Rape conviction set aside: Allahabad High Court 2016

Criminal Appeal No. 5787 of 2013
(Ashish And Anr. vs. State of U.P.)
RESERVED
Court No. – 27
Case :- CRIMINAL APPEAL No. – 5787 of 2013
Appellant :- Ashish And Anr.
Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh
Counsel for Respondent :- Govt. Advocate
Hon’ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgment and
order dated 24.10.2013 passed by the learned
Additional Sessions Judge, Court No. 6, Kanpur Dehat /
Ramabai Nagar in Sessions Trial No. 468 of 2011 (State
vs Ashish and others) arising out of Case Crime No.
328 of 2011, under Sections 376, 506 I.P.C., Police
Station Bilhor, District Kanpur Nagar, whereby the
accused appellants Ashish and Baoua have been
convicted and sentenced to ten years’ rigorous
imprisonment and a fine of Rs. 10,000/- each under
Section 376(2)(g) I.P.C. with default stipulation. Out of
the fine so deposited by the appellants, a sum of Rs.
10,000/- was directed to be paid to the victim.
2. In short compass, the case of the prosecution as
unfolded by the prosecution is that on 03.08.2011, an
application was moved by Surendra Tiwari, to the
District Inspector General of Police, Kanpur, Exhibit Ka-
1 to the effect that when his daughter was alone in the
house, at that time regional musslemen Baoua, Ashish
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(Ashish And Anr. vs. State of U.P.)
and Rinku had forcibly committed rape on her and also
threatened her to kill if she told this matter to anyone.
She is under fear. On being pregnant, the accused are
trying to get her aborted. When he tried to go the
police station, accused stop him in the way. On the
basis of the aforesaid written report and on the order of
Deputy Inspector General, the Station Officer, Bilhor,
has prepared Chik FIR against the accused Ashish,
Baoua and Rinku at case crime No. 328 of 2011, under
Sections 376 and 506 I.P.C. at 05:05 P.M., Exhibit Ka-
4, which was entered into GD, Exhibit Ka-5.
3. After the registration of the case, Station Officer,
Santosh Kumar Tiwari, PW-10 has recorded the
statement of the victim and got the victim medically
examined. He also received medical report,
supplementary report and certificate regarding age of
the victim. On the pointing out of the informant, he
prepared the site plan as Exhibit Ka-13. On
11.08.2011, he arrested the accused Baoua and
recorded his statement. He also got the statement of
the victim recorded under section 164 Cr.P.C.
Thereafter, the Investigating Officer has been
transferred and the remaining investigation was
conducted by S.I., Nagesh Upadhyay, PW-7. This
witness on 26.08.2011 and 13.09.2011 arrested the
remaining accused Ashish and Rinku and recorded their
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(Ashish And Anr. vs. State of U.P.)
statements. After completing the necessary formalities,
on the basis of sufficient evidence, the Investigating
Officer has submitted the charge sheet against the
accused persons under Sections 376 and 506 I.P.C.,
Exhibit Ka-10.
4. However, as the accused Rinku was found juvenile,
his case was separated and referred to the Juvenile
Justice Board.
5. To bring home the guilt of the accused, the
prosecution has examined as many as ten witnesses.
PW-1 is Surendra Tiwari, the informant and the father
of the victim. PW-2 is the victim of the case. PW-3 is
Dr. Jai Singh. PW-4 is Constable Santosh Kumari. PW-5
is Dr. Anita Singh, who has medically examined the
victim. PW-6 is Dr. R.C. Bhatt. PW-7 is S.I., Nagesh
Upadhyay, the second investigating officer. PW-8 is Dr.
Jaswant Ratnakar. PW-9 is Head Constable Indra Lal.
PW-10 is Santosh Kumar, the first investigating officer.
6. PW-1, Surendra Tiwari is the informant and father
of the victim. He deposed that his wife has expired. He
has two children, one daughter and a son. At the time
of occurrence, the victim was aged 15 years. At the
time of occurrence, he and his son had gone to see
Ramleela. His daughter was alone in the house. On that
night, three persons had come to his house, whose
names are Baoua, Ashish and Rinku. The accused
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(Ashish And Anr. vs. State of U.P.)
persons are his neighbours. All the three accused
persons committed gang rape on his daughter forcibly.
This incident was not told by the victim to anyone as
the accused had given her threat that they will kill her
brother and father if she narrates this matter to
anyone. Due to fear, his daughter did not tell this fact
to anyone. After about five and a half months, when
there was a rumour in the locality and village that the
victim is pregnant, then he enquired about this fact
from the victim, who narrated the incident and told that
accused had committed rape on her. Thereafter, he
reported this matter to the DIG, who passed an order
for registration of the case. This witness has proved the
written report as Exhibit Ka-1.
7. PW-2 is the victim of the case. She deposed that
she has one brother. Her mother has expired. On the
date of incident, her brother and father had gone to see
Ramleela. On that day, she was alone in the house. At
that time Ashish, Baoua and Rinku entered into her
house. They caught hold of her and committed rape on
her against her wishes. This witness recognised the
accused Ashish and Baoua in Court. This witness
further stated that while the accused persons were
committing rape, they did not allow her to cry. They
threatened that they will kill her father. Due to fear she
did not disclose this incident to anyone. The accused
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clandestinely wanted to get her aborted. They
prevented her and her father from lodging the report
and stopped them on the way. Her father appeared
before the DIG and narrated the incident to him, who
sent her father to Mahila Thana, where report was
lodged. After lodging of the report, her medical
examination was got conducted and also got her
statement recorded before the Magistrate under
Section 164 Cr.P.C, which was proved by the victim as
Exhibit Ka-2.
8. PW-3 is Dr. Jai Singh, who deposed that on
09.08.2011, he was posted as C.M.O., Kanpur Nagar.
Victim was sent to him by Station Officer, Bilhor
through lady Constable Sarojini Yadav, Police Station
Bilhor. She was sent for the x-ray of elbow, wrist,
clavicle and ilia crest. As per the report of the
Radiologist, the age of the victim was found to be 16
years. This witness has prepared the report under his
handwriting and signature as Exhibit Ka-3.
9. PW-4 is Constable Santosh Kumari, who was
posted at Mahila Thana, Kanpur Nagar. She deposed
that on 03.08.2011 at 5.00 P.M., she received the
application of the informant by post mentioning therein
that the accused Ashish, Baoua and Rinku committed
gang rape on the victim forcibly and also threatened
her to kill. That application bore the signature of DIG.
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(Ashish And Anr. vs. State of U.P.)
On that application, there was an order of the Circle
Officer directing the Station Officer, Mahila Thana to
register and investigate the matter, on the basis of
which a case at case crime No. nil of 2011 under
Sections 376 and 506 I.P.C. was registered on
03.08.2011 at 5.05 P.M. This witness has further stated
that she prepared the chik FIR and copy of GD under
her handwriting and signatures, as Exhibits. Ka 4 and
5.
10. PW-5 is Anita Singh. She deposed that she was
posted at AHM, Hospital, Kanpur Nagar as Consultant.
She has medically examined the victim on 03.08.2011
at 7.45 P.M., who was brought by lady Constable Guddi
Devi and Homeguard Ram Janki. On internal
examination she found that there was no injury on any
part of the body. Hymen was old torn and healed. She
prepared two slides of vaginal smear of the victim and
sent the same to the Pathologist of Ursala Hospital. For
ascertaining the age, the victim was referred to the
CMO, Kanpur Nagar. X-ray and ultrasound of the victim
was done at UHM/AHM Hospital. As per the report of
the Pathologist, no spermatozoa was found. As per
ultrasound report, there was a fetus in the womb. The
head of fetus was upside. Ample water was present in
the uterus. Movement was normal. Medical report,
Exhibit Ka-6, slides reference slip, Exhibit Ka-7 and
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(Ashish And Anr. vs. State of U.P.)
supplementary medical report Exhibit Ka-8 were
prepared by this witness under her handwriting and
signatures.
11. PW-6 is Shri R.C. Bhatt. He deposed that on
04.08.2011 he was posted as Senior Consultant
Radiology at UHM Hospital, Kanpur Nagar. On that day
Homeguard Nirmala, had brought the victim for x-ray,
who was referred by the CMO, Kanpur Nagar. The x-ray
of the victim was done under his supervision. This
witness has further stated that Elbow joint was fused.
Wrist and iliac crest and clavicle bones were not fused.
This witness has proved x-ray report as Exhibit Ka-9.
12. PW-8 is Dr. Jaswant Ratnakar, who was posted as
Radiologist at PHM Hospital. He deposed that on
10.08.2011, he has done the ultrasound of the victim.
He has stated that there was a fetus of 26 weeks in the
womb. The expected date of delivery was 16.11.2011,
which may vary either way. The victim was brought by
lady constable Sarojni. This witness has further stated
that he has prepared the ultrasound report Exhibit Ka-
11 on the basis of ultrasound film material Exhibit Ka 4.
13. PW-9 is Head Constable Indra Lal. He deposed
that on 5.8.2011, he was posted as Head Muharrir at
police station Bilhor. On that day, a chik FIR was
received by the Station Officer by post from the Mahila
Thana at Case Crime No. Nil of 2011, under Sections
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(Ashish And Anr. vs. State of U.P.)
376, 506 I.P.C. On the direction of the Station Officer
Case Crime No. 328 of 2011 was registered, which was
entered in the GD on 05.08.2011 at 7.30 P.M. This
witness has proved the copy of the GD as Exhibit Ka-
12.
14. The evidence of PW-7 S.I., Nagesh Upadhyay and
PW-10 S.O., Santosh Kumar Tiwari has already been
discussed above.
15. After the close of the prosecution evidence, the
statements of the accused were recorded under section
313 Cr.P.C., in which they have denied the occurrence
and claimed to be tried. They have produced five
witnesses in their defence. DW-1, Sudha, the mother of
the accused, DW-2, Satish Chandra, DW-3, Ram
Agnihotri, DW-4 Navneet Mishra and DW-5 Ramakant.
16. DW-1 is Sudha, the mother of the accused. She
deposed that the name of father of the victim is
Surendra Tiwari. He lives in her village. The age of the
victim, when her mother died was about 8 years.
Surendra Tiwari was habitual drunkard. The victim has
told this witness that her father makes physical relation
with her. She also told this witness that she is
pregnant. This witness has told this fact to some other
women of the village. Prior to this, the victim once also
got pregnant. As this witness has told the other ladies
of the village about the illegal physical relation of
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Criminal Appeal No. 5787 of 2013
(Ashish And Anr. vs. State of U.P.)
Surendra Tiwari with his daughter, being enraged,
Surendra Tiwari has falsely implicated her three sons in
this incident.
17. DW-2 is Satish Chandra, who deposed about the
physical relation of Surendra Tiwari with her daughter.
18. DW-3 is Ram Agnihotri, who also deposed about
the physical relation of Surendra Tiwari with her
daughter.
19. DW-4 is Navneet Mishra, who deposed that
although Surendra Tiwari is habitual drunkard, but he
denied about any physical relation of Surendra Tiwari
with her daughter.
20. DW-5 is Ramakant, who deposed that Surendra
Tiwari is habitual drunkard. This witness has further
stated that he heard that Surendra Tiwari is having
physical relation with her daughter, but he does not
have any personal knowledge about this fact.
21. After hearing the learned counsel for the parties,
the learned lower court convicted and sentenced the
accused as stated in para 1 of the judgement.
22. Feeling aggrieved, the accused have come up in
appeal.
23. Heard Shri Kamal Krishna, learned counsel for the
appellants, learned Additional Government Advocate for
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(Ashish And Anr. vs. State of U.P.)
the State-respondent and perused the lower court
record.
24. Learned A.G.A. has submitted that the findings of
the fact recorded by the trial court is based on evidence
of the prosecutrix and that no corroboration is required
when the testimony of the prosecutrix is clear, cogent
and convincing. He has further contended that there is
nothing to show that the prosecutrix has falsely
implicated the accused. Thus, the appeal is liable to be
dismissed.
25. It has been submitted on behalf of the appellants
that there is inordinate delay in lodging the first
information report, inasmuch as the date and time of
the occurrence is not known, whereas the report was
lodged on 03.08.2011 at 1705 hrs. But there is delay
since as per the version of the victim, she became
pregnant. Obviously, she would have had sexual
relations much prior to the date of incident but report
was lodged after her pregnancy which casts a shadow
of doubt on the prosecution case.
26. Per contra learned A.G.A. has submitted that in
the cases of rape, the delay in lodging the first
information report is not of much consequence because
repute of the family is at stake. Therefore, the
inordinate delay in lodging the first information report
against the appellants is fatal to the prosecution case.
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Criminal Appeal No. 5787 of 2013
(Ashish And Anr. vs. State of U.P.)
This vital aspect regarding inordinate delay in lodging
the first information report not only make the
prosecution case improbable to accept but the reasons
and observations made by the trial court in the
impugned judgment is wholly untenable in law and the
same cannot be accepted. Thus, there is inordinate
delay in lodging the first information report, which
casts a shadow of doubt on the complete prosecution
case.
27. It is trite law that in cases of rape, if the testimony
of the prosecutrix is reliable and trustworthy, the Court
does not search for support from any evidence. In
(2009) 15 Supreme Court Cases page 566,
Tameezuddin @ Tammu vs. State of (NCT) of
Delhi, in which it has been laid down that it is true that
in a case of rape the evidence of the prosecutrix must
be given predominant consideration, but to hold that
this evidence has to be accepted even if the story is
improbable and belies logic, would be doing violence to
the very principles which govern the appreciation of
evidence in a criminal matter.
28. Keeping in view this aspect of the matter, I would
examine the statement of the victim PW-2 in which she
has stated that all the three accused are real brothers.
Although, it is impossible but in delicate relations like
real brothers, it would be extremely difficult for three
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(Ashish And Anr. vs. State of U.P.)
real brothers to rape one girl simultaneously or one
after the another at the same spot. The victim has
stated that due to fear, she did not narrate the incident
of rape committed by Baoua, Ashish and Rinku to
anybody because they had threatened to kill her. She
has further stated the accused wanted to get her
aborted. She has subsequently admitted that she gave
the birth to baby girl who is in the orphanage. She has
stated that on the date of occurrence, her father and
brother had gone to see Ramleela. She was alone in
the house. Baoua, Ashish and Rinku entered her house
and raped her. Like all the witnesses, this witness has
too had undergo the test of cross-examination, in which
she revealed a new fact stating that even prior to this
incident, she was raped by Baoua, Ashish and Rinku
which was before 10 to 15 days back. But she has
stated this first incident to the Magistrate. The
statement of the victim was recorded under Section
164 Cr.P.C. is Exhibit Ka-2, in which she has stated that
Baoua, Ashish and Rinku came to her house. They tied
her mouth with Dupatta and raped her. This was done
during the Navratri and even 2 to 3 days prior to the
Navratri Ashish and Rinku had raped her. If the month
of Navratri is calculated, generally it is in the month of
April. Thus the date of occurrence, if calculated, comes
to the first week of April. But when this witness was
medically examined by Dr. Anita Singh whose medical
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Criminal Appeal No. 5787 of 2013
(Ashish And Anr. vs. State of U.P.)
report is Exhibit Ka-11 on 10.08.2011, the victim was
found 26 weeks pregnant. Meaning thereby, she was
pregnant for about 6 months and two weeks which
does not tally with the time stated by the victim who
has tried to give an improvement by saying that she
was obviously also raped by the accused persons. If as
per the version of the victim, she was raped
somewhere in April 2011, the tenure of pregnancy
would have been around about 4 months and not six
and half months. Thus, the whole prosecution story
falls like a heap of cards.
29. Coming to the statement of the victim, she has
further stated that she was raped 10 to 15 days prior
also was not revealed by her in her examination-inchief.
Thus, the statement of the victim PW-2 neither
inspires confidence nor is worthy of credence and infact
is untrustworthy.
30. As far as the statement of PW-1, the father of the
victim is concerned, he has stated that his daughter
was raped when he had gone to see Ramleela. She was
raped by Baoua, Ashish and Rinku but his daughter did
not reveal the incident to anybody, since when was
threatened. When rumors flew around the village that
the girl was five and half months pregnant, then he
asked the girl and then she narrated the incident to her
father. Obviously, this is something which could not
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Criminal Appeal No. 5787 of 2013
(Ashish And Anr. vs. State of U.P.)
have been hidden by the girl as one day or the other
her physical appearance would also have revealed the
whole picture. He has stated that when he used to go
to the police station to inform the police, the accused
used to stop him on the way. This explanation is not
palatable. The father of the victim has stated that the
victim gave birth to a baby girl, in the orphanage. It is
only the victim, who could know that who is the father
of the baby girl. It is strange as to why the victim kept
mum for 5 to 6 months and did not revealed this fact to
any of her family members creates a shadow of doubt
on the prosecution case. Even if the victim was not
having mother. There was no reason why she could not
told her nearest relative lady or even to her father
since her personality was shattered. PW-1 Surendra
had admitted that the neighbourers used to take the
girl here and there for check up and used to take odds.
He has also admitted that one Ram Agnihotri took her
girl to take some eatable but he never asked Ram
Agnihotri why he used to take her girl without his
permission. The villagers told him about pregnancy of
the girl but who told him, he does not remember. But in
the next breath, he said that the sister-in-law (Bhabhi)
of the girl told him. He was told about the incident a
couple of days before lodging the first information
report, then he asked his daughter. A new theory was
introduced by this witness who has stated that all the
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Criminal Appeal No. 5787 of 2013
(Ashish And Anr. vs. State of U.P.)
three accused i.e. Baoua, Ashish and Rinku had muffled
there faces and entered her house but she could
recognize them from their voices. When the victim was
specifically asked, she stated that baby girl was born.
The father of the baby girl was either Ashish or Baoua.
The child would either of Baoua, Ashish or Rinku. Her
father would be only one man. Thus, the victim herself
is confused.
31. Learned A.G.A. has submitted that the age of the
victim as per the medical is about 16 years, hence she
is minor but I think, since the statement of the victim
herself is not reliable, no useful purpose would be
solved by entering into the factum of age.
32. Thus, on what has been said and discussed above,
I find that the evidence of the witnesses have major
contradictions and the prosecution story is shaky,
unreliable, not worthy of credence. Thus, the
prosecution has miserably failed to prove the case
against the appellants and the appeal is liable to be
allowed.
33. Accordingly, the appeal is allowed.
34. The impugned judgment of conviction and
sentence dated order dated 24.10.2013 passed by the
learned Additional Sessions Judge, Court No. 6, Kanpur
Dehat / Ramabai Nagar in Sessions Trial No. 468 of
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Criminal Appeal No. 5787 of 2013
(Ashish And Anr. vs. State of U.P.)
2011 (State vs Ashish and others) arising out of Case
Crime No. 328 of 2011, under Sections 376, 506 I.P.C.,
P.S. Bilhor, District Kanpur Nagar is hereby set aside.
35. The appellants namely Ashish and Baoua are in
jail. They may be released forthwith in this case.
However, the appellants are directed to comply with the
provision of Section 437-A Cr.P.C.
36. Let the copy of this judgment be sent to the trial
court concerned.
Order Date :- 08.04.2016
Sazia/sailesh