Tosif And Another vs State

Santosh Rai, J

Heard Shri Ajay Kumar Mishra, learned counsel for the appellant and Shri Vibhav Anand Singh, learned AGA for the State.

The present appeal is preferred under Section 374 of Cr.P.C. by the accused-appellants Tosif (died) and Badullah to set aside the judgment and order dated 17.10.1988 passed by 5th Additional Sessions Judge, Meerut in Sessions Trial No.383 of 1984 under Section 376 IPC, Police Station- Kithore, District- Meerut, whereby both the appellants were convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for a period of seven years.

Tersely, the prosecution case, in brief, is that on 21.06.1984 at about 2:00 P.M., the accused Tosif and Badulla, residents of Village Shahjahanpur, P.S.- Kithore, District- Meerut, allegedly came to an orchard situated within the limits of the said village and committed rape upon Smt. Rajendri, wife of Suraj Aheri. It is further alleged that the accused persons robbed one hansali, one pair of khandwe, and silver payjeb belonging to the complainant, and upon her resistance, assaulted her and threatened her with dire consequences in case she reported the incident. Thereafter, the complainant went to the police station along with her father-in-law, but her report was not lodged. Subsequently, on 22.06.1984, she submitted a written complaint to the S.S.P., Meerut, upon which an order for investigation was passed. After investigation, S.I. Lal Singh Harit submitted charge-sheet against the accused Tosif and Badulla (Ext. Ka. 5).

The 5th Additional Sessions Judge, Meerut, after perusal of the case diary and other relevant papers, framed the charge against the accused-appellants under Section 376 IPC on 02.07.1986. The prosecution examined Smt. Rajendri, the complainant as P.W.-1, Km. Suresh as P.W.-2, H.C. Rajendra Singh as P.W.-3, S.I. Lal Singh Harit as P.W.-4 and Dr. Vidhu Lata Tiwari as P.W.-5. Accused persons produced no defence witness.

P.W.-1, Rajendri (the complainant), duly proved the written complaint (Ext. Ka-1). P.W.-3, H.C. Rajendra Singh proved the chik report (Ext. Ka-2) and the copy of the General Diary No.32 (Ext. Ka-3). The Investigating Officer, P.W.-4 S.I. Lal Singh Harit, proved the site plan (Ext. Ka-4) and the chargesheet (Ext. Ka-5) and P.W.-5 Dr. Vidhu Lata Tiwari proved the medical report (Ext. Ka-6).

The accused-appellants were examined under Section 313 Cr.P.C., wherein they denied the prosecution allegations and further stated that they have been falsely implicated in this case due to previous rivalry.

P.W.-1 Smt. Rajendri stated briefly that about four years prior to her deposition, at about 2:00 P.M., she was alone in the orchard situated on Shahjahanpur-Dhalwala Road as her husband and father-in-law had gone to Moradabad for selling fruits. Accused Tosif and Badulla came there and committed rape upon her one after another. Meanwhile, her mother-in-law and sister-in-law arrived at the spot, upon which the accused persons fled away after robbing her Hansli, Khandwa and Payjeb and also extended threats of dire consequences. She informed her husband and father-in-law about the occurrence on their return. She further stated that though, she went to the police station, her report was not lodged, whereafter she approached the S.S.P., Meerut by submitting an application. She was medically examined and her statement was recorded by the Investigating Officer.

P.W.-2 Km. Suresh stated briefly that about four years prior, at about 2:00 P.M., when her father and brother had gone out in connection with selling fruits, she along with her mother went to the orchard where her Bhabhi Smt. Rajendri was present. On reaching there, she heard noise and saw accused Tosif committing rape upon Smt. Rajendri, while accused Badulla was also present nearby. On their raising alarm, the accused persons fled away carrying the Payjeb, Khandwa and Hansli of Smt. Rajendri.

P.W.-3 Head Constable Rajendra Singh stated briefly that on 23.06.1984 he was posted as Head Moharrir at Police Station Kithore. He received an application of Smt. Rajendri forwarded by the S.S.P., Meerut with directions to register the case. On the basis of the said application, he registered the case at Crime No. 187 and prepared the chik F.I.R. in his handwriting and signature, which was marked as Ext. Ka-2. He also prepared the General Diary entry, marked as Ext. Ka-3.

P.W.-4 S.I. Lal Singh stated briefly that he investigated the case, recorded the statements of witnesses, inspected the place of occurrence and prepared the site plan Ext. Ka-4. On the basis of statements of witnesses, he converted the case under Sections 376/506 I.P.C. He received the medical report on 26.06.1984 and arrested accused Badulla on 27.06.1984. After completion of investigation, he submitted the charge-sheet Ext. Ka-5 against the accused persons.

P.W.-5 Dr. Vidhu Lata Tiwari, Medical Officer, Women Hospital, Meerut, stated briefly that on 26.06.1984, she medically examined Smt. Rajendri wife of Suraj. On examination, she found her teeth 15Ã-15, height about 5 feet and weight about 90 pounds. Breasts, axillary hair and pubic hair were well developed. On vaginal examination, old healed tears were present in the hymen and the vagina admitted two fingers easily. No internal or external injury was found on any part of the body. Vaginal smear was taken for examination and X-ray of wrist, knee and elbow joints was advised. In her opinion, the victim was habituated to sexual intercourse and no definite opinion regarding rape could be given.

In brief the grounds of appeal are that the conviction and sentence awarded to the appellants are against the weight of evidence on record, and upon a proper appreciation of the evidence available on record, the appellants are entitled to acquittal. In any case, the sentence awarded is too severe.

Learned counsel for the appellant submits that the allegation against the accused-appellant committing rape along with the co-accused Tosif, who has already died during the pendency of the present appeal, is not reliable. He further submits that the FIR was lodged at belated stage and no plausible explanation for the delay was furnished by the prosecution. As per the allegations contained in the FIR, the accused-appellant Badulla and co-accused Tauseef committed the offences of loot and outraged the modesty of the victim/informant, Rajendri. Accordingly, the first information report was registered under Sections 354, 394 and 506 IPC, whereas the charge-sheet was ultimately submitted under Section 376 IPC. Thus, according to the learned counsel, the Investigating Officer found no reliable material or evidence regarding the commission of loot or intimidation causing death to the victim and her family members.

It is further submitted that the statement of the victim under Section 164 Cr.P.C. was not recorded before the concerned Magistrate. Furthermore, there are material contradictions and improvements in the statements of the victim. The Investigating Officer also committed gross illegality and material irregularity during the course of investigation. The medical report does not corroborate the version of the victim, who was examined as PW-1 before the trial court. During medical examination, no external or internal injuries were found on the person of the victim, which creates a reasonable doubt regarding the prosecution case that the accused-appellants Badulla and Tauseef committed rape upon the victim and looted certain ornaments from her possession. The Investigating Officer neither recovered nor collected the alleged looted ornaments mentioned in the FIR. It is, therefore, submitted that due to previous enmity and on the basis of irrelevant material, the charge-sheet was filed before the trial court. The trial court also failed to consider the material contradictions in the statements of the victim and other prosecution witnesses, and consequently held the accused-appellants Badulla and Tauseef guilty under Section 376 IPC merely on the basis of conjectures and surmises.

Learned AGA vehemently opposed the submissions advanced by the learned counsel for the appellant and contended that the accused-appellants were involved in the commission of rape upon the victim. Admittedly, the statement under Section 164 Cr.P.C. was not recorded before the Magistrate, however, the same is merely an omission and the prosecution case cannot be doubted on this sole ground. It is further submitted that the prosecution case cannot be discarded merely because minor contradictions exist in the statements of the prosecution witnesses. Where witnesses are examined after a long lapse of time, minor discrepancies may naturally occur due to human error.

In light of the submissions advanced by the learned counsel for the appellant and the learned AGA, we have perused the material evidence available on record and have also perused the judgment and order passed by the learned trial court dated 17.10.1988.

A typed written tehrir (Ex. Ka-1) was submitted before the S.S.P., Meerut, on 22.08.1984. The said tehrir was submitted by the victim, Rajenderi, herself, and the first information report (Ex. Ka-2) was registered on the basis of the said written tehrir. Both the formal papers were proved by the informant (PW-1) and the formal witness (PW-3). In the tehrir and the first information report, there is no allegation of rape against the accused-appellants. The allegations, as mentioned in the tehrir and the first information report, are that the accused persons, Tosif and Badulla, committed 'insult' and further looted the 'silver ornaments' of the victim. On the basis of the said allegations, the first information report was registered under Sections 354, 394 and 506 IPC at Police Station-Kithore, District- Meerut. However, in Column No. 3 of the FIR, Section 506 IPC is missing, and only Sections 354 and 394 IPC have been mentioned therein. The FIR was lodged on 23.06.1984, i.e., after two days of the alleged incident.

In the FIR, no specific allegation has been made regarding causing injuries by the accused-appellants. After registration of the FIR, the site plan was prepared by the Investigating Officer, who was further examined before the trial court. In the site plan, two witnesses, namely the mother-in-law and sister-in-law of the victim Rajenderi, have been shown at sign 'B', which is situated at a short distance from sign 'A'. Sign 'A' has been shown as the place of occurrence, which indicates that the mother-in-law and sister-in-law of the victim were also present near the spot i.e., in the same orchard. The time of the incident is alleged to be about 2:00 p.m. Though, victim, in her statement before the trial court at page no. 4, stated that about 10 to 20 persons, including her brother-in-law and others, were present near the place of occurrence but according to her statement, only the mother-in-law and sister-in-law rushed towards the spot when one of the accused, Tosif, was clinging to the victim. After seeing the witnesses, namely the mother-in-law and sister-in-law of the victim, the accused persons fled away from the spot. In the statement of the victim, it has nowhere been stated that the accused-appellant, Badulla, was clinging to or committing rape upon the victim when her mother-in-law and sister-in-law reached the place of occurrence. As per the broad version of the prosecution story, one of the accused, Tosif, was committing rape upon the victim when the witnesses rushed towards the place of occurrence, whereupon the accused persons fled away, whereas the witnesses were also present near the place of ocurrence, in the same orchard. Out of the two witnesses, only one witness, namely PW-2 Kumari Suresh, who is the sister-in-law of the victim, was examined by the prosecution. She stated in her deposition that she was not familiar with the accused-appellants. She further stated that the names of the accused-appellants were disclosed to her by some other person, which clearly indicates that the statement of PW-2 is based upon information received from another person. Thus, her testimony falls within the category of 'hearsay evidence', which is neither reliable nor admissible in evidence.

In the tehrir and first information report, it has also been alleged that the accused-appellants looted silver ornaments from the possession of the victim. The victim, PW-1 Rajendri, has also stated that the accused-appellants committed rape upon her and also snatched her silver ornaments and fled away. However, the Investigating Officer, PW-4, who was examined before the trial court, stated that the alleged looted items were not recovered from the possession of the accused persons and that all the said items were found lying near the place of occurrence. That is why no recovery memo, etc., was prepared with regard to the alleged looted articles. Admittedly, the accused-appellant Badulla was arrested soon after the incident and, as per the memo, no incriminating article was recovered from his possession, whereas the recovery memo has not been formally proved before the trial court in accordance with law, a copy thereof is available on the record, and the said fact has been clearly mentioned in G.D. No. 24/18:50 hours dated 26.06.1984. It has also been clearly mentioned therein that no incriminating article was recovered from the possession of the accused-appellant, Badulla. Thus, as per the recovery memo, the date of arrest/recovery has been mentioned as 26.06.1984, whereas the Investigating Officer has stated in his deposition that the accused-appellant was arrested on 27.06.1984. The same appears to be a material contradiction in the statement of the Investigating Officer and the preparation of the recovery memo.

In the FIR, no specific allegation has been made regarding causing injuries by the accused-appellants. The victim, who has been examined as PW-1 before the trial court, stated in her deposition that the accused-appellants caused injuries to her and also looted her silver ornaments. She further stated in her deposition before the trial court, at page no. 4, that the accused-appellants caused injuries to her, due to which she became unconscious. She further stated that the accused-appellant had bitten her on the cheek and had stuffed a cloth into her mouth. However, PW-5 Dr. Vidhu, who was examined as an expert witness, stated that no external or internal injury was found on the body of the victim. She proved the injury report (Ext. Ka-6). It has been clearly mentioned in the injury report that "hymen torn old healed tears present. Vagina admits two fingers easily. There is no internal or external injury seen on any part of the body. In my opinion, she is used to sexual intercourse, so no opinion about rape can be given". Admittedly, the injury report was prepared on 26.06.1984, and no external or internal injuries were noted by the doctor. Thus, the statement of the victim that the two accused persons had assaulted her and bitten her on the cheek and caused injuries is not corroborated by the medical evidence available on record. Consequently, there exists a material contradiction between the statement of the victim and the medical evidence.

PW-1 is the victim as well as the main witness of the alleged incident. In her examination-in-chief, she stated that she was previously acquainted with the accused-appellants and that they had committed rape upon her. However, during the course of cross-examination, she stated that she was not acquainted with the accused-appellants earlier. She further stated that she had seen the accused-appellants for the 'first time' at the place of occurrence, therefore, identification of accused persons on the spot by the victim is also appears to be doubtful. Admittedly, the victim alleged that the accused-appellants had looted her ornaments, however, the said allegation has not been corroborated by the statement of the Investigating Officer. No incriminating/looted article was said to be recovered from the possession of the accused-appellant.

The injuries alleged in the present case as stated by the victim is not reliable. Admittedly, the injuries alleged to have been caused by the accused-appellants upon the victim are not corroborated by the relevant medical evidence available on record. That appears to be the reason why the Investigating Officer exonerated the offence under Section 394 IPC or Section 323/324 IPC.

Admittedly, the place of occurrence is an open place, namely an orchard. In the North and East direction of the place of occurrence, the orchards of Khurshid Alam and Hafeez respectively are clearly shown, whereas in the southern direction, field of sugercane of Sahid Akhtar is shown. The victim has stated in her deposition that about 10 to 20 persons were present near the place of occurrence, however, none of them rushed towards the spot. She further stated that 'the accused-appellants had stuffed a cloth into her mouth, due to which she was unable to speak. She also stated that, owing to fear of the accused-appellants, she did not raise any alarm. However, she again stated that when she raised an alarm, upon hearing the hue and cry, her mother-in-law and sister-in-law reached the spot'. Thus, the victim has made contradictory statements in her deposition in this regard.

So far as the allegation regarding commission of rape is concerned, no specific statement or averment in that regard is available in the FIR or the tehrir whereas the FIR was registered by the victim herself. In her statement before the trial court, the victim stated that the accused-appellants had committed rape upon her and had inserted their private part into her private. Admittedly, no statement of the victim under Section 164 Cr.P.C. was recorded during the course of investigation. It is also a material omission on the part of the Investigating Officer that the statement of the victim under Section 164 Cr.P.C. was not recorded, and no plausible explanation in this regard has been furnished by the prosecution. Meaning thereby, for the first time before the trial court, the victim stated that the accused-appellants had committed rape upon her.

In the case of Tahsildar Singh and Another vs. State of U.P., AIR 1959 SC 1012, the Apex Court has held that only those omissions in the statement of a prosecution witness made before the police can be used for the purpose of contradiction, which by necessary implication may be deemed to have been included in the expressly recorded statement. No other omissions can be permitted to be used as contradictions. The omissions must be in regard to the important features of the incident in the statement made before the police. Thus, every omission does not amount to a contradiction unless such omission vitally touches the very factum required to be proved by the prosecution. In the case at hand, the prosecutrix herself registered the FIR before the police station and did not level any allegation against the accused-appellant regarding the commission of rape with her, but simply alleged commission of 'insult'. Further, the FIR was registered after three days of the incident. In view of the above, it appears that the same is nothing but a material 'improvement' and it vitally creates doubt upon the statement of prosecutrix recorded before the trial court.

On the facts and circumstances of the case, and in view of the submissions and statements of the victim before the trial court, it clearly appears the material contradictions and improvements in the statements of prosecution witnesses.

In the case of Shivaji Sahabrao Bobade and Another vs. State of Maharashtra, (1973) 2 SCC 793, the Apex Court has held as under:

"6. Even at this stage we may remind ourselves of necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author has sapiently observed, goes nauch beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.... In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago."

In the case of The State of Punjab vs. Jagir Singh, Baljit Singh and Karam, (1974) 3 SCC 277, the Apex Court has held as under:

"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question which he is charged. Crime is an event in real life and is the product of as to whether the accused arraigned at the trial is guilty of the crime with interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."

In the case of Yogesh Singh vs. Mahabeer Singh and Others, (2017) 11 SCC 195, the Apex Court has held as under:

"15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J. in State of U.P. v. Krishna Gopal, (1988) 4 SCC 302:

"25...... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

The concept of probability, and the degrees of it, cannot obviously g be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice."

Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram v. State of H.P., (1973) 2 SCC 808, State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, Chandrappa v. State of Karnataka, (2007) 4 SCC 415, Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain v. State of Assam, (2015) 11 SCC 242)"

Admittedly, the victim was not previously acquainted with the accused-appellants, which clearly indicates that she had seen the accused-appellants for the first time at the place of occurrence. How the victim identified the accused-appellants is not clear from the evidence available on record. It appears that she made statements regarding the identification and involvement of the accused-appellants on the basis of information or suggestions given by others. PW-2 also stated in her deposition that she was not familiar with the accused-appellants earlier. Admittedly, about 10 to 20 independent persons were present near the place of occurrence, however, no independent and reliable witness has been examined by the prosecution to substantiate the allegation of rape against the accused-appellants. PW-2 is an interested witness, and her deposition is based upon 'hearsay' evidence. Though PW-1 is the victim of the case, material contradictions and improvements are available in her testimony regarding the causing of injuries, commission of loot, commission of rape, raising of alarm, identification of the accused-appellants on spot, and her prior unfamiliarity with the accused-appellants, etc.

Thus, under the totality of the facts and circumstances of the case and evidence available on the record, it appears that the learned trial court did not properly exercise judicial discretion while appreciating the evidence available on record. The learned trial court has ignored the material contradictions, improvements and omissions appearing in the statements of the prosecution witnesses, including the victim. It appears that the trial court has held the accused-appellants guilty merely on the basis of conjectures and surmises. Thus, the impugned judgement and order passed by the trial court suffers from illegality and is liable to be set aside.

Thus, in view of the above observations, the appeal is allowed. The impugned judgement and order dated 17.10.1988 passed by 5th Additional Sessions Judge, Meerut whereby the appellant has been convicted and sentenced as above, is hereby set aside. The appellant is acquitted of the charges levelled against him.

The appellant is on bail. He need not surrender. The bail bonds and sureties furnished earlier during trial/appeal shall stand discharged.

Office is directed to send the trial court record back to the court concerned within 15 days from today.