prosecution case appears to be a bundle of incorrect facts: Allahabad High Court

A.F.R.
RESERVED
Court No. – 27
Case :- CRIMINAL APPEAL No. – 1504 of 2013
Appellant :- Bhopal Singh & Another
Respondent :- State Of U.P.
Counsel for Appellant :- Ashish Agrawal,Brijesh
Sahai,Rajesh Kumar Srivastava
Counsel for Respondent :- Govt. Advocate
Hon’ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgment and
order dated 19.03.2013, passed by Additional District
and Sessions Judge, Court No. 15, Muzaffarnagar, in
Sessions Trial No. 923 of 2005 (State vs. Bhopal Singh
& Others), arising out of Case Crime No. 263 of 2005,
under Sections 376, 323, 506 I.P.C., Police Station
Budhana, District Muzaffarnagar, whereby the accused
Smt. Rajesh was acquitted for the charges framed
against her under Sections 323 and 506 I.P.C. Further,
the accused Bhopal Singh and Sunny were found guilty
under Section 376 I.P.C. and each were sentenced to
10 years’ rigorous imprisonment along with fine of Rs.
25,000/- with default stipulation.
2. Filtering out unnecessary details, the prosecution
case in brief is that the informant has lodged a report
on 14.03.2005 stating that she was aged about 20
years and was living with her aunt and uncle (Bua and
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Foofa) since when she was one year old. They had
adopted her from her real parents who were living in
Meerut but they had not adopted her legally. Her real
elder brother Sunny used to live with her real parents
at Meerut. In 1997, when the victim was studying in
class 8th and she was about 12 to 13 years of age, her
aunt (Bua) went to her grand mother’s house for 2 to 3
days to Muzaffarnagar. Her aunt and uncle (Bua and
Foofa) did not have any children, hence they treated
the victim as their child and the victim also treated his
aunt and uncle (Bua and Foofa) as her parents. Only
these three people used to live in the house. In the
absence of her aunt (Bua), her uncle (Foofa) started
sexual abuse of the victim. Initially the victim felt very
unnatural, unsafe and wrong but her uncle (Foofa) used
to sexual assault her, when she was in deep asleep.
Often during the night, her uncle (Foofa) used to press
her mouth and neck and used to threatened her not to
tell anything to anybody. He also threatened her that if
she would tell this incident to her aunt (Bua), then she
would beat her badly. The victim thought that nobody
would believe her due to which she was very much
frightened. Often, after getting opportunity, her uncle
(Foofa) used to rape her and threatened her. Due to all
these things, the victim was mentally disturbed. She
started keeping quiet. She could neither concentrate on
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her study nor she could understand what to do. At
times, she thought of leaving her house or to commit
suicide. During that period, in the summer vacation,
she went for 15 days to Meerut to live with her real
parents. Her father was a Head Constable in the U.P.
Police, who did not live with the family. He was being
transferred due to his service. In the absence of real
mother of the victim, her real elder brother Sunny also
started raping her. Her real brother raped her and
sexually assaulted her till 2004. Whenever, she tried to
resist her brother, he used to beat her. In March 2004,
Sunny got married. In April 2004, when the victim went
to her house, her brother Sunny again tried to made
physical relations with the victim. The victim collected
courage and said that she would tell all the facts to
everybody. On 14.02.2005, at 05:30 A.M., when her
aunt (Bua) went out for a walk, her uncle (Foofa),
again raped her. On 18.02.2005, at 06:00 A.M., she
narrated the whole incident to her real mother and also
told her about the activity of rape by her uncle (Foofa)
and her real brother Sunny. At this, her mother told her
that she should tell about the act of her uncle (Foofa)
to her aunt (Bua) but told her not to say anything
about the act of her brother Sunny. On the same day at
10:00 A.M., she told everything to her aunt (Bua). Her
aunt (Bua) told her that why she told the whole
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occurrence to her real mother and the victim herself
was at fault. Her aunt (Bua) called her mother
telephonically and they decided that nobody should
come to know about these facts. Instead of helping the
victim, her aunt (Bua) beat the victim by slippers. At
this, her uncle (Foofa) came in the room. Her aunt
(Bua) also threatened to assault her husband with the
knife. She asked her husband, why he had raped the
victim. For some days, there was tension in the house
and the victim was made to feel that only she was at
fault. The next day, the aunt (Bua) of the victim talked
to the real mother of the victim. The aunt (Bua) told
the victim that her mother has suggested that the
victim be killed so that both the families could be saved
from ill repute. The victim decided that she should take
some steps to save her life. She had noted the
telephone number of “Mahila Aayog” when the
television was displaying the “Radio Mirchi” channel.
She telephoned to the “Mahila Aayog” from where she
was given the telephone number of “Jago Ri
Organization”, a latest organization. On 02.03.2005,
the victim wrote a letter in the name of her cousin
Ashish, in which she wrote all the incident and also the
reason why she was leaving her house. Finding no
other alternative, she took out Rs. 5000/- and left the
house without telling her aunt and uncle (Bua and
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Foofa). At about 12 O’clock, without any information,
she left the house with Rs. 5000/- and two books. On
2
nd March, in the evening, she reached Delhi. She
requested “Jago Ri Organization” to help her morally
and legally. This information sent by the “Jago Ri
Organization” was registered as first information report
at the police station.
3. The prosecution examined as many as seven
witness. PW-1 is the victim, who proved her written
report as Exhibit Ka-1. PW-2 is Dr. Manorama Gupta,
who examined the victim. The doctor did not find any
external or internal injuries on the body of the victim.
The hymen was old torn. The vagina was admitting two
fingers easily. The doctor has proved the medical report
as Exhibit Ka-2. PW-3 is Constable Clerk Sheesh
Kunwar, who has stated that the first information report
was received to the S.S.P., Muzaffarnagar through
“Jago Ri Organization” along with covering letter. Thus,
report was registered. This witness has proved the chik
report as Exhibit Ka-3 and the copy of G.D. as Exhibit
Ka-4. PW-4 is Additional S.P. Ruchita Chaudhary, who
conducted the part of the investigation. She recorded
the statement of the victim and inspected the spot.
This witness has further prepared the site plan which
was proved as Exhibit Ka-5. PW-5 is S.O. Akla Pawar,
who conducted the investigation. She copied the chik
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report in the case diary, recorded the statement of the
accused. The statement of the informant was recorded
on 16.04.2005. The medical report of the victim was
received by this witness who copied it in the case diary.
When the victim was requested to get the spot
inspected, she refused on the ground that there was
danger to her life. PW-6 is Shailendra Lal, who also
conducted the part of the investigation. On 30.08.2006,
he recorded the statement of Smt. Rakesh, one of the
accused. The investigation was ended into a charge
sheet, which was proved by this witness as Exhibit Ka-
6. PW-7 is Poonam, who is said to be the witness of
fact.
4. After close of the prosecution evidence, the
statement of the accused were 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. Accused Bhopal Singh has stated that the
victim was going on the wrong path. He and his wife
tried to restrain her, hence the victim lodged false
report against him. The accused Sunny while denying
the occurrence has stated that the victim was going on
the wrong path, when she was restrained, she lodged
an incorrect report on the instigation of her male
friend. The accused did not adduce any evidence in
their defence.
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(Bhopal Singh & Another vs. State of U.P.)
5. 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.
6. Feeling aggrieved, the accused has come up in
appeal.
7. Heard Sri S.S. Shukla, Advocate assisted by Sri
Anil K. Shukla, learned counsel for the appellants,
learned Additional Government Advocate for the
opposite party and perused the lower court record.
8. Learned counsel for the appellants has submitted
that there is inordinate delay in lodging the first
information report. As per the prosecution version, the
victim was raped continuously from 1997 to 2005 i.e.,
she was raped right from when she was 12 to 13 years
till she become 20 years of age, hence, there was no
reason why she did not lodge the report earlier.
9. This is a case of its own kind in which on one side,
the real brother of the victim is said to have committed
rape on the victim continuously from 1997 to 2005 and
on the other side, her uncle (Foofa) who was also the
adoptive father of the victim committed rape on her
right from 1997 to 2005. Although, it has come in
evidence that the victim was not legally adopted by the
accused Bhopal Singh, and Rajesh who were uncle and
aunt (Foofa and Bua) in relation to the victim and are,
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in our society, stand on the same footing as a father
and mother. Even the victim herself has admitted that
she used to treat Bhopal Singh as her father and she
was brought up by Bhopal Singh as his daughter.
10. Keeping in view, the relations of the victim and the
accused, this case has to be dealt with. No doubt
sexual violence apart from being a dehumanizing act is
an unlawful intrusion on the right of privacy and
sanctity of a female. It is a serious blow to her supreme
honour and offends her self-esteem and dignity. It
degrades and humiliates the victim and where the
victim is a helpless innocent child or a minor, it leaves
behind a traumatic experience. A rapist not only causes
physical injuries but more indelibly leaves a scar on the
most cherished possession of a woman i.e. her dignity,
honour, reputation and not the least her chastity. Rape
is not only a crime against the person of a woman, it is
a crime against the entire society.
11. Hon’ble Apex Court in AIR 1996 SC 922 (Shri
Bodhisattwa Gautam vs. Miss Subhra
Chakraborty), has laid down as under:-
“The entire psychology of a woman and pushes
her into deep emotional crisis. It is a crime
against basic human rights, and is also violative of
the victim’s most cherished of the Fundamental
Rights, namely, the Right to Life contained in
Article 21 of the Constitution of India, 1950. The
Courts are, therefore, expected to deal with cases
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of sexual crime against women with utmost
sensitivity. Such cases need to be dealt with
sternly and severely. A socially sensitized judge,
in our opinion, is a better statutory armour in
cases of crime against women than long clauses of
penal provisions, containing complex exceptions
and provisos.”
12. Rape is not mere a physical assault, rather it often
distracts the whole personality of the victim. The rapist
degrades the very soul of the helpless female.
13. I am aware that there can never be more graver
and heinous crime than the father / brother being
charged of raping his own daughter / sister. He not only
delicts the law but it is a betrayal of trust. The father /
brother is the fortress and refuge of his daughter /
sister in whom the daughter / sister trusts. Charged of
raping his own daughter / sister under his refuge and
fortress is worst than the gamekeeper becoming a
poacher and treasury guard becoming a robber.
14. It is appalling to see that rape rears its ugly
facade almost every day. ‘Rape’ is one such dark reality
in the Indian Society that devastates a women’s soul,
shatters her self-respect and for a few, purges their
hope to live. It shakes the insight of a woman who once
was a ‘happy person’, and had no clue of being a victim
of the said horrifying and nightmarish encounters
where the daughter / sister had been raped by none
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else but her own progenitor. A daughter / sister always
looks up to her father / brother as a shield of her
dignity and honour which is an intrinsic facet of a family
especially of father-daughter / brother-sister
relationship. It shocks human conscience when the
sanctity of father-daughter and brother-sister
relationship is ravaged in such a sordid manner and the
protector becomes the violator. In such a case the
offence assumes a greater degree of vulnerability which
shall not go unpunished. There can never be a graver
heinous crime than the father / brother being charged
of raping his daughter / sister. It is the gravest sin,
where the most platonic relationship is shattered by an
extreme pervert and shameful act of nonetheless but
one’s own father / brother. The moral values of
individuals of the society have gone down to such a
level that every day we hear similar news which
shudders our mind and soul. We have become
accustomed to saying that females are not safe outside
the house but in few cases, it is seen that they are not
even safe inside their homes, where the epitomy of
God’s beautiful creation, a child is ravished by her own
father / brother for his momentary sexual needs and
pleasure which is heart-rending and odious.
15. No doubt, right to life includes the right to live
with human dignity and all that goes along with it,
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namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter and facilities for reading,
writing and expressing oneself in diverse forms, freely
moving about the mixing and commingling with fellow
human beings.
16. As per the version of the victim, since she was
continuously raped from 1997 to 2005 by her adoptive
father and real brother, she suffered mentally and
physically both. Thus, she sent through “Rape Trauma
Syndrome”. This syndrome has been medically
defined in a journal which is as under:-
“No person exposed to severe trauma is immune
to suffering and the signs of that suffering are
referred to as symptoms. When these symptoms
can be grouped as a pattern over time, they are
referred to as a syndrome. Once the pattern
becomes entrenched or unlikely to change, and
affect a person’s functioning in a permanent way it
is referred to as a disorder and is regarded as a
mental illness.
Rape Trauma Syndrome “RTS” is the medical term
given to the response that survivors have to rape.
It is very important to note that RTS is the natural
response of a psychologically healthy person to
the trauma of rape so these symptoms do not
constitute a mental disorder or illness.
The most powerful factor in determining
psychological suffering or damage is the character
of the traumatic event itself. Individual personality
characteristics count for little in the face of
overwhelming events. Physical harm or injuries
are also not as great a factor since individuals
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with little or no physical harm may yet be severely
affected by their exposure to a traumatic
situation. Before looking at the effects of rape it is
therefore important to first examine the character
of the trauma that is rape.
Not only is there the element of surprise, the
threat of death and the threat of injury, there is
also the violation of the person that is
synonymous with rape. This violation is physical,
emotional and moral and associated with the
closest human intimacy of sexual contact. The
intention of the rapist is to profane this most
private aspect of the person and render his victim
utterly helpless. The character of the event is thus
connected to the perpetrator’s apparent need to
terrorise, dominate and humiliate the victim. The
victim is therefore most likely to see his actions as
motivated by deliberate malice, a malice
impossible for her to understand. Rape by its very
nature is intentionally designed to produce
psychological trauma. It is form of organised
social violence comparable only to the combat of
war, being but the private expression of the same
force. We get nowhere in our understanding of
Rape Trauma Syndrome if we think of rape as
simply being unwanted sex. Where combat
veterans suffer Post Traumatic Stress Disorder,
rape survivors experience similar symptoms on a
physical, behavioural and psychological level.
Some of the symptoms are present immediately
after the rape while other only appear at a later
stage.”
17. In the above backdrop, the statement of the
victim has to be examined very carefully and
cautiously.
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18. Learned A.G.A. has submitted that in cases of rape
the sole testimony of the prosecutrix should be relied
upon because the testimony of the prosecutrix stands
on a better footing than of an injured witness and
refusal to act on the testimony of the victim of sexual
assault in the absence of corroboration as a rule, is
adding insult to injury.
19. I have no doubt that the evidence of a girl who
complains of rape or sexual molestation should not be
viewed with the aid of spectacles fitted with lenses
tinged with doubt, disbelief or suspicion because doing
so would justify the charge of male chauvinism in a
male dominated society.
20. On the other hand, the Hon’ble Apex Court has
laid down in Abbas Ahmad Chaudhary vs. State of
Assam, 2010 Crl.L.J. Page 2060 (SC) 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.”
21. There is no quarrel on the proposition of law that,
if the story, projected by the prosecutrix, is so
improbable that it could not be believed, then the
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(Bhopal Singh & Another vs. State of U.P.)
accused persons cannot be convicted.
22. In (2015) 7 SCC page 272, (Mohd. Ali @
Guddu Vs. State of U.P.), the Hon’ble Apex Court has
held as under:-
“True it is, the grammar of law permits the
testimony of a prosecutrix can be accepted
without any corroboration without material
particulars, for she has to be placed on a higher
pedestal than an injured witness, but, a pregnant
one, when a Court, on studied scrutiny of the
evidence finds it difficult to accept the version of
the prosecutrix, because it is not unreproachable,
there is requirement for search of such direct or
circumstantial evidence which would lend
assurance to her testimony. As the present case
would show, her testimony does not inspire
confidence, and the circumstantial evidence
remotely do not lend any support to the same. In
the absence of both, we are compelled to hold
that the learned trial Judge has erroneously
convicted the accused-appellants for the alleged
offences.”
23. PW-1 is the victim. According to her statement,
the accused person started committing rape on her
while she was minor. During the course of being raped,
she attained the age of majority and when she lodged
the report, she was admittedly major. In her
examination-in-chief, she has supported the
prosecution version. In examination-in-chief, she has
stated that her uncle (Foofa) sexually harassed her. She
felt unsafe and unnatural. Her uncle (Foofa) also
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(Bhopal Singh & Another vs. State of U.P.)
fondled her. He also misbehaved her physically with his
feet and private parts. He also threatened to kill her, if
she would tell anything to her aunt (Bua). She was
frightened. Further, she has specifically stated that her
uncle used to rape her and when she went to her
biological parents, her brother accused appellant Sunni
raped her, in the absence of her biological parents. She
has stated that in every summer vacations, she went to
her biological parents, where her real brother
committed rape on her. When she asked her brother
not to rape her, he used to beat her. This witness has
stated that on 18.02.2005, she told her biological
mother about the accused raping her, she also told her
aunt (Bua) about both the accused. Her mother told
her not to disclose the name of her brother Sunny. Her
aunt (Bua), when she came to know about the incident,
she asked the accused Bhopal Singh (her husband),
why he had opened the tape (Nara) of the victim. This
sentence is firm to the whole prosecution case and
there is no reason why the wife would not have directly
asked her husband as to why he raped the victim.
24. Trying to add weightage to her case, she has
stated that she heard her mother talking to her aunt
(Bua) in which her mother was stating that the victim
should be killed. No doubt, it was possible that this
witness could hear, what her aunt (Bua) was saying,
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(Bhopal Singh & Another vs. State of U.P.)
but from the other side, what her mother in phone was
saying could not have been over heard by this witness.
This witness has stated that she left her home after
telling her aunt (Bua) that she was going to the home
of her teacher (Sir). She left the house on 02.03.2005.
25. In cross-examination, this witness has stated that
she narrated the entire incident to her mother and her
aunt (Bua), for the first time on 18.02.2005. Before
that, she never tell them anything. The letter which is
said to have been left at the home addressed to Ashish
is not on record. Here, a question arises, as to why, if
her mother was helping her real brother and her aunt
(Bua) was helping her uncle (Foofa), what was the
reason, she did not narrate the whole incident to her
real father, although the witness has stated that her
real father was working in the U.P. Police, who used to
stay out of the house with regard to his service. If this
witness travelled several places, there was no reason
why she could not bring the whole incident to the
notice of her father, especially, when she has
specifically admitted that **?kj ls eS 2 ekpZ 2005 dks x;h FkhA
esjs firk th esjs tkus ls nks rhu igys cq< +kuk es a vk;s FksA firk th
cqvk th o Q wQk th dh vkil es a ckr gq;h Fkh] fd yM+dh toku gks
x;h gSA vc bldh ‘kknh dj nksA**
26. Thus, even 2 to 3 days prior to her leaving home,
when her father was easily available for her to talk,
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(Bhopal Singh & Another vs. State of U.P.)
there was no reason why she did not inform her father.
No doubt, generally a mother is said to be the best
friend of a young daughter. But in this particular case,
as per the prosecutrix, her biological and adoptive
mothers were not helping her, hence she could very
well have reported the matter to her father, who was
working in U.P. Police, but she did not do so.
27. I would like to specify the fact that the first
information report written in the hand writing of this
victim, appears to be fabricated and as an after
thought, inasmuch as, after **lsok es a** the name and
address of “Jago Ri Organization” along with its address
was written in black ink and the last two lines as
follows:- **eS pkgrh gWw fd tkxksjh esjh gj rjg ls enn djs pkgs
oks dku wuh gks ;k fQj HkkoukRedA** was also written in black
ink. After these two lines, the name of the victim along
with her signatures was again written in blue ink.
Meaning thereby that when the first information report
was being written about 4 to 5 times, the pens were
changed. Another word which disturbed the mind of the
Court is that in the first information report, the
informant has stated that initially, she felt very
unnatural and unsafe and that this was wrong. Meaning
thereby, initially she felt bad and later on she felt very
normal. Even in the first information report, she has
stated that she threatened her brother that she would
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(Bhopal Singh & Another vs. State of U.P.)
tell the facts to everybody but why this was not done is
a million dollar question which remains unanswered
throughout the trial. Even otherwise, the first
information report i.e. application addressed to the
“Jago Ri Organization” is dated 14.03.2005, whereas,
according to the victim she has reached the
organization on 02.03.2005 herself in the night. Why
she could not give the information for 12 days, has not
been explained. Although, the first information report is
only a corroborative piece of evidence but its perusal
shows that the informant has stated in the first
information report that she was leaving her house for
her safety and she had danger to her life from her aunt
(Smt. Rajesh), uncle (Bhopal Singh), her real mother
(Smt. Rakesh), Father Surendra and her real brother
(Sunny). Thus, in the first information report she has
also stated that her biological parents, her adoptive
parents and her real brother all wanted to kill her,
whereas, as per her evidence, neither her father knew
anything about the occurrence nor there was any threat
by the father to the victim.
28. When the statement of the victim was recorded,
she did not give her correct address but she gave the
address of “Jago Ri Organization”. The victim has
admitted that she used to go to Muzaffarnagar from
Budhana to attend college. She has also stated that
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(Bhopal Singh & Another vs. State of U.P.)
one week prior to 02.03.2005, she had gone to village
Hasanpur. She has stated that **esjh cqvk dh nsojkuh dh
yM+dh ds nsoj dh ‘kknh gqbZ Fkh] eS cgw ns[kus xbZ FkhA** She has
also stated that in the summer vacation besides going
to her biological parents, she also used to often go to
the village Hasanpur which was her parental village.
29. Counsel for the appellants has submitted that the
appellants were falsely implicated because the victim
was going on a wrong path. She wanted to marry
Tajendra but the appellants resisted the marriage due
to which they were falsely implicated. In this respect,
the victim has stated that she knows that Tejendra is
the Son of Veena, who is her neighbour. Tajendra used
to go to his house, sometimes, to take fodder. Thus,
somewhere, or the other the involvement of Tajendra in
the whole episode is proved and admitted.
30. Some contradictions were also put to this witness
in which she has stated that she had told the police
that on 13.02.2005, the victim, her aunt (Bua) and
Ashish were sleeping on the double bed. Her uncle
(Foofa) was sleeping outside but she was not raped on
13.02.2005, infact, she was raped on 14.02.2005. As I
have said earlier, corroboration is not must in such
cases but the victim has specifically stated that initially
where she was tenant in a house, one Poonam was also
tenant. Poonam was also examined by the prosecution
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Criminal Appeal No. 1504 of 2013
(Bhopal Singh & Another vs. State of U.P.)
as PW-7, who has stated that she knows the victim.
Both were tenants in the same house. She was never
told by the victim about the “Jago Ri Organization” nor
she was ever told that she was raped by the accusedappellants.
This witness was declared hostile by the
prosecution but she was cross-examined by the
prosecution which also could not come to the rescue of
the prosecution.
31. The victim has stated that she did not tell to the
police that she like Brijlal’s son Tajendra. This question
was also put to the Investigation Officer, PW-5 Alka
Kunwar, who has stated that during investigation, the
victim has told her that she had a liking for Tajendra,
thus, these contradictions strikes at the root of the
case.
32. There is nothing significant in the medical
examination of the victim because it was conducted
years after the incident. The I.O. did not prepare the
site plan at the pointing out of the victim but it was
prepared at the pointing out of Poonam, who was not at
all residing in the house of the victim and who turned
hostile to the prosecution case. The reason why the site
plan was not prepared on the pointing out of the victim
has not been stated by PW-4 Ruchita Chaudhary, the
I.O., who has stated that during investigation it came
to her knowledge that Tajendra was apprehended by
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(Bhopal Singh & Another vs. State of U.P.)
the police and taken by the police of Budhana Police
Station. He was apprehended on the complaint of
family members of the victim which fact was narrated
by the sister of Tajendra. The I.O. also found that
Bhopal Singh always objected when Tejendra came to
his house. He had also abused Tajendra for coming to
his house. PW-4 Ruchita Chaudhary has admitted that
she did not tried to contact the father of the victim. Nor
she tried to know the present address of the victim as
to where she was residing in Delhi.
33. In cross-examination, PW-4 has stated that the
victim refused to get her statement recorded under
Section 164 Cr.P.C. and the victim did not say to her
that she was sexually harassed by her uncle (Foofa).
She has also stated that the victim did not say to her
that she was raped by her uncle (Foofa). Even PW-5
I.O. Alka has stated that during investigation it came to
her notice that Tajendra used to come to the house of
the victim to which Bhopal Singh objected. She has
also stated that the victim told her that the accused
Bhopal Singh used to fondle her with his legs. This
witness also did not investigate this aspect of the
matter from the victim during investigation. Admittedly,
the mother of the victim was also an accused, as per
the charge sheet filed by the prosecution.
34. Thus, there are several dents and improbabilities
22
Criminal Appeal No. 1504 of 2013
(Bhopal Singh & Another vs. State of U.P.)
in the statements of the victim. The defence has put
forth by the accused appellants appears to be correct,
inasmuch as, PW-3 Constable Sheesh Kunwar has
stated that on 07.03.2005, the accused appellant
Bhopal Singh had lodged the missing report about the
victim. Even the I.O. PW-4 Ruchita Chaudhary has
stated that it came to her notice during investigation
that Ashish told the victim telephonically that after she
left the house, the family members had lodged the
missing report at Police Station Budhana. This finds
support from the papers on record, inasmuch as, on
07.03.2005, Bhopal Singh lodged the missing report at
the Police Station Budhana stating that the victim was
missing from the house since 02.03.2005 and on
13.03.2005 again the appellant Bhopal Singh moved an
application before the S.O., Kotwali, Budhana stating
that the victim was missing since 02.03.2005 and
telephonically he has come to know that Tejendra Malik
took her away and has hidden her.
35. Use of the case diary is very limited but I could
not resist from going through the whole case diary
available on record, according to which when the victim
was asked to get the spot inspected, she refused at the
pretext of danger to her life. Besides all along, she was
accompanied by the members of the “Jago Ri
Organization”. Even then, inspite of the fact that police
23
Criminal Appeal No. 1504 of 2013
(Bhopal Singh & Another vs. State of U.P.)
was with her and she had come till Budhana with the
members of the Organization and the police, she could
not gathered the courage to get the spot inspected.
She also refused to get her statement recorded under
Section 164 Cr.P.C. This conduct of the victim can
definitely be looked into.
36. Thus, I conclude that the statement of the victim
has wholly unreliable.
37. In (2013) 4 Supreme Court Cases page 206
(State of Rajasthan vs. Babu Meena), the Hon’ble
Apex Court has laid down and classify the whole
testimony to be of three categories.
(1) Wholly reliable,
(2) Wholly unreliable,
(3) Neither wholly reliable nor wholly unreliable.
38. It has further been laid down that if the
prosecution has proved wholly unreliable testimony of a
single witness, the Court has no option than to acquit
the accused. Thus, as I have stated above, I have
found the witness i.e. the victim to be wholly
unreliable, hence it would not be safe to sustain the
order of conviction of the accused in this peculiar case
in which the accused persons have been falsely
implicated and the prosecution has miserable failed to
proved its case beyond all reasonable doubts.
24
Criminal Appeal No. 1504 of 2013
(Bhopal Singh & Another vs. State of U.P.)
39. The accused appellant Bhopal Singh was of 70
years of age whereas, the accused appellant Sunny was
aged about 25 years. Sunny was said to have been
married in 2004. There is no evidence that his wife was
not in the house. There is no reason why Sunny’s wife
could not object to the factum of rape, if Sunny was
continuously was raping his sister in the same house.
40. Thus, it appears that the victim fall in the
company of Tejendra and other people on whose
instigation, she had filed a false report against the
accused. Charge sheet was also submitted against the
mother of the victim. Thus, the whole prosecution case
appears to be the bundle of incorrect facts, hence, the
conviction cannot be sustained.
41. Thus, the prosecution has miserably failed to
prove its case beyond reasonable doubt against the
present appellants and the appeal is liable to be
allowed.
42. Accordingly the appeal is allowed.
43. The order of conviction and sentence dated
19.03.2013, passed by Additional District and Sessions
Judge, Court No. 15, Muzaffarnagar, in Sessions Trial
No. 923 of 2005 (State vs. Bhopal Singh & Others),
arising out of Case Crime No. 263 of 2005, under
Sections 376, 323, 506 I.P.C., Police Station Budhana,
District Muzaffarnagar, as against the present
25
Criminal Appeal No. 1504 of 2013
(Bhopal Singh & Another vs. State of U.P.)
appellants, is hereby set aside.
44. The appellants namely Bhopal Singh and Sunny
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.
45. Let certified copy of this judgment be sent to the
court concerned.
Order Date :- 09.05.2016
sailesh