Suraj Mal vs State of U.P.

Ranjana Pandya, J.—1. Challenge in this appeal is to the judgment and order dated 12.11.2014 passed by Chawan Prakash, Additional Sessions Judge, Court No. 4, Sultanpur in S.T. No. 112 of 2012 (State Vs. Suraj Mal) arising out of crime No. 363, 366 and 376 I.P.C., Police Station Rampur, District-Saharanpur whereby the accused Suraj Mal was found guilty under Sections 363, 366 and 376 I.P.C. and was sentenced five years imprisonment under Section 365 I.P.C. and Rs. 1000/-fine, five years imprisonment under Section 366 I.P.C. and Rs. 1000/- fine and was sentenced to seven years rigorous imprisonment and fine of Rs. 2000/- under Section 376 I.P.C. with default stipulation.

Filtering out unnecessary details, the prosecution case in brief is that the victim herself lodged a written report before the Station Officer stating that she belonged to village Jankheda, Police Station-Rampur, District-Saharanpur. The accused Suraj Mal belonged to the same village who called her on the pretext that her mother was sick at Saharanpur. He took her by Car and she was kept wandering about in the Car the whole night with the accused who raped her many times. The victim requested the accused to take her to her mother, but he kept roaming with her and raped her all night on 29.9.2011.

On the next day i.e. on 30.9.2011 at 8:30 a.m. the accused left the victim between village Sikheda and Jankheda, thus the victim reached her house. Investigation of the matter was entrusted to S.I. Ravindra Singh. The case was registered in the presence of this witness. He recorded the statement of constable clerk Arvind Kumar and the victim. The clothes of the victim was called for, but she refused to give her clothes on the pretext that she did not have other clothes to wear.

On 2.10.2011, the statement of the father of the victim was recorded in the case diary. Her mother was not at the house. When again she was asked to hand over the clothes, she said that the clothes were kept in a box, which was locked and keys was with her mother. The place of incident was pointed out by the victim, which was inspected by the I.O., who prepared the site plan and proved it as Exhibit Ka-8.

Further, the I.O. has also inspected the place, where the victim was left after being raped. The site plan of this place was also prepared and proved as Exhibit Ka-8. The medical report of the victim was obtained, which was copied in the case diary. The statement of Usha, mother of the victim was recorded and the clothes of the victim were taken by the police. Recovery memo was prepared, which was proved by this witness as Exhibit Ka-2. Recovery memo was copied in the case diary and the victim was sent to the court for recording of the statement under Section 164 Cr.P.C.

After receipt of the medical report and supplementary report, the statement of Mayawati and Phoolmati were recorded. On 12.10.2011 the statement of Gurmeet was recorded. On the same day the statement of Village Pradhan Vijay Pal @ Brijesh was recorded. On 13.10.2011, the statement of the accused was recorded in jail. The Indica Car used in the incident was found at the resident of the accused. A recovery memo was prepared of the same, which was proved by this witness as Exhibit Ka-4. Statement of the witnesses of the recovery memo was prepared. The site plan of the place of recovery of the victim was prepared and proved as Exhibit Ka-10. Finally investigation of the cased ended into charge-sheet against the accused, which was proved as Exhibit Ka-11 by this witness.

The prosecution examined P.W. 1 victim, who proved the written report as Exhibit Ka-1. She also proved the recovery memo by which her clothes were taken into possession and sealed, as Exhibit Ka-2.

P.W. 2 is Madan Singh, who is said to be a witness of the previous conduct of the accused, who is said to have proved a written compromise entered as Exhibit Ka-3. This witness also proved recovery of Indica Car as Exhibit Ka-4. P.W. 3 is Dr. Surendra Singh, who conducted ossification test of the victim, and proved the x-ray report as Exhibit Ka-5 and x-ray plate as material 1 and 2.

P.W. 4 is Dr. Madhu Saxena, who medically examined the victim, did not find any marks of injury on the body of the victim. This witness proved the medical report as Exhibit Ka-6 and the supplementary report as Exhibit Ka-7. The evidence of P.W. 5 S.I. Ravindra Singh has already been discussed by me.

P.W. 6 is constable Arvind Kumar, who has proved the chick report as Exhibit Ka-2 and copy of the G.D. as Exhibit Ka-12 and 13. The forensic lab report is on record. After examining these six witnesses the prosecution closed its evidence. The statement of the accused was recorded under Section 313 Cr.P.C., who denied the occurrence and stated that the factum of rape is not corroborated by medical evidence. The accused further did not adduce any defence evidence.

After hearing counsel for the parties, learned lower court find the accused guilty and sentence him as has been specified in Para 1 of the judgement.

Feeling aggrieved, the accused has come in appeal.

I have heard the learned counsel for the parties and perused the trial court record.

Learned counsel for the appellant has submitted that the prosecutrix is major and she was a consenting party. The medical evidence and the ocular evidence do not support each other, hence the judgment is liable to be set aside.

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.

Learned counsel for the appellant has submitted that there is inordinate delay in lodging the F.I.R. inasmuch as as per the chick report Exhibit Ka-12, the occurrence took place from 29.9.2011 to 30.9.2011 till 11:30 a.m., whereas report was lodged on 1.10.2011 at 9:15 a.m. The distance of the police station from the place of occurrence being 8 kms. As far as delay is concerned written report Exhibit 1 is silent as to why, when the victim had reached her house on 30.9.2011 in the afternoon, what prevented her from lodging the report for about 22 hours, especially when the victim had not taken any case that the reputation of her family was at stake, or that she being an unmarried lady was hesitant in lodging the report. The statement of this victim can be looked into to find, whether the delay has been explained or not. In the examination-in-chief she has not said anything about the delay. Thus, there is no explanation of delay in lodging the F.I.R. Thus, the delay in lodging the F.I.R. is fetal for the prosecution inasmuch as a delayed F.I.R. may give rise to false implication and embellishment.

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 no 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 vs. 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. vs. State of Maharashtra, , (1999) 1 SCC 220.

As far as age of the victim is concerned, admittedly she is above 18 years of age. The medical report Exhibit Ka-7 states that the victim is 18 years of age. The victim herself in the statement recorded on 11.5.2012 has stated her age to be 21 and a half years. Thus, it is not disputed that the victim was above 18 years at the time of incident. No doubt the F.I.R. is not a substantive piece of evidence and it can only be used for corroboration of contradicting the maker thereto. Even the statement of the victim under Section 164 Cr.P.C., which has not been proved by the victim could only have been a previous statement of the victim. Thus, coming to the evidence P.W. 1 is the star witness of the prosecution case on whom the whole prosecution case rests.

A simple reading of the F.I.R. gives an impression that the accused went to the school of the victim at 11:30 a.m. on 29.9.2011, and on the pretext that her mother was admitted in Saharanpur Hospital, took the victim with him. This factum is written in the F.I.R. by the victim, who is herself P.W. 1, but is not supported by the statement of the victim, who has stated that on 29.9.2011, when she was returning from school, then the accused took her in a Car. She sat with the accused as he was of her father''s age.

In cross-examination this witness has stated that she had mentioned that her school was over at 11:30 a.m. and her last two periods were free periods. When this witness as questioned about the direction of the main gate of her school, she stated that she was ignorant about the directions, but in further cross-examination, she has stated all the direction of the roads showing how she has shown ignorance. She has also admitted that she did not mention that the accused was residing opposite her house in the written report. She has also admitted that she did not write in her report that the accused called her from school, how it was mentioned in the report, this could not be explained by this witness who herself scribed the F.I.R.

The victim has tried to clarify that when she was returning home from school, the accused was standing there with his Car, who misrepresented her and took her in his Car. She has admitted that before going with the accused she did not inform her brother or any other person in the school. According to the F.I.R. which has been written by the victim herself that she was left back by the accused at 8:30 a.m. When she went straight to her house, where she met her mother and brother, but her mother did not ask her anything as to where she had stayed overnight. In Indian culture, if an unmarried young girl is out from the house for the whole night, it is strange why a responsible mother would fail to ask her daughter as to where she was for the whole night. Although this witness has stated that she herself told her mother what had happened to her.

Another glaring feature to turn the victim as an unreliable witness is that in the written report a mobile No. 9759770214 has been mentioned. The victim has specifically stated in cross-examination that her father did not have any mobile phone and she too did not have any mobile phone. Further clarifying she has stated that nobody in her house had a mobile phone. Although mobile number has been mentioned in the written report, but she has gone to the extent of saying that:

It is a mystery as to how a mobile number of the accused was known to the victim or her family members who only were present with her, when the report was lodged. It appears that mobile number of the accused was mentioned in the F.I.R. just to ensure earliest arrest of the accused, which was definitely known to the victim she being a consenting party.

As far as occurrence is concerned, according to the victim P.W. 1 whole night the accused kept the victim with him in the Car and was travelling with her here and there and she was being raped. The veracity of a truthful witness can very well be tested by cross-examination, but this witness being the victim could not sustain the test of cross-examination and her whole version fell down like a heap of cards, inasmuch as in cross-examination she has stated that when she came out of the school and had walked five paces, she met Suraj Mai. He had parked his Car on the opposite side. The accused told the victim that her mother was sick and admitted in the hospital, hence she accompanied him being of her father''s age.

Another fanciful story has been developed by the victim by saying that a handkerchief was thrown on her face, due to which she was became unconscious. When she gained consciousness she in the Car. When the victim had voluntarily sat in the Car, there was absolutely no occasion for the accused to put a handkerchief on her face to make her unconscious. She has stated that she had told the Magistrate about the handkerchief being put on her face, but if it is wanting in her statement she could not assign any reason clarifying this point. The victim has stated that when she gained consciousness it was about noon. Her clothes were in order, but has stated that the accused had torn her all clothes and she was raped for 20 minutes, after she gained her conscious, she was raped three to four times till 8/8:30 a.m. She was raped inside the Car throughout the night, she remained in the Car in the jungle. She has further stated during night also she was raped when the Car was made to stand at one place. She bleeded, when she was raped, and all her clothes were blood stained.

It cannot be understood that, if the accused was driving the Car simultaneously how could he rape the victim and if as per version of the victim, she was raped inside the Car, there is no reason why she did not sustain any injury as a result of struggle, inasmuch as the prosecutrix has not taken a case that she was threatened or the accused was carrying any weapon. The story set forth by the victim is absolutely improbable and incorrect itself inasmuch as the document regarding recovery of clothes of the victim is Exhibit Ka-2. It has been mentioned in Exhibit Ka-2 that the Kurta, Salwar and Dupatta of the victim were blood stained, taken in possession. The Kurta, which was blue was torn from the front. But the Doctor was cautious enough in the matter inasmuch as according to the medical report Exhibit Ka-6, shows that the victim was medically examined on 1.10.2011 at 1:30 p.m., she gave a statement to the Doctor that she had not taken bath after the incident and had not changed her clothes, but the Doctor did not find the clothes stained and had specifically mentioned this fact in the medical report as Exhibit Ka-6.

The Doctor has also specified that the victim was in school uniform, which was white and blue. Thus, the statement as depicted by the victim appears to be concocted and a made up story. Although, the witness was recovered on 1.10.2011 and her mother accompanied her to the police station, but the clothes were withheld when the I.O. visited the house of the victim stating that the clothes were kept in lock and the key was with the mother, who was not at home. This shows the manner in which things have been managed by the victim.

The victim has further stated that the whole night the accused remained in the Car with her and kept raping her, it is a very improbable story. Further, she has stated that she sustained injury in her thumb, but this is not corroborated by the medical evidence. Although, she has stated that she had shown the swelling to the Doctor at the time of her medical examination.

As regards carrying of the clothes, she has stated that she told the Magistrate, that her Salwar was torn into two pieces, but I am afraid this statement is falsified by the medical report and the recovery memo.

As regards the return of the victim as per written report the accused left her on 3.9.2011 at 8:30 between village Sikheda and Jankheda and went home. In the statement before the court in cross-examination in chief the victim P.W. 1 has stated that the accused left her on the next day near the Pulia of village Sikheda.

On the contrary, P.W. 2 Madan Singh, the father of the victim has stated that when the victim came home, she told him that she was raped the previous night also and on the next day the accused dropped her out of the car near village Sikheda. This statement of the father of the victim P.W. Madan Singh is admissible under Section 6 of the Indian Evidence Act. Since, it proves those facts, which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place of at different times and places. Thus, as per the victim, the accused left her at that particular place after raping her on the next day, whereas according to P.W. 2 Madan Singh, she was dropped out of the car. But there were no injuries as a result of struggle nor as result of dropping from the car.

In the present case what was stated by her to her father Madan P.W. 2 immediately after the occurrence is a relevant fact. Thus, both the victim and her father have contradicted each other, as far as the factum of leaving the girl on the road is concerned. The victim P.W. 1 has admitted that the accused is a married man with five children. She has also admitted that her father and Brijesh Pradhan have political rivalry. She has also admitted that the accused has a grocery shop in the village, but she has stated that she used to make cash payments for the purchase from the shop of the accused.

P.W. 2 Madan Lal has admitted his strained relations with the accused. The prosecution has tried to put forth the alleged previous bad character of the accused by means of Exhibit Ka-3, which is a compromise arrived at between one Binno Devi and Suraj Mai.

Perusal of the documents shows that the father of the victim P.W. 2 was a party to this document when he was Gaon Pradhan, although previous bad character of the accused would not be relevant. More so, in this case neither Binno Dvi has came forward nor this document was put to the accused when his statement was recorded under Section 313 Cr.P.C.

P.W. 2 Madan Lal has stated that accused Suraj Mai took his daughter on the pretext that her mother was ill, when the girl did not come back he talked to Gaon Pradhan Brijesh, who in turn conversed with the accused, who stated the victim was with him and he would return her within an hour or two, but he did not return whole night. If this was the state of affairs there was no reason for this witness did not to lodge the F.I.R.

This witness P.W. 2 Madan Lal has said that the incident relating to Binno Devi took place 10 years ago and that occurrence was witnessed by this witness alone. Trying to assail the character of the accused, P.W. 2 Madan Lal has stated that the accused is a criminal by nature. He has also stated that he being a father did not help the daughter in lodging the report, but the report was written by the victim in confidence at home. Although, the Indica Car said to have been used in the occurrence is recovered, but it has not been connected nor the victim was made to identify the same. Thus, the whole prosecution story appears to be a bundle of lies and in my opinion, since the victim and her father P.W. 2 Madan Lal are interested partition and unreliable witness they cannot be relied upon.

In my opinion, since she is an interested partition 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 the appellant guilty. As pointed out above, she had changed her version from time to time and, therefore, cannot be relied upon. This she seems to have done to rectify her mistake committed by damsel under infatuation, which is in far to perceive. Her hymen was found to be torn and healed with insertion of two fingers easily, which can be taken to be a prima facie evidence, on preponderance of possibility that the victim was used to carnal intercourse.

Thus, the court has been left with the sole testimony of the prosecutrix, which is unreliable, untrustworthy and unworthy of credence. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged. 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 12.11.2014 passed by Chawan Prakash, Additional Sessions Judge, Court No. 4, Sultanpur in S.T. No. 112 of 2012 (State Vs. Suraj Mai) arising out of crime No. 363, 366 and 376 I.P.C., Police Station Rampur, District-Saharanpur, 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.

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