Victim of Rape; Kishor Vs. State of U.P. [Allahabad High Court, 31-05-2016]

Victim of Rape; Kishor Vs. State of U.P. [Allahabad High Court, 31-05-2016]

Penal Code, 1860 – S. 376 – Rape – Reliability of the statement of victim – Prosecutrix has been changing her version again and again which makes her testimony unreliable and unworthy of credence. Thus the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellant and the appeal is liable to be allowed.


CRIMINAL APPEAL No. – 3018 of 2015

Appellant :- Kishor Respondent :- State Of U.P. Counsel for Appellant :- Salman Ahmad Counsel for Respondent :- Govt.Advocate

Hon’ble Mrs. Ranjana Pandya,J.

1. This appeal has been preferred against the conviction and sentence passed against the order dated 30.06.2015, passed by Additional Sessions Judge / F.T.C., Jalaun at Orai, in S.T. No. 113 of 2012 (State vs. Kishor), arising out of Case Crime No. 52 of 2012, under Sections 323, 504, 506,376 I.P.C. and S.T. No. 124 of 2012 (State vs. Nripati), arising out of Case Crime No. 52 of 2012, under Sections 323, 504, 506 I.P.C., Police Station Kotra, District Jalaun, whereby the accused Kishor was found guilty and sentenced to 10 years’ rigorous imprisonment and fine of Rs. 3000/-, under Section 376 I.P.C.; 1 year rigorous imprisonment along with fine of Rs. 5000/- under Section 504 I.P.C and 7 years’ rigorous imprisonment along with fine of Rs. 2000/- under Section 506 I.P.C. with default stipulation, whereas accused Kiran and Nripati were acquitted for the charges framed against them.

2. Filtering out the unnecessary details, the prosecution case in brief is that an application under Section 156(3) Cr.P.C. was moved before the C.J.M., Orai, which was directed to be registered as a criminal case and investigation was ordered. As per the application i.e. Exhibit Ka-1, the elder daughter of the informant was married in village Barsaar, Police Station Kotra, District Jalaun to Nripati son of Chaturbhuj. Three months prior to 26.07.2011, the brother-in-law (Devar) of Kiran came on motorcycle to the house of the informant and told that Kiran was seriously sick and the victim was called by her. The informant sent his 16 years’ old daughter with Kishor. After that 4-5 times, the informant went to the house of his daughter but Kishor, Chaturbhuj and Ramwati did not let him meet with his daughter and did not make him to see his elder daughter too. On 10.05.2011, the informant along with Pappu Chamar, the wife of the informant Munni and Gokul went to Barsaar. At this Kishor, Chaturbhuj, Ramwati, Nirpati and Kiran told that the victim had eloped from their house. The informant and his companions heard the sound of weeping of the victim, at this, they entered the house of the accused and found the victim locked in a room. When she was taken out, the accused persons started to assault the informant and his companions. The matter was complained to the Police Station Mandichowki. Out of shyness, on that date, the victim did not told anything to anybody that she had been forcibly detained and locked in a room for 3 months and was continuously raped by Kishor for 3 months. Kishor threatened to kill the victim and also threatened to set her to fire. Whenever, she tried to raise alarm, she was shown country made pistol. The informant sent the information about complete incident by registered post to the S.P. He also himself appeared before the S.S.P., Orai, who directed the police personnel of Police Station, Kotra to look into the matter. On 17.05.2011, when the informant along with his daughter and other companions reached the Police Station, Kotra, he was told that the case would be registered and the accused persons would be arrested on the next day. The informant received a telephone call stating that he should bring the victim to the police station and the accused had been arrested. On 19.05.2011 at 10:00 A.M., the informant along with his wife, victim and many other people went to the police station. The incharge of the police station pressurized the informant to compromise the matter. The informant and his companions were badly beaten and the caste relating abusive words was also uttered and he was forced to sign the compromise written by his son-in-law Nripati. The police personnel forcible put the thumb impressions of the mother of the victim namely Munni on the compromise letter. The victim and the informant were also forced to put their signatures on the compromise letter and they were threatened that if they would proceed with the matter then many cases would be slapped on them. There were many political leaders leading to the BJP and Congress who were sitting in the police station. Nripati was saying that he had influenced over the Kotra police. At this the informant sent a registered application to S.P., Jalaun, Orai on 01.06.2011 but no action was taken into the matter. Hence, the application under Section 156(3) Cr.P.C. was moved.

3. Dr. Sunita is PW-3, who conducted the medical examination on the victim. She did not find any external or internal injury on the body of the victim. She proved the medical report as Exhibit Ka-3. Smear slides were prepared for pathological examination and the victim was sent for age determination test on which supplementary report was produced. This witness proved the supplementary report as Exhibit Ka-4. Constable Clerk Rakesh Pratap Singh, PW-4, prepared the chik report. He proved the chik report as Exhibit Ka-5. Further, this witness scribed the G.D., whose copy was proved by this witness as Exhibit Ka-6. The investigation was entrusted to A.K. Singh, S.I. On 07.02.2012. He inspected the spot on 09.02.2012. He recorded the statements of Munni Devi, the victim, witness Rinku Singh and Radha. On 10.02.2012, he recorded the statement of lady Constable Shabnam, Alka Dwivedi, copied the medical report in the case diary. He further recorded the statements of doctor and Pinki. On 14.02.2012, the statement of all the accused persons were recorded. Thereafter, the investigation was transferred to Brijraj Singh. This witness proved the charge sheet submitted against all the accused-persons as Exhibits Ka-7 and Ka-8. Further, this witness proved the site plan prepared by him and proved it as Exhibits Ka-9 and Ka-10.

4. Besides these witnesses, the prosecution also proceeded to examine Babu PW-1, who is the informant, who proved the application submitted under Section 156(3) Cr.P.C. as Exhibit Ka-1. PW-2 is the victim, who proved her statement recorded under Section 164 Cr.P.C. as Exhibit Ka-2. PW-5 is Munni Devi, who is the mother of the victim and wife of the informant. She has stated about the occurrence as to how she went to the house of the accused to bring back her daughter. After examining as many as six witnesses, the prosecution has closed its evidence.

5. The statement of the accused persons were recorded under Section 313 Cr.P.C., in which all the accused persons denied the occurrence. Further, the accused appellant, in question, Kishor has stated that there was dispute between his sister-in-law and her father (informant) regarding jewellery, hence he also had been falsely implicated. However, no evidence in defence was adduced.

6. 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.

7. Feeling aggrieved, the accused has come up in appeal.

8. Heard Sri Salman Ahmad, learned counsel for the appellants, learned Additional Government Advocate for the opposite party and perused the lower court record.

# Delay in lodging the first information report

9. Counsel for the appellant has vehemently submitted that there is an inordinate delay in lodging the first information report, which would be fatal for the prosecution case. He has specifically stated that no date has been mentioned as to when the victim was taken away and since when the accused started raping her. No doubt, delay in lodging the first information report would not be a ground to discard the whole prosecution case but by and large, if there is an inordinate delay, the prosecution has to explain the delay and if the delay is explained then it would not be fatal for the prosecution case.

10. Perusal of the record shows that there is no date on what date the victim was enticed away and from which date the act of rape was started. As far as the delay is concerned, in the first information report Exhibit Ka-1, which has been proved by PW-1 Babu, father of the victim, it has been stated that the accused took away the victim on the ground that her sister was ill. Now as per first information report, on 17.05.2011, he went to the Police Station Kotra. Again on 19.05.2011, he went to the police station, where he was ill treated and he and all his companions were beaten by the police. Further, he has stated that on 01.06.2011, he moved an application to the S.P. But none of the aforesaid applications are on record. Withholding all the copies of such applications, compels the court to draw adverse inference against the prosecution.

11. The informant has stated that he moved a written application but his report was not lodged. Even the victim has stated that she went to the police station to lodge the report but her report was not lodged. The same version was stated by the mother of the victim namely PW-5 Munni Devi but neither copies of such applications has been brought on record by the witnesses nor copes of any report has been summoned to substantiate this averment that prior to moving of an application under Section 156(3) Cr.P.C., any application was moved at the police station or to any superior police officer. Even, the concerned relevant G.D. was not got summoned from the police station.

12. Be it clearly stated here that delay in lodging FIR in cases under Section 376 I.P.C. would depend upon facts and circumstances of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station, but the same was not done. This action really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere in the scene. It is the mother who was required to inform the police about missing of her grown-up daughter. In the absence of any explanation, it gives rise to a sense of doubt. Thus, delay in lodging the first information report is fatal for the prosecution case.

# Reliability of the statement of victim

13. Perusal of the application moved under Section 156(3) Cr.P.C. was addressed to the C.J.M., Orai, Jalaun. It was addressed and signed by an Advocate and the accused Kishor, Nripati, Smt. Ramawati and Kiran were made the accused in the case. It has to be borne in mind that Kiran is the daughter of the informant, Nripati is the son-in-law of the informant and Kishor and Ramawati are the relatives of Nripati.

14. In cases of rape, the statement of the prosecutrix should be given due importance. In

# 2010 Cr.L.J. 2060, Abbas Ahmad Chaudhary vs. State of Assam

the Hon’ble Apex Court has observed that 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.

15. In

# Munna vs. State of M.P., 2015 (1) SCC (Cri) 59

the Hon’ble Apex Court has held that if the statement of the victim has inherent infirmities, creating doubt about its veracity, same may not be acted upon and the statutory presumption under Section 114A of the Evidence Act should not be drawn in such cases.

16. In

# Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, 1983 3 SCC 2017

the Hon’ble Apex Court has laid down as under:-

“Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because:

(1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.

(2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours.

(3) She would have to brave the whole world.

(4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.

(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.

(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself.

(7) The fear of being taunted by others will always haunt her.

(8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo.

(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy.

(10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour.

(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence.

(12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.”

17. In

# State of Maharashtra vs, Chandraprakash Kewalchand Jain, (1990) 1 SCC 550

the Hon’ble Apex Court had held as under :-

“It is necessary at tile outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex-offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute ‘Evidence’ means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all per- sons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accompliceSection 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section. 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b).”

18. No doubt to insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crime are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available.

19. In

# State of Punjab vs. Gurmit Singh, 1996 (2) SCC page 384

the following observation were made by the Hon’ble Apex Court:-

“The courts must, while evaluating evidence, remain alive to the fact 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. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”

20. But on the same hand where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies as other material, prosecutrix making deleberate improvements on material point with a view to rule out consent of 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 vs. State of Maharashtra, (1999) 1 SCC page 220.

21. In the same context, The Hon’ble Apex Court in

# Jai Krishna Mandal vs. State of Jharkhand, (2010) 14 SCC page 354

has observed as follows:-

“The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed.”

22. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.

23. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by relying evidence. The accused is entitled to the benefit of every reasonable doubt vide,

# AIR 1979 Supreme Court page 186, (Tukaram and another vs. State of Maharashtra)


# AIR 2003 Supreme Court page 1639, (Udai vs. State of Karnataka).

24. The statement of the victim was recorded by the trial court which does not inspire confidence because the victim PW-2 has stated that the accused took her to her sister’s house. There her sister and her brother-in-law and his brother locked her in a room and she was raped by the brother-in-law of her sister. This is a bit not a palatable case that why a sister would get her own real sister being raped in her house for months together. Further, as per the prosecution version, the victim was detained for many months by the accused whenever, her father and relatives went to meet her they were not permitted to meet her. PW-1 Babu has stated that he went 4 to 5 times to meet the victim but he was not permitted to do so. On 10.05.2011, again he went to meet her daughter with Pappu Chamar, his wife Munni, Gokul and mother of the victim but Kiran and accused appellant and other said that the victim has eloped away. They heard the weeping sounds of the victim at which they entered the house and saw that the victim was locked in a room. A very strange averment brought fourth by this witness is that due to shame the victim did not tell them anything. When they went home, the victim narrated the whole occurrence. He also stated that the victim told him that she was also threatened to be set on fire if she resisted, which is wanting in the first information report, which has been written after due consultation with an Advocate. Further the victim PW-2 has stated that she was locked in the room by the appellant, Kiran, her real sister and Nripati her real brother-in-law. Whenever, her parents used to come to take her, they used to lock her inside the room and did not termed her to meet her parents. She has stated that they told her parents that she had gone to her relative’s house. This is in contradiction to the statement of PW-1. According to whom, the accused persons said that the victim had eloped. she has further stated that when she was taken out of the room by her parents and other people, Kishor, Kiran, Nripati and Ramawati assaulted her parents, the victim and her family members who had come along. She has admitted that she stayed at the house of her sister for three months. there is no latrin in the house. She used to go out of the house to attend the call of nature but she did not meet anybody there. Why she did not raise alarm for three months is a million dollar question which remains unanswered through out the trial. She has further stated that Kishor used to make signs and gestures to call her in the room, this was stated by her to the I.O. If at all Kishor used to call her by gestures and signs in her room then obviously it would be a case of consent, inasmuch as, the age of the victim on the date of occurrence was above 18 years, whereas the age of consent on the date of occurrence was 16 years.

25. PW-5 is Munni Devi, the mother of the victim who has stated that when the accused took the victim to his house, 15 days after that her father went to bring her back but the accused said that they would later on send the victim. This is the third story coming forth from the side of the prosecution. As per this witness, again after 15 days, her husband went to bring the victim when her weeping sound was heard and she was recovered, thus, according to the version of this witness, the victim was detained in the house of the accused only for one month. The statement of this witness shatters the whole prosecution case.

26. Counsel for the appellant has further submitted that there was some money dispute between the parties due to which the appellant had been falsely implicated. This finds support from the version of the prosecution witnesses, inasmuch as, Babu PW-1 has admitted that at Kotra Police Station, he was forced to sign some papers by the police. Even the victim has stated that when the victim and her family members went to the police station Nripati, Kiran and Kishor threatened them and got the compromise deed written, which was got signed by the victim, her father and the thumb impression of her mother were forcible obtained on that paper. Even the mother of the victim has stated about this paper which is Exhibit Ka-2 on record. This paper was got proved by the prosecution itself who placed reliance on this document. This document says that Nripati had moved an application on behalf of his wife Kiran against his father-in-law and brother-in-law against which Babu had moved an application in the police station but the parties compromised. They did not want any action to be taken in the matter and Nripati Singh, accused also compromised by agreeing to pay Rs. 25,000/- in the marriage of the victim which again goes to show that a handsome amount was desired to be extracted from Nripati, accused the son-in-law of the informant.

27. The medical evidence does not support the prosecution version. The statement of all the witnesses are unreliable, improbable and contradictory to each other. The first information report was got scribed with the assistance of an Advocate. Even in the statement of the victim recorded under Section 164 Cr.P.C., she has stated that after some days since she was brought from her house, her parents came to the house of the accused and got her set free. This statement is against the statement of the victim recorded in court according to which she stayed in the house of the accused for about three months. Thus, the prosecutrix has been changing her version again and again which makes her testimony unreliable and unworthy of credence.

28. Thus, on what has been said and discussed above, the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellant and the appeal is liable to be allowed.

29. Accordingly the appeal is allowed.

30. The judgment and order of conviction and sentence dated 30.06.2015, passed by Additional Sessions Judge / F.T.C., Jalaun at Orai, in S.T. No. 113 of 2012 (State vs. Kishor), arising out of Case Crime No. 52 of 2012, under Sections 323, 504, 506, 376 I.P.C. and S.T. No. 124 of 2012 (State vs. Nripati), arising out of Case Crime No. 52 of 2012, under Sections 323, 504, 506 I.P.C., Police Station Kotra, District Jalaun, as against the present appellant, is hereby set aside.

31. The appellant namely Kishor is in jail. He shall be released forthwith in this case. However, the appellant is directed to comply with the provision of Section 437-A Cr.P.C.

32. Let a certified copy of this judgment be sent to the court concerned.


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