HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved CRIMINAL APPEAL DEFECTIVE No.855 of 2014 [ENTITY], son of [ENTITY], resident of village Sarosa, P.S. Sandana, District Sitapur. Appellant Vs. [ENTITY] opposite party xxxxx Hon'ble [ENTITY]-II,J.
1. Heard Shri [ENTITY], learned counsel for the appellant, learned AGA and perused the record.
2. Instant appeal has been preferred against the judgment and order dated 23.1.2013 passed by the learned Additional Sessions Judge, Court No. 6, Sitapur in [CASE NUMBER], State Vs. [ENTITY] , arising out of [CASE NUMBER] under [SECTION] and [SECTION] [ACT], Police Station Sandana, District Sitapur, whereby the trial court has convicted and sentenced the accused appellant [ENTITY] under [SECTION] [ACT] for rigorous imprisonment of five years and a fine of Rs. 1,000/-, with default stipulation of rigorous imprisonment of fifteen days, under [SECTION] [ACT] for rigorous imprisonment of seven years and a fine of Rs. 1000/- with default stipulation of rigorous imprisonment of fifteen days, under [SECTION] [ACT] for rigorous imprisonment of two years and under [SECTION] [ACT] for rigorous imprisonment of ten yeas and a fine of 5,000/- with default stipulation of rigorous imprisonment of two months. It was ordered that all the sentences shall run concurrently.
3. According to the prosecution version, a First Information Report (in short FIR) was lodged by complainant [ENTITY] on 12.3.2011 at about 5.15 p.m. stating that his daughter victim aged about 15 years had gone to meet the call of the nature on 9.3.2011 at about 5.00 a.m. The accused appellant [ENTITY] son of [ENTITY] kidnapped her. [ENTITY], brother of complainant and [ENTITY] have seen the occurrence.
4. A case under [SECTION] and [SECTION] was registered against the accused appellant at [CASE NUMBER] at Police Station Sandana, District Sitapur. Investigation was handed over to HCP Raj Kishore. On 25.3.2011, the victim was recovered by the police alongwith the accused from Sidhauli-Mishrikh Road on the turn of a road towards Godalamau. Victim was handed over to her parents. Accused was arrested. Thereafter victim was medically examined on 1.4.2011. Site plan was prepared by the investigation officer. After recording the statements of witnesses, charge-sheet under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] was submitted against the accused appellant.
5. Accused was charged under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT], who denied the charges and claimed trial.
6. In order to prove its case, prosecution has produced P.W.1 [ENTITY], P.W. 2 victim, P.W. 3 Dr. [ENTITY], who has conducted the medical examination of the victim and prepared the medical report Exts. Ka-4 and 5, wherein it was reported that the hymen was old torn and healed. Vaginal smear was taken and slide was prepared and sent for pathological examination. On the basis of X-ray report, the age of the victim was assessed as 18 years. Radiologist has also reported the age of the victim as 18 years. P.W. 4 Constable [ENTITY], the scribe of the FIR, P.W. 5 Dr. [ENTITY], who has done the X-ray of the victim and P.W. 6 [ENTITY], investigating officer.
7. In the statement under [SECTION] [ACT] , accused has stated that he has been falsely implicated due to enmity. He has further stated that the victim was major at the time of incident.
8. After appreciating the evidence on record, learned trial court has recorded a finding that there is no delay in lodging of FIR. Learned trial court has also recorded a finding that the victim was aged about 16 years. Learned trial court has disbelieved the medical report. The learned trial court has also not accepted the defence version that the victim is a consenting party, rather it is held that the victim was forcibly taken away by the accused, who has committed rape with the victim. Accordingly, the accused was held guilty and sentenced for the charges levelled against him.
9. Learned counsel for the appellant submits that the finding of the learned trial court is per se illegal. There is evidence on record to show that the victim was major at the time of incident. It is further submitted that the recovery of the victim is not proved, hence the story of the prosecution becomes doubtful.
10. Learned counsel has placed reliance upon [ENTITY] Vs. State of Uttar Pradesh, (2015) 7 SCC 272. It is further submitted that the radiological age of the victim should be accepted. Benefit of the margin should have been extended in favour of the accused. It is further submitted that the statement of the prosecutrix is such, which does not inspire confidence, as she has admitted that when the accused has forcibly taken away her on the date of incident, she was sitting on the carrier of the bicycle, it was very easy for her to got down from the bicycle. Further she was taken in the train, but she did not make any attempt to rescue herself or to invite the attention of co-passengers by shouting or by making any other efforts. Hence, the conduct of the victim itself shows that she was a consenting party. Since she was major, no offence is committed by the accused-appellant.
11. Per conra, learned AGA has submitted that the learned trial court has recorded a finding that the victim was minor at the time of incident. Her age has been assessed as 16 years. Her statement could not be equalized as a statement of accomplice, rather the statement of the victim should be placed on a higher pedestal as she is the only witness of the incident, who had suffered due to the incident. It is further contended that when the defence has taken a plea that prosecutrix was a consenting party, then the burden lies upon the defence to show as to how she was a consenting party?
12. FIR was lodged on 12.3.2011, wherein it is stated that the victim eloped on 9.3.2011. Names of [ENTITY], who is the brother of complainant- [ENTITY] and one [ENTITY] are mentioned, who have seen the victim while she was being abducted by the accused.
At the very outset, prosecution has produced only P.W.1 [ENTITY] (Complainant), who is father of the victim and P.W.2 victim herself. No other witnesses have been produced. No explanation has been given as to why [ENTITY] is not produced.
13. At this stage, firstly I will consider the point of delay in lodging the FIR, when the complainant was knowing this fact that the accused has kidnapped her daughter then why he waited till 12.3.2011 for lodging FIR, although it is true that in the case of kidnapping and rape, delay itself is not very material, as has been held by Hon'ble the Apex Court in paragraph 15 of [PRECEDENT] as under:-
"15. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in [PRECEDENT] ."
14. It is also held by Hon'ble the Apex Court in the case of [ENTITY] (Supra) in paragraph 21 as under:-
"21. It is apt to mention here that in rape cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle. But, a pregnant one, applying all these allowances, in this context, it is apt to refer to the pronouncement in [PRECEDENT] wherein in the facts and circumstances of the said case, delay of 11 days in lodging the FIR with the jurisdictional police was treated as fatal as the explanation offered was regarded as totally intenable. This Court did not accept the reasoning ascribed by the High court in accepting the explanation as the same was fundamentally erroneous."
15. Coming to the facts of the present case although there is delay of three days, but circumstances of the case are such, I do not find that delay has been duly explained. P.W.1 [ENTITY] has admitted that his brother has seen the victim going with accused. An attempt is made to explain the delay by stating that he had given an application to the police on the date of incident, but the report was not lodged. It is further stated that a typed application was given, but there is nothing on record to show that any such application was ever given, rather P.W.1 [ENTITY] has admitted that on the date of incident, witnesses have told him that they have seen the victim being abducted by the accused. In such circumstances, delay in lodging FIR is not properly explained by the prosecution.
16. In FIR, age of the victim is mentioned as 15 years. Victim herself was produced in court as P.W.2 who has stated her age as 20 years and stated that the occurrence took place about one and half years back, meaning thereby that she herself has stated that she was more than 18 years of age at the time of incident. P.W.3 Dr. [ENTITY], who has medically examined the victim, has opined that she was more than 18 years of age. P.W.5 Dr. [ENTITY], Radiologist has conducted the X-ray of the bones of the victim to assess the age on the basis of the fusion. He has also opined that the age of the victim was above 18 years. Victim herself has stated her age more than 18 years. Although in FIR, P.W.1 [ENTITY] (complainant) has stated that the age of the victim was 15 years, but this statement could not find support from the medical evidence. There is no other evidence on record which may disprove the radiological age of the victim. Victim herself has stated that her age is above 18 years, which finds support from the statement of the doctors. Hence, the age of the victim was above 18 years on the date of incident. The learned trial court has wrongly held the age of the victim as 16 years. It is settled legal position that if two views are possible on an issue, court shall accept the view which is in favour of the accused.
17. According to the prosecution version, victim was kidnapped on 9.3.2011 at about 5.00 AM. According to P.W.2 victim, she went to meet the call of the nature at about 3.00 AM in the field of [ENTITY], while the accused came from behind and caught hold her and took her. If the prosecution version and the contents of FIR are believed that [ENTITY], brother of the complainant (real uncle of the victim) had seen the victim being abducted by the accused in the wee hours, then why he did not raise any alarm or made any attempt to stop them? Why he has not been produced in evidence? No explanation could have been given by the prosecution.
18. In [PRECEDENT]'s case (supra) Hon'ble the Apex Court has laid down the powers of the appellate court referring to the cases of [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT].
19. Hon'ble the Apex Court has referred para 7 of a three-Judge Bench judgment in [PRECEDENT], wherein it was held in paragraph 25 that:
"7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is excepted to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."
20. Hence, the powers of appellate court are not restricted rather the appellate court must have to record reasons why it is accepting or rejecting the evidence on record? Proper appreciation of vital evidence has to be made.
21. In view of the aforesaid legal position, now evidence is to be re-appreciated. At this stage, evidentiary value of the evidence of the prosecutrix is also to be kept in mind. In catena of judgments of Hon'ble the Apex Court has laid down the principles regarding evidentiary value of statement of prosecutrix.
22. In [PRECEDENT], it was held referring to Mohd. Ali v. [ENTITY] , (2015) 7 SCC 272 (paragraph 30) wherein it was held as under:
"16. The learned counsel for the respondent further relied upon Mohd. Ali v. [ENTITY] [Mohd. Ali v. [ENTITY], (2015) 7 SCC 272 : (2015) 3 SCC (Cri) 82] , wherein this Court recently held as follows: (SCC p. 282, para 30) "30. True it is, the grammar of law permits that 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."
23. In [PRECEDENT], it was held in paragraph 34 as under:
"34. This Court in [PRECEDENT] , while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in [SECTION] of the [ACT], was extremely restricted in its application compared to the sweep and ambit of the presumption under [SECTION] and [SECTION] of the [ACT]. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."
24. In [PRECEDENT], it was held in paragraph 12 as under :
"12. To insist on corroboration except in the rarest of rare cases is to equate one 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 claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. (See [PRECEDENT] .) Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance."
25. Further, in the case of [PRECEDENT] (supra) it was held in para 30 as under:-
"30. True it is, the grammar of law permits that the testimony of a presecutrix 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 "
26. It has already been held that at the time of incident, victim was above 18 years of age. According to P.W.2 victim, she went to meet the call of the nature at about 3.00 AM in the field of [ENTITY]. She informed her parents but she was not accompanied by anyone. She tried to make an explanation that since it was a moon light, she did not ask anyone to accompany her. Accused is residing in front of the house of the victim. Surprisingly, it is stated by the victim P.W.2 that when she left her house at 3.00 AM to meet the call of the nature, accused was standing at the door of his house. How it could be possible? It is a strong circumstance to indicate that it was not a case of kidnapping or abduction, rather it supports the defence version that the victim was a consenting party. Further P.W.2 victim states that the accused took her to village Dharuali Purawa, which is about 4-5 kos' i.e. above 10 Kms. from her village. In between, they crossed 3-4 villages on a bicycle. She was sitting on the carrier of the bicycle. If it was so and the victim was sitting on the carrier of the bicycle and travelled for 4-5 kos' i.e. about 10 kms, she did not make any attempt either to run away or to make a call to invite the attention of others while she reached village Sidauli at about 5.00 A.M. It was a month of March wherein in the rural background, villagers used to go to latrine early in the morning. This conduct itself is indicative of the fact that the victim was not taken away by the accused forcibly.
27. Further, the victim was kept in village Sidauli for 3 days in a room. She used to go to meet the call of the nature or latrine in the field, which is adjoining to the house of [ENTITY]. At that time, wife of [ENTITY] used to accompany her. Thereafter accused took her to Delhi by train. Both of them i.e. accused and victim went to the station on the bicycle of [ENTITY]. They reached at the railway station at about 6.30 pm. There was huge rush at the railway station but she did not raise any alarm. She reached Delhi. She stayed there in a rented room for about 8 days where wife of nephew of [ENTITY] used to bring cooked food for them. Nearby people were also living in different rooms. When she came to village Sidauli, she was recovered by the police. If this whole story is such, it could not be believed. Conduct of the victim is very material. No doubt, victim has been placed at a higher pedestal. Her statement does not require any corroboration, but at the same time, it could not be accepted that victim is always telling a gospel truth. Her statement is to be tested alongwith the attending circumstances. Her conduct is also to be seen. It cannot be said that merely on the basis of statement of the victim in each and every case, accused should be convicted. Each case depends upon its own facts.
28. Victim had an opportunity of raising alarm at every place. She was having full opportunity to run away from the custody of the accused. She could also have told her plight to other persons to whom she could have very well made a contact, but she did not make any attempt. I cannot accept the version of the prosecutrix, which is unreproachable. Testimony of the victim does not inspire confidence and the circumstantial evidence remotely does not lend any support to the same.
29. Theory of recovery of the victim is also not substantiated with the evidence on record. After about 15 days, all of a sudden, police party arrested the accused along with the victim. At the same time, parents of the victim were also present in the morning at about 8.00 AM. This itself raises a finger of doubt about the place and manner of the recovery which could not be believed, as has been held in the earlier part of the judgment.
30. Age of the victim was above 18 years. P.W.3 Dr. [ENTITY] has stated that no definite opinion about the rape could have been given. No mark of injury was found on the body of victim.
31. Evidence of P.W.1 [ENTITY] could not establish the theory of kidnapping. Testimony of P.W.2 victim is full of suspicious circumstances regarding the prosecution version which leave to only one un-resistible conclusion that the whole prosecution version is such which could not be believed. Charges as framed against the accused appellant could not be proved by the prosecution beyond reasonable doubt. Learned Trial Court has misled itself in appreciating the evidence on record.
32. Accordingly, appeal deserves to be allowed.
33. Consequently, appeal is allowed. Judgment and order dated 23.1.2013 passed by the learned Additional Sessions Judge, Court No. 6, Sitapur in [CASE NUMBER], State Vs. [ENTITY] , arising out of [CASE NUMBER] under [SECTION] and [SECTION] [ACT], Police Station Sandana, District Sitapur is set aside. Accused appellant [ENTITY] is acquitted of the charges under [SECTION], [SECTION] ,[SECTION] and [SECTION] [ACT]. Accused-appellant [ENTITY] is in jail. He shall be released forthwith if he is not wanted in any other cases.
34. Office is directed to certify this judgment to the Lower Court forthwith. Office is also directed to transmit the record to Lower Court forthwith for compliance.
35. Compliance report be submitted within four weeks.
Order Dated: 10.03.2017/GSY