Tokey and Others vs State of U.P.

Ranjana Pandya, J.—This appeal has been preferred against judgement dated 5.2.2010 passed by Additional Sessions Judge, Court No. 3, Kanpur Dehat in S.T. No. 439 of 2010 Crime No. 118 of 2010, under Sections 376 I.P.C., Police Station-Derapur, Kanpur Dehat, whereby the accused Tokey and Brij Kishore were found guilty under Section 376 I.P.C. and each were sentenced to 10 years rigorous imprisonment coupled with Rs. 5,000/- fine with default stipulation.

Facts as stated in brief according to the prosecution case and the F.I.R. are that an application was moved under Section 156(3) Cr.P.C., which was ordered to be registered as an F.I.R. on 21.6.2010. In the application it was stated that the daughter of the informant Kumari Nisha aged about 17 years had gone to attend the call of nature on 24.5.2010 near her house at 3 O''clock in the day time. When she was returning after attending the call of nature accused Tokey and Brij Kishore, who was standing on the way pulled the victim inside the house of Tokey. Tokey bolted the house from the outside. Brij Kishore pointed country made pistol at her and raped her. When the victim was being caught, she raised alarm, which was heard by the informant, but he could not understand the incident at that time. But when he heard the shrieks of his daughter, he climbed on his roof and went to the roof of Tokey. He heard the weeping sound of his daughter, at this point of time the informant raised hue and cry, at which Chandan and Ram Bai came. All the three reached in the courtyard of Tokey in the meanwhile Tokey had opened the latch from outside at which Brij Kishore escaped after raping the victim. The victim was weeping. The informant took his daughter and went to the police station to lodge the report, but report was not lodged. The accused were tried to be apprehended, but they could not be apprehended. The family members of the accused said that they would marry the victim to their son. At this the victim was not medically examined. But Brij Kishore''s father did not marry him to the victim, hence report was lodged.

Investigation was entrusted to the I.O. Data Ram, which was later on transferred to S.I. Shiv Prakash Sonkar P.W. 6. He examined the statements recorded by the previous Investigator as I.O. He also recorded the statement of witness Krishna Pal and tried to apprehend the accused on 3.7.2010. He perused the injury report of the victim and copied it in the Case Diary. The accused could not be apprehended on 6.7.2010 and 7.7.2010. On 5.7.2010 the statement of the victim was recorded under Section 164 Cr.P.C., which was copied in the Case Diary. Finally, on 17.10.2010 charge-sheet was submitted against the accused, which was proved by this witness as Exhibit Ka-8. This witness further recorded the statements and submitted charge-sheet against the other accused and proved it as Exhibit Ka-9. He further inspected the place of occurrence, prepared the site plan and proved it as Exhibit Ka-10.

The prosecution examined as many as six witnesses. P.W. 1 is Ram Khilawan-Informant and father of the victim, P.W. 2 is victim Kumari Nisha, P.W. 3 is witness Ram Babu, who is said to have seen the accused Brij Kishore fleeing away. P.W. 4 is Dr. Archana Srivastava, who examined the victim and proved the injury report as Exhibit Ka-3. Supplementary report as Exhibit Ka-4 and X-ray report as Exhibit Ka-5. P.W. 5 is constable 806 Mahesh Prasad Dubey, who prepared the chick report and proved it as Exhibit Ka-6. He scribed G.D. and proved it as Exhibit Ka-7.

The statement of the accused persons were recorded under Section 313 Cr.P.C., who denied the occurrence. Accused Tokey said that he had been falsely implicated, whereas accused Brij Kishore stated that he is in Government job, the father of the victim wanted to marry the victim to him, but he refused, hence he was falsely implicated. No defence was adduced.

After perusal of the record and hearing counsel for the parties the learned trial court returned the finding of guilt against the accused persons as aforesaid. Feeling aggrieved, the accused persons have come up in appeal.

I have heard the learned counsel for the parties.

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 appellants has submitted that there is inordinate delay in filing the F.I.R. inasmuch as the occurrence is said to have taken place on 24.5.2010 at 3 O''clock in the day time, whereas report was lodged after a lapse of about one month on 21.6.2010 at 13:00 hrs. The place of occurrence being 3 kms. away from the police station. As said earlier, the case was registered by means of an application under Section 156(3) Cr.P.C. As regards the delay P.W. 1 Ram Khelawan has stated that after occurrence the family members of Brij Kishore and Tokey assured him that they all belong to one caste, hence they would get the victim married and requested the informant not to lodge any report. He has stated that this assurance was given in the shape of writing, which was available with this witness, but this witness did not file that compromise, if any, arrived at between the parties. Withholding of this compromise compels the Court to draw adverse inference against the informant. He has stated that he did not lodge the report because of this compromise and this is cause of delay. As said earlier that non filing of compromise, if any, goes adverse to the prosecution case. P.W. 2 is Kumari Nisha, victim who has also stated that she returned home immediately after the occurrence. The incident was narrated by her to her father and brother in the village. A Panchayat was held in the village, in which it was settled that the accused Brij Kishore would marry the victim. Later on Brij Kishore and his family members backed out from the compromise, due to which she had washed her clothes and told the complete occurrence to her father. This explanation is not very reasonable and plausible, but it can be taken to be a ground for not lodging the F.I.R., since the reputation of family can be said to be at stake.

As far as occurrence is concerned P.W. 1 Ram Khelawan, father of the victim has stated that Brij Kishore dragged the victim to the house of Tokey and Tokey bolted the door from outside, whereas the Brij Kishore raped his daughter on the point of country made pistol. He has further said that when he heard the shrieks of his daughter then he accompanied by his son went to his roof from where they went to the roof of Tokey, where he heard the weeping of his daughter. At this his son entered into the house of Tokey, at which Tokey opened the bolt of the house and Brij Kishore fled away. In cross-examination, he has stated that he did not see rape being committed, but this witness and his daughter both have admitted that the accused Brij Kishore is serving in the Border Security Force. He has admitted that the application under Section 156(3) Cr.P.C. was drafted by an Advocate. In the examination-in-chief both this witness and his daughter P.W. 2 Kumari Nisha have stated that since a compromise arrived at between the parties, hence they did not lodge the report, but contradicting himself and his daughter Kumari Nisha, this witness has stated that immediately after the occurrence, he went to the police station, but in the next breath, he said that on the next day he went to the police station, but his report was not lodged. He wanted to marry his daughter to Brij Kishore, but on his refusal he got the report lodged. The remaining cross-examination of this witness was recorded on the next date, when he said that on the second page of the stamp, he did not mention about the factum of rape.

On perusal of the application under Section 156(3) Cr.P.C. it states that it has been mentioned that when the accused caught his daughter, she shouted, but he could not understand from where the shrieks was coming. He has stated in his statement that this averment mentioned in the application under Section 156(3) Cr.P.C. is incorrect. Futher clarifying he has stated that he only heard the voice of his daughter once, on which his son went to the house of Tokey via roof alone. Whereas in examination-in-chief he has said that on hearing shrieks of his daughter he and his son went to the roof, whereas his son Chandan dropped himself in the house of Tokey. In cross-examination while contradicting himself he has stated that bolt was opened by the villagers, whereas in examination-in-chief he has stated that bolt was unbolted by Tokey. Another glaring contradiction which goes to strike at the root of the case is that developing a new theory, this witness has said that when the latch of Tokey''s house was opened, his wife Sheela Devi went to the house of Tokey and brought the victim to her house.

He has stated that the clothes of Kumari Nisha, the victim were not torn, but she had injuries all over the body, she had excoriation on her neck. He had also shown the injuries to the I.O. and the Doctor which were visible.

He has said that he was running pillar to post for continuous three months to the house of Brij Kishore to persuade him to marry his daughter, but he did not agree. He also collected the villagers to build pressure, but nothing was done. Hence S.O. advised him to lodge the report and on this he lodged the report. The time between the incident and lodging of the report is about one month, hence it appears that even prior to the incident this witness was trying to persuade the accused Brij Kishore to marry his daughter and on his refusal the case was got registered because admittedly three months had not elapsed from the date of occurrence to the date of lodging of the report. Hence, there is no question of this witness trying to persuade the accused Brij Kishore to marry his daughter for three months after the incident as report was lodged in one month of the occurrence.

The evidence of Kumari Nisha, P.W. 2 victim being the star witness of the prosecution is very important, who has stated that when she was raped as soon as she got the opportunity, she raised hue and cry at which her father and brother Chandan came on the roof at which Tokey opened the latch of the outer door. Her father and brother came and took her to their house. When this witness was inside the house, obviously she was not in a position to know as to who opened the latch, whether it was Tokey the villagers or any other person.

The whole prosecution story has fallen down like a heap of cards. In the cross-examination, this witness P.W. 2 Kumari Nisha stated that she had left her studies 8 to 9 years before and she had gone to school at the age of 6 to 7 years. Her statement was recorded on 9.7.2012. Thus, according to her own statement, she was major at the time of incident. Even as per medical report which is Exhibit Ka-4, the radiological age of the victim was opined to be more than 18 years. Hence, as per evidence on record, the victim was 18 years at the time of occurrence. There being a margin of two years either side, as far as the radiological age is concerned.

Prosecutrix Nisha P.W. 2 has stated in her cross-examination that initially she wanted to marry to Brij Kishore, when a proposal to this effect was sent to Brij Kishore''s family members, they refused. On which Brij Kishore was tried to pressurize by the villagers, but he refused. Three months after that her father lodged a report, obviously this statement of the victim or her father seems that the proposal was sent to the accused Brij Kishore much prior to the alleged date of incident. She has gone to the extent of saying that even after lodging of the report, accused persons did not agree to the marriage. Further in cross-examination, this witness has stated that her report was scribed on the date of occurrence. Police had come on the date of occurrence, who had met her father. Police had also seen the place of incident and had enquired about the same. Her statement was recorded by the I.O. after the date of incident. She was never interrogated by the I.O. after the date of incident. This is against the prosecution case, because the report was never lodged on the date of the incident, but it was lodged about a month thereafter. She has said that only her father and brother brought her back home from the house of Tokey and no one else brought her back, whereas her father has stated that her mother brought her back from Tokey''s house. Further, this witness has said that when she was raped, she shouted loudly, at which only her father came to the house of Tokey. Her injuries were visible, which were also shown to Doctor.

Reference to the statement of the Doctor is very important here, inasmuch as P.W. 4 Dr. Smt. Archana has specifically stated that the age of the victim was above 18 years. There were no marks of injury on any part of the body of the victim and there were no marks of excoriation on the body of the victim, nor she had any contusion. The medical report Exhibit Ka-3 is absolutely against the statement of the victim, inasmuch as no mark of injury was present on her private part of the body and no external mark of injury was noticed on the body of the victim.

In cross-examination the victim has further stated that her statement was recorded by the Magistrate. She has stated that Brij Kishore had torn her Kurta and Samiz. He had also torn her Salwar and taken off her underwear. She has also stated that she sustained internal injuries. It has come in the evidence of the victim that Tokey is the cousin of Brij Kishore. She has also stated that since the accused had torn her clothes, she became naked and came back home after wearing her father''s pant and shirt. This is absolutely a new case taken by the victim.

Coming to the statement of the victim recorded under Section 164 Cr.P.C. which can only be used for corroboration, it states that Brij Kishore had pointed out a country made pistol on her and raped her, nowhere this factum finds place in the statement recorded before the Court.

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 @ 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, .

The prosecutrix has stated in her statement under Section 164 Cr.P.C. that she was raped on the point out of country made pistol, whereas this factor is wanting in the statement of the victim recorded before the court. Thus, the statement of the prosecutrix is shaky, unreliable and unworthy of credit. The court needs corroboration and as far as corroboration is concerned her statement is neither corroborated by her previous statement under Section 164 Cr.P.C. nor by any other evidence available on record. Hence, I conclude that the prosecution has miserably failed to prove its case beyond reasonable doubt and the trial court committed grave illegality in convicting the accused. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 5.2.2010 passed by Additional Sessions Judge, Court No. 3, Kanpur Dehat in S.T. No. 439 of 2010 Crime No. 118 of 2010, under Sections 376 I.P.C., Police Station-Derapur, Kanpur Dehat, is hereby set aside.

Accordingly, the appeal is allowed.

The accused appellant No. 1 namely Tokey is on bail. His bail bonds are cancelled. He need not surrender. Accused-appellant No. 2 Brij Kishore is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.