S.O. Rudal Yadav. The witness sent the clothes of the victim to the forensic lab for examination and submitted charge sheet against the accused and proved it as Exhibit Ka-8.

The prosecution examined as many as nine witnesses. PW-1 is Kamlawati who is informant and mother of the victim who proved her written report as Exhibit Ka-1. PW-2 is victim Suman. PW-3 is Dr. Ram Bhagat Gaur who examined the injuries on the persons of the victim and proved the injury report as Exhibit Ka-2. PW-4 is Chandrabhan who is witness of seizure of the clothes who proved the seizure memo as Exhibit Ka-3. PW-5 is constable Awadhesh Kumar. PW-6 is Dr. Raksha Rani who internally examined the victim and proved her report as Exhibit Ka-6. She also proved radio logical report as Exhibit Ka-7. PW-7 is S.O. Rudal Yadav, PW-8 is S.P. Hari Singh whose evidence has earlier been discussed. PW-9 is Dr. Dharmendra Kumar, E.N.T. Surgeon who has adduced secondary evidence and proved the report as Exhibit Ka-10. The forensic lab report is Exhibit Ka-11.

The accused was examined under Section 313 Cr.P.C., who stated that he was falsely implicated due to election of Pradhani. He was a witness in the case (State v. Zakzak) against the witness Chandrabhan, PW-4, hence he has been falsely implicated.

The accused produced Om Prakash, D.W. -1 in defence who has stated that the accused was present at the time of occurrence in the rice meal, hatching rice. A copy of the persons who contested the election has also been filed by the accused.

After hearing the counsel for the parties and perusing the record, learned lower court returned the finding of guilt as aforesaid against which this appeal has been preferred.

The following points have been raised during the course of argument:--

"� The first information report is delayed, hence there are chances of the false implication.

� The medical and the ocular evidence do not support each other and the evidence adduced by the prosecution is not reliable, hence, the conviction of the appellant is bad in the eyes of law.

On the other hand 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.

(i) The first information report is delayed, hence there are chances of the false implication:--

Perusal of the chick report Exhibit Ka-4 shows that the occurrence is said to have been committed on 09.06.2011 at 04:00 P.M., whereas, the report of the alleged incident was lodged on the next day i.e. 10.06.2011 at about 08:35 P.M. The distance of the place of occurrence from the police station being 16 Kms. The first information report is silent on the point of delay. The only thing which has been mentioned in the first information report is that the informant is living alone with her mother-in-law and her husband is living at Bombay to earn livelihood and her daughter was lying unconscious. Now it has to been seen what PW-1 informant has stated in her statement. PW-1 Kamlawati has stated that it was late on the day of occurrence, hence, due to fear, she could not go to the police station, besides, after the incident her daughter become unconscious and was lying in the house under the same state, hence, informant stayed till her daughter felt a little better then she went to the police station and lodged the report. PW-2 victim Kumari Suman has only stated that her mother lodged the report. If the statement of this witness be taken on its face value, then there is no explanation coming forth from the side of prosecution as to how the informant in spite of being feared, reached the police station at 08:35 P.M. in the night on the next day. She could very well have lodged the report during the day time. Thus, the time taken in lodging the first information report and the reasons described for the delay, raises a shadow of doubt on the prosecution case as such apprehension of false implication of the accused cannot be completely ruled out.

(ii) The medical and the ocular evidence do not support each other and the evidence adduced by the prosecution is not reliable, hence, the conviction of the appellant is bad in the eyes of law:--

Counsel for the appellant has submitted that the evidence of prosecutrix is not reliable. Her evidence when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.

Generally, 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 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 @ Undrya Vs. State of Maharashtra, .

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 and Others Vs. State of Maharashtra, .

PW-1 Kamlawati is the informant and mother of the victim. She has stated that as soon as her daughter reached near the house of the accused, near the bushes, the accused pulled her in a lonely place and raped her. When her daughter tried to oppose, the accused attacked her with the knife. She has further stated that when she went to find her daughter, she saw Sunil Tiwary lying above her daughter who was forcibly raping her. Sunil Tiwari ran away after seeing her. She has further stated that she witnessed the occurrence with her eyes. Her daughter became unconscious, but in cross-examination, this witness has stated that she reached the place of occurrence about 10 to 15 minutes after the occurrence. She has further stated that she conveyed her husband about this occurrence but he did not do any pairvi in the case. She has further stated that she does not know anything about the house of Om Prakash Tiwari, whereas in the examination-in-chief, she has stated that when her daughter reached near the house of Sunil Tiwari son of Om Prakash Tiwari, the occurrence took place. Further contradicting herself, she has stated that he knows the accused from quite some time. Further in cross-examination, this witness has stated that when she reached near the bushes, the accused fled away and her daughter was lying unconscious. It appears that again, this witness in order to give weight to her statement again said that the accused was lying on her daughter and she herself saw it. She has further stated that her daughter become conscious after an hour of the incident. When she saw the incident, she did not raise any hue and cry, nor called for any assistance. This conduct of a mother who is seeing her daughter being raped, is unnatural. Although, she has stated that she saw the occurrence from ten paces. Victim PW-2 Suman who has stated that after she was dragged to the bushes, she opposed rape and when the accused tried to open her ''salwar'', she opposed, the accused attacked her with a knife on her hand due to which her hand started bleeding. Further, she has stated that, as soon as, her mother came, the accused fled away and her mother had seen the accused committing rape on her. In cross-examination, she has stated that while the accused had dragged her the cane of kerosene oil did not fall down. When her mother reached 2 to 3 minutes after the occurrence, she was unconscious. This statement of the prosecutrix shatters the whole prosecution story. She has further stated that the knife was recovered at the police station. The accused had handed over the knife in her presence but there is no such recovery on record. Even the I.O. has denied of having recovered any knife. In cross-examination, she has stated that in snatching and dragging, the kerosene oil splited and she woke on her own accord, although, she was unconscious.

PW-2, the victim has stated that her ''salwar'' was taken off from her body and was kept aside, whereas, Chandrabhan PW-4 has stated that the ''salwar'' was taken in his presence which was worn by the victim. He has further stated that the victim was called upon to take of her ''salwar'' and the recovery memo was prepared on the third day of the occurrence. The recovery memo of the ''salwar'' is Exhibit Ka-3 which is said to have been prepared on 11.06.2011. There is no reason why the I.O. would take the victim to the place of occurrence and there compel her to take off her ''salwar''. Where this recovery memo was prepared is not clear from the recovery memo. As far as the evidence of Chandrabhan PW-4 is concerned, he has stated that the father of the victim has neither come to the spot nor he gave evidence. He has admitted that, at the time of his statement, he did not remember the name of his son-in-law. This answer is very strange and cannot be believed. Enmity of this witness with the accused is established by the admission of this witness himself who has stated that at the time of occurrence, he was village Pradhan. Hanumaan Tiwari being brother of the accused contested the election against this witness in which the informant had supported this witness. He has further stated that in the matter of Gazai, Om Prakash Tiwari father of the accused aided the police, thus, this witness had ample reason to depose against the accused. Thus, evidence of PW-1 Kamlawati, PW-2 Suman and PW-4 Chandrabhan are shaky and unworthy of credit.

Perusal of the statement of PW-3 Dr. Ram Bhagat Gaur shows that a reddish incised wound of 2.5 cm. x 0.7 cm was found on the dorsal aspect of the right elbow region. PW-6 is Dr. Raksha Rani who did not find any external or internal injury on the body of the victim. This witness has stated that hymen of the girl was ruptured. It was old and torn. Thus, the court is left with the shaky, contradictory evidence of the mother and daughter and a reddish incised wound but this mark of injury by itself is not sufficient to establish rape or hurt, if the evidence of the prosecutrix and her mother is otherwise found to be not trustworthy.

PW-8 S.I. Hari Singh in cross-examination has stated that he took the ''salwar'' of the victim in his possession at the place of occurrence. This reference has been made in the recovery memo which is Exhibit Ka-3. According to which the tape of ''salwar'' was intact, whereas, PW-2, the victim has stated that the tape of her ''salwar'' was broken. Exhibit Ka-11 is the Forensic Lab Report and according to which bleeding was found on the ''salwar'' of the victim.

Thus, the whole prosecution story, as far as, it relates to rape falls down like a heap of cards. As far as, the age of the victim is concerned, according to the medical report Exhibit Ka-10, the doctor opined her age to be 16 years. There can be variation of two years by either side, as far as the radio logical age is concerned."

The defence has examined D.W. -1 Om Prakash who has stated that the accused was present in his rice mill. He has further stated that Hanumaan Tiwari brother of the accused contested election against Chandrabhan. This is proving enmity between Chandrabhan, PW-4 and the accused. Witness Chandrabhan has further stated that the victim was married after the occurrence.

On what has been said and discussed above, I conclude that the prosecution has miserably failed to prove the case against the accused person and charges levelled against him beyond reasonable doubt, as such, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence, the impugned judgment of conviction and sentence dated 20.11.2013 passed by Additional Sessions Judge, Sant Kabir Nagar, in S.T. No. 113 of 2011, registered as Case Crime No. 847 of 2011, under Sections 324 , 376 I.P.C., Police Station Bakhira, District Sant Kabir Nagaris 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.

Let a copy of this order be sent to the C.J.M. concerned for compliance.