Penal Code, 1860 – S. 376(2)(g) – Rape on the prosecutrix leaves a scare on her soul but a false accusation of rape on a man also may leave a scar on his whole personality.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon’ble Mrs. Ranjana Pandya,J.
CRIMINAL APPEAL No. – 2717 of 2011
Appellant :- Khalid & Another Vs. Respondent :- State Of U.P.
Counsel for Appellant :- Prashant K. Lal,Gaurav Kakkar,Mrs Swati Agrawal,Shams Uz Zaman
Counsel for Respondent :- Govt. Advocate
CRIMINAL APPEAL No. – 2758 of 2011
Appellant :- Ashfaq Vs. Respondent :- State Of U.P.
Counsel for Appellant :- Farid Ahmad Qureishi,Braham Singh,Shams Uz Zaman
Counsel for Respondent :- Govt. Advocate
1. Challenge in these appeals is to the judgment and order dated 26.04.2011, passed by Additional District & Sessions Judge, Court No. 10, Bijnor, in Sessions Trial No. 418 of 2008 (State vs. Khalid and others), arising out of Case Crime No. 88 of 1993, under Section 376(2)(g) I.P.C., Police Station Badhapura, District Bijnor, whereby the appellants Khalid, Sajid and Ashfaq were found guilty under Section 376(2)(g) I.P.C. and sentenced to undergo 10 years’ rigorous imprisonment along with fine of Rs. 5000/- each with default stipulation.
2. Filtering out unnecessary details, the prosecution case in brief is that an application was moved by the informant to the S.P., Bijnor stating that her daughter is a minor. Her husband had sown wheat in the fields of Abid on agreement to get half of the wheat. The wheat crop was standing in the field. The accused Kalloo, Khalid, Ashfaq and Sajid are miscreants, characterless, dangerous type of people who also keep illegal weapons with them. Towards the north of the aforesaid field, a room of the accused persons is also situated. On 14.04.1993, the husband of the informant had gone to Ludhiyna (Punjab) and the victim had gone to the jungle to bring grass. On the same day at about 05:00 P.M., the fields in which the husband of the informant had sown wheat, pigs had entered, at which the sister-in-law (Deorani) of the informant asked the victim to drive away the pigs from the field. When the victim was taking away the pigs towards the south, seeing the victim alone, the accused persons came from that room and Kalloo pressed the mouth of the victim, Khalid took out the knife in his hand, Ashfaq and Sajid picked up the victim and took up her in the eucalyptus fields of Istkammudin which was situated to the south of the field in which the husband of the informant had sown wheat. The victim was put down on the ground, Khalid had cut the tape of her Salwar with the knife, Kalloo gagged the mouth of the victim with cloth and raped her. Ashfaq and Sajid caught her hands due to which her bangles were broken. After that Ashfaq, Khalid and Sajid also raped her one by one. When the victim did not returned home for quite some time after driving away the animals, her aunt Ameena went to the spot searching for her and she shouted at which Shami, Abdul Rahim and Abdul Hamid also reached at the spot. The accused saw the witnesses coming at which they left their sleepers and knife and fled away. When the accused were fleeing, they threatened that if any action has taken against them, they would kill everybody. Ameena and other witnesses brought the victim home in an unconscious state. When the informant returned home, Ameena and the victim narrated her the whole incident. When the victim regained the consciousness, she was being taken by the informant to the police station. The brother-in-law (Devar) of the informant was also with her on the way. They met Abdul Malik, Shahid, Ali Hussain, Abdul Shami all the relatives of the accused and Juhurul Hasan, who said that they would paint the faces black of their relatives who are accused, made them sit on donkey and whatever fine would be imposed by the Panchayat would be paid by them. Further, he said that if the witnesses and the informant could not return back then they would be dealt with more badly and their corps would be set to fire. The informant got frightened and drew back her daughter. Next day, the informant sent her brother-in-law (Devar) to fetch her husband, who came back and went to the police station to lodge the report. The police took the knife in their possession but the report was not lodged, hence the informant has moved an application before the S.P., Bijnor, then the report was lodged.
3. On the basis of the written report, PW-7 is Rajendra Kumar Sharma, Chowki Incharge, scribed the chik which was proved by this witness as Exhibit Ka-7. This witness further proved the copy of G.D. as Exhibit Ka-8. The witness has stated that the victim and the complainant came to the police station on 19.04.1993. She also handed over her Salwar on which she claimed stains of blood and semen and handed it over to this witness which was seized by this witness in the presence of witnesses which was sealed and the seizure memo was prepared and proved as Exhibit Ka-9. On the same day, a pair of sleepers which was said to have left by the accused was seized in the presence of the witnesses. It was wrapped in a piece of cloth and sealed. The memo was prepared. The witnesses signed the memo which was proved by this witness as Exhibit Ka-10. The witness proved the clothes as material Exhibit-1, Salwar as material Exhibit-2 and the pairs of sleepers as material Exhibit-3.
4. PW-5 is Dhirendra Singh Yadav, who conducted the investigation in the matter. He copied the chik report in the case diary. He further copied the seizure memo in the case diary. He prepared the site plan on the pointing out of the informant and the victim, which was proved by this witness as Exhibit Ka-4. The medical report of the victim was copied in the case diary by this witness. Further, the witness recorded the statements of witnesses Abdul Rahim and Abdul Hamid etc. The accused were arrested, their statements were also recorded. The clothes of the victim was sent to the Forensic Lab for chemical analysis. The robkar was proved by this witness as Exhibit Ka-5. PW-6 is S.I. Raj Kumar, who proved the copy of G.D. as Exhibit Ka-6. Dr. Smt. Beenu Gupta is PW-4, who conducted the medical examination of the victim. She did not find any external or internal injury on the body of the victim. The vagina was admitting two fingers easily. The hymen was old torn. There was no swelling and bleeding from vagina. This witness proved the medical report as Exhibit Ka-2 and the radio logical report as Exhibit Ka-3.
5. The prosecution has examined as many as seven witness. PW-1 is the informant, who proved the written report as Exhibit Ka-1. PW-2 is the victim. PW-3 is Smt. Ameena, who is said to be an eye witness.
6. PW-4 is Dr. Smt. Beenu Gupta, PW-5 is Dihrendra Singh Yadav, PW-6 is Raj Kumar and PW-7 is Rajendra Kumar Sharma, whose evidences have earlier been discussed above.
7. After close of the prosecution evidence, the statements of the accused appellants have been recorded under Section 313 Cr.P.C. in which they denied the occurrence and have stated that they have been falsely implicated in this case due to enmity regarding land property. The accused Ashfaq has further stated that the informant and her family members used to throw garbage in his fields due to this enmity, they had been implicated.
8. The accused persons has examined DW-1 Bhoorey and DW-2 Shajeed Hussain in their defence.
9. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment.
10. Feeling aggrieved, the accused have come up in appeal.
11. Heard Sri Anil Kumar Srivastava and Mrs. Swati Agrawal, learned counsel for the appellants, learned Additional Government Advocate for the opposite party and perused the lower court record.
12. Learned counsel for the appellants has vehemently argued that there is delay in lodging the first information report, inasmuch as, the occurrence is said to have taken place at 14.04.1993 at 05:00 P.M., whereas, the report was lodged on 19.04.1993 at 16:00 hrs. The police station being 6 Kms. away from the place of occurrence. In this regard, in the first information report itself, it has been stated that when the victim regained her senses, she was taken by the informant to the police station to lodge the first information report. When the relatives of the accused met her, they threatened her, then she called her husband who came on 18.04.1992 and on 19.04.1993, the report was lodged. It appears that the date of going of the husband of the informant was wrongly typed as “18.04.1992”. The informant was examined by the court who has stated that after the occurrence, the accused threatened her, when she was going to the police station. She returned home due to their fear and did not do anything. Then she sent for her husband on 18.04.1993 to the police station but her report was not lodged, although the police personnel kept the Salwar, knife and sleepers with them. Next day, an application was moved to the S.P., then the report was registered. This statement of the informant does not find support from the documentary evidence, available on record because the recovery memo, as per seizure memo Exhibit Ka-9, the clothes of the victim was taken into the possession by the police on 19.04.1993 and the recovery memo bears the thumb impressions of the victim along with other witnesses. Similarly, a pair of sleepers was taken in the possession of the police on 19.04.1993. Seizure memo was prepared and the recovery memo is Exhibit Ka-1 which was also prepared on 19.04.1993. there is no reason why, police would keep the clothes and the sleepers handed over by the informant for no rhyme and reason besides as per the version of the informant, the knife was also taken to the police station which was taken by the police into custody but neither, the seizure memo of the knife are available nor there is any evidence on record to show that the knife was ever handed over to the police. If the husband of the informant had gone to the police station, there was no reason why the police did not lodge the report on the same day and if at all the reason was correct. The prosecution could have called for the copy of the G.D. to prove that the husband of the informant had gone to the police station but his report was not lodged.
13. In AIR 2000 Supreme Court page 1812, (State of Rajasthan vs. N. K. Accused), the Hon’ble Apex Court has laid down as under:-
“We may however state that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution. In State of Rajasthan Vs. Narayan AIR 1992 SC 2004 this Court observed True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police. In State of Punjab Vs. Gurmit Singh & Ors. (supra), this Court has held The Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family.”
14. Although, the Hon’ble Apex Court in 2005 Supreme Court Cases (Criminal) page 410, (Sri Narayan Shah vs. State), has held that mere delay in lodging the first information report is really of no consequence, if the reasons are explained.
15. In the present case, the husband of the informant had returned home on 18.04.1993 and although the report was not lodged by him on that day and the delay in lodging the first information report remained unexplained. Thus, it would definitely cause dent in the prosecution case.
16. As regards, the testimony of the prosecutrix is concerned, it has been said that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.
17. While discussing other aspects of the matter, the Hon’ble Apex Court has also laid down in 2010 Crl.L.J. Page 2061, (Abbas Ahmad Chaudhary vs. State of Assam), has observed as under:-
“We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully.”
18. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
19. But on the other hand in 2011 (2) JCC page 701, (State vs. Rahul), the High Court of Delhi has observed that the golden thread which runs through the web of 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. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
20. No doubt, rape on the prosecutrix leaves a scare on her soul but a false accusation of rape on a man also may leave a scar on his whole personality.
21. In the above back drop, the statement of the victim and the medical evidence has to be looked into. As far as the age of the victim is concerned, as per the medical report Exhibit Ka-3, the radio logical age of the victim was about 18 years. Since PW-1 informant was not an eye witness to the prosecution case, hence I would straightway come to the statement of the victim PW-2 and the eye witness PW-3 Ameena. As far as the incident is concerned, PW-2 in her examination-in-chief has corroborated the prosecution version. The victim has stated that her aunt (Chachi) came at that time when Sajid was raping her. But inspite of seeing her aunt coming to the spot, Sajid did not leave her. When her aunt hit her sleepers at him and removed him from above the victim. In her examination-in-chief Ameena, the aunt of the victim PW-3, has stated that when she reached at the spot Sajid was lying on top of the victim and was raping her. She has stated that when she assaulted Sajid with the sleepers, all the accused were present. They were having knives. Nobody assaulted her or caught her. The victim has further stated that her aunt and the witnesses came together on the spot. Trying to prove herself to be a minor, she has stated that at the time of occurrence, she was 13 years of age. This witness was subjected to the test of cross-examination, in which she has stated that when she went to drive away the animals, she took a lathi. When all the four caught her, she could not hit them with the lathi. She has further stated that she was raped by all for 4 to 5 minutes. Her clothes were torn. She has also admitted that her other aunt Mobeena had previously lodged a first information report of rape against Abrar, Fakhruddin and Shakeel but in that first information report, there was no trial.
22. As regards, coming back of the witnesses is concerned, PW-1 the informant has stated that Ameena PW-3 covered the victim with a cloth and brought her home while this averment is wanting in the statement of the victim and her aunt Ameena Pw-3. Further, the victim has stated that Kalloo pressed her mouth. Her further gagged her mouth with cloth. Corroborating this aspect, PW-3 Ameena has stated that Ashfaq accused has stuffed the cloth in the mouth of the victim and Kalloo and Khalid had caught the hands and feet of the victim. Besides the mouth of the victim was gagged with clothes, prior to her rape by Kalloo. Ameena PW-3 entered, when Sajid was allegedly raping the victim. How, she could see that Ashfaq stuffed the clothes in the mouth of the victim is a million dollar question which remained unanswered through out the trial. Thus, as far as, the factual aspect of the matter is concerned, the prosecution story is concocted, unreliable and improbable.
23. In the present case, since the prosecution story is not digestible and sought to seek corroboration from other factors, i.e. the medical evidence.
24. In (2007) 12 SCC page 57, (Radhu vs. State of Madhya Pradesh), the Hon’ble apex Court has held as under:-
“It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a ‘rape’, if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.”
25. No doubt, injuries on the person of the victim are not sine-quo-non for conviction for rape but in AIR 2000 Supreme Court page 1608 (Joseph S/o Kooveli Poulo vs. State of Kerala), the Hon’ble Apex Court has observed that if there had been any forcible sexual intercourse, the victim must have made some strong resistance and being a grown up lady and in the process some injuries would have been found on the vagina/private part of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on her body on this account.
26. I have not loose sight of the fact that even the victim of rape is put to fear of death, she may not raise resistance or struggle and in that process, she may not sustain injuries but in the case in hand, although the accused were said to be armed with knives but still Ameena PW-3 has specifically stated that
27. Even the victim PW-2 herself has stated that she was forcibly raped and beaten badly. Her whole back was abraded. she sustained injuries on her elbows. Her vagina was bleeding. She sustained lesion in her vagina. She sustained scratches on her face. She had signs of tearing on her whole body and all these injuries were shown to the doctor. Thus, this is not a case in which the victim and the eye witness have stated that there was a struggle for rape. Dr. Beenu Gupta PW-4 has stated that, she did not find any signs of sexual intercourse on the body of the victim and she did not also find any external injury on the body of the victim. No doubt, the occurrence is said to have been committed on 14.04.1993 and the victim was examined by the doctor on 19.04.1993, but in five days all the injuries has vanished and the lesion in the vagina would also disappeared, cannot be digested and accepted by this Court.
28. Thus, the evidence of prosecutrix and the eye witness Ameena is belied by the medical evidence which entitles the accused to acquit as as been held in (2006) 3 Supreme Court Cases (Cri.) page 373 (Yerumalla Latchaiah vs. State of A.P.).
29. Although in the forensic lab report the Salwar bore the spot of sperm and human semen, but that alone would not be sufficient to record a finding of the conviction against the accused.
30. Coming to the statement of the I.O. PW-5 Dhirendra Singh Yadav, who has stated that according to the medical evidence factum of rape was not proved. Rajendra Kumar Sharma, PW-7 has stated that the victim was handed over her sleepers which was taken in the possession by this witness and it was seized. The Salwar of the victim was produced before the court and this witness was put to the test of cross-examination, in which he has admitted that the cloth which was produced before the court was by no stretch of imagination in the shape of her Salwar. The cloth was about 10 to 12 inches which was cut from many places.
31. No doubt, when the forensic lab examines semen and blood on the garments of the victim, the part of the cloth is cut and examined, which contains spots of blood, semen or spermatozoa. But at least the cloth i.e. Salwar will remain in its original shape. In this particular case a 10 to 12 inches cloth cannot be termed to be a Salwar, hence this part of the prosecution case too, is not reliable.
32. PW-7 is Rajendra Kumar Sharma, who has also admitted that preparing the memo, sealing the property and interrogating the witnesses about the sealed property was the job of the Investigating Officer, but this witness wrongly did all the aforesaid acts as at that time he was unaware that he could not prepare the memo.
33. The accused persons have pleaded enmity with the family of the informant. DW-1 is Bhoorey, who has stated that his house is near the place of occurrence but there is nothing significant in the statement of this witness. DW-2 is Shahid Hasan, who has stated that Bundu is husband of the informant, his cousin is Abid on whose land Bundu used to do work of agriculture. Due to mutual agreement, on 15.02.1993, DW-2 and his brother Sajid, the accused and Mazahid took this property. Sajid removed possession of Bundu and he took possession due to which Bundu and his family members were inimical with the accused Sajid.
34. In cross-examination, this witness has admitted that he moved an application to lodge the proceedings under Section 107 and 116 Cr.P.C. and the accused Shahid is his real brother.
35. Now an again, I have been laying a lot of trust on the point that the judges conducting the trial do not bother to either mark the documents as Exhibits nor they bother to refer the documents filed by the defence in judgment. As law permits the public documents filed by the defence should be marked as Kha-1, Kha-2 etc. while proving the documents would require too. In the present case, the defence filed as many as 13 documents, vide list 78 Kha, four documents vide list 88 Kha but the trial judge did not even bother to either mark the public documents therein as Exhibits or to refer them in his judgment. He could have either relied or disbelieved the documents. Thus, he should have referred the evidence of both the parties which he failed to do so. Out of the documents filed vide list 78 Kha, document nos. 1, 3 and 6 are public documents. Paper No. 2 of list 88 Kha is a public document which is copy of the charge sheet against Kilua, Shamim and Shami.
36. Thus, on the basis of what has been said and discussed above, the appeal is liable to be allowed.
37. Accordingly the appeal is allowed.
38. The order of conviction and sentence dated 26.04.2011, passed by Additional District & Sessions Judge, Court No. 10, Bijnor, in Sessions Trial No. 418 of 2008 (State vs. Khalid and others), arising out of Case Crime No. 88 of 1993, under Section 376(2)(g) I.P.C., Police Station Badhapura, District Bijnor, as against the present appellants, is hereby set aside.
39. The appellants namely Khalid, Sajid and Ashfaq are in jail. They shall be released forthwith in this case. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.
40. Let certified copy of this judgment be sent to the court concerned.