Mrs. Ranjana Pandya, J.—Since all the three afore-captioned criminal appeals have been filed against the judgment and order dated 15.04.2014 passed by the learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Kanpur Dehat in Sessions Trial No. 140 of 2002 (State of U.P. v. Mahesh Chandra Gupta and others), hence they are being decided by this common order.
2. Challenge in these appeals is to the judgment and order dated 15.04.2014 passed by the learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Kanpur Dehat in Sessions Trial No. 140 of 2002 (State of U.P. v. Mahesh Chandra Gupta and others), arising out of Case Crime No. 189 of 2002, under Sections 343, 368, 376 and 506 IPC and Section 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Police Station Sajeti, District Kanpur Nagar, whereby the accused-appellants Mahesh Chandra Gupta and Jagat Lal Sachan have been convicted and sentenced to six months'' imprisonment and a fine of Rs. 1000/- each under Section 343 IPC and two years'' imprisonment and a fine of Rs. 1000/- each under Section 506 IPC and accused-appellants Mahesh Chandra Gupta, Jagat Lal Sachan and Mahaveer Chamar have also been convicted and sentenced to two years'' imprisonment and a fine of Rs. 2000/- each under Section 368 IPC and ten years'' imprisonment and a fine of Rs. 5000/- each under Section 376(2)(g) IPC with default stipulation.
3. The brief facts giving rise to the present appeals are that an application was given by the informant Ram Sajiwan to the Commissioner, Scheduled Castes and Scheduled Castes Tribes, Commission, Lucknow to the effect that the informant is the resident of Kanpur Dehat and belongs to scheduled caste. On 02.06.2002, he along with other family members had gone to attend the marriage ceremony of his relative leaving his daughter, the victim in the house alone. On the same day, a Barat also came in the house of Ram Babu. Mahesh s/o Chin Buddha Bharbhuja, Jagat Lal s/o Girja Shanker Sachan, finding her daughter alone in the house, took her away forcibly on the point of country made pistol. When he returned to his house, he did not find his daughter. Thereafter, he made a search at the house of his relatives and friends, but she could not be traced out. He informed the village Chaukidar about this incident at 02:00 in the night. In the morning, the informant went to the police station and handed over a written report at the police station. However, he continued the search of his daughter. On 04.06.2002, Mahgu and Kesan, resident of his village, had gone to Kanpur civil court where they saw his daughter(the victim) along with the aforesaid accused-persons. The victim was fearful. On being told by them, the informant informed the police. In the meantime, on 06.06.2002, the victim returned her house. She told the informant that she had danger to her life and the accused left her outside the village. The informant informed this fact to the police, but as no action was taken by the police, he had given an application to the Commissioner, Scheduled Castes and Scheduled Tribes, Lucknow on 10.06.2002, which he proved it as Ext. Ka-1.
4. On the basis of the aforesaid information, first information report was registered at case crime No. 189 of 2002, under Section 364 IPC and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred as SC and ST Act) against Mahesh Chandra Gupta and Jagat Lal Sachan at Police Station Sajeti, District Kanpur Nagar.
5. As the case pertained to SC and ST Act, the investigation of the case was entrusted to Shri Kamlesh Dixit, Circle Officer, PW-4, who copied the written report and recorded the statement of the chik scriber. On 10.07.2002, he recorded the statement of the informant. On 12.07.2002, he copied the medical report of the victim. He inspected the spot and prepared the site plan, which was proved as Ext. Ka-2.
After recording the statements of the witnesses and after completing the necessary formalities, he submitted the charge sheet against the accused-persons Mahesh Chandra Gupta, Jagat Lal Sachan, Mahavir Chamar and Babli alias Ajay Kumar Sachan under Sections 343, 504, 506, 376, 368, 120-B IPC read with section 34 IPC and Section 3(1)(x) of the SC and ST Act, which was proved by this witness as Ext. Ka-3.
6. To bring home the guilt of the appellants the prosecution has examined as many as seven witnesses.
7. PW-1 is the victim of the case. She deposed that on the date of incident at about 9-10 p.m., she was lying near her house. There was some light of Diya. Her parents had gone to attend the marriage.
She was alone in the house. A Barat had also come in the village. She was lying in front of her house on the cot. It was the moonlight. First of all Mahavir came and awakened her. When she awakened, she saw that Mahesh and Jagat were standing. On being enquired by her as to what is the matter, Mahesh and Jagat asked her to come with them otherwise they will beat her.
When she tried to raise alarm, she was threatened on the point of country made pistol. They took her to the tubewell of Dayali, where they locked her and committed rape on her against her wishes. When they were committing rape, Mahavir was having a close vigil from the roof of the tubewell. They took her to Kanpur Naubasti where Babli met them. They took her to the room of Babli where again they committed rape on her.
Thereafter, they took her to civil court where they took her thumb impression on a blank paper. On seeing Kishan Lal, Mahgu and Ramesh of her village, the accused-persons ran away.
8. PW-2 is Ram Sajiwan, the informant of the case. He reiterated the version mentioned in the application given to the Commissioner, Scheduled Castes and Scheduled Tribes Commission, Lucknow.
9. PW-3 is Ram Asray, the village Chaukidar. He deposed that he belongs to scheduled caste and he is the Chaukidar of police station Sajeti. On 02.06.2002, Ram Sajiwan came to him and said that his daughter is missing and he has to lodge a report. This witness told Ram Sajiwan that he has low eye-sight and he would accompany him in the morning to lodge the report. In the morning Ram Sajiwan came to him and duo went to the police station and handed over a written report to the Station Officer. This witness further deposed that Ram Sajiwan told him that in the morning Mahesh and Jagat Pal had come and there is likelihood that they took the victim with them.
10. The evidence of PW-4, C.O., Kamlesh Dixit has already been discussed above.
11. PW-5 is Dr. Neeta Umashankar Dixit, who has medically examined the victim. She deposed that on 11.07.2002 she was posted at District Women Hospital, Kanpur as Medical Officer. On that date, she has medically examined the victim at 11.30 A.M., who was brought by C.P. 3351 Ram Kumar and C.P. 242 Usha Kamal. This witness further deposed that there was no mark of injury on the body of the victim. There was no injury on her private part. Hymen was old torn. Vagina was admitting two finger easily. Neither alive nor dead spermatozoa was found. She prepared the injury report in her handwriting and signature, which she proved as Ext. Ka-4. On the basis of the Radiological report, she prepared the supplementary report, which she proved as Ext-Ka 5. This witness further opined that no definite opinion about rape can be given as the victim was habitual of intercourse.
12. PW-6 is Dr. Ashok Bajpai, the Radiologist, who conducted the X-Ray of the victim. He proved the X-Ray report as Ext. Ka-6 and X-Ray plate as material Ext. 1.
13. PW-7 is S.I., Satendra Kumar, who proved the chik FIR as Ext. Ka-7 and relevant GD entries as Ext. Ka-8.
14. After close of the prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., in which they denied the occurrence and produced Kishan Pal as DW-1 in their defence.
15. Kishan Pal, DW-1 has stated that he knows Ram Sajiwan and his daughter, the victim. On 04.06.2002, he had gone to the civil court along with his grandfather in connection with a case. On his asking as to who are with you, she told him that she is alone.
She told this witness that Ram Sajiwan, PW-2 is her step father. He was marrying her with an old man after taking Rs. 20,000/-. On her refusal to marry with the old man, he beat her and she has come here to make a complaint to the Superintendent of Police.
16. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 2 of the judgement.
17. Feeling aggrieved, the accused have come up in appeal.
18. Heard Shri Mayank Kumar Gupta, learned counsel appearing on behalf of the appellant Mahesh Chandra Gupta and Shri Awadhesh Kumar, learned counsel appearing on behalf of the appellant Mahaveer Chamar and Ms. Urvashi Jain, Amicus Curiae on behalf of the appellant Jagat Lal Sachan and learned Additional Government Advocate for the State respondent and perused the lower court record.
19. Learned counsel for the appellants have vehemently argued that the charges framed against the appellants have not been proved beyond all reasonable doubt. The conviction is based on inadmissible evidence and the appeals are liable to be allowed.
20. On the other hand, learned Additional Government Advocate has submitted that the findings of fact recorded by the trial court is based on evidence which is clear, cogent and convincing.
Hence, the appeals deserve dismissal.
(i) Delay in lodging the FIR
21. Learned counsel for the appellants has submitted that there is an inordinate delay in lodging the FIR. No explanation has been given for the delay. Hence, unexplained delay in lodging the FIR is fatal for the prosecution.
22. Perusal of the FIR, Ext. Ka-1 reveals that as per the FIR, the incident took place on 02.06.2002. The occurrence was reported to the village chaukidar in the intervening night of 02/03.06.2002. On 04.06.2002, Mahgu and Kesan Lal told the informant that they had seen the victim along with accused in the district court, Kanpur. On 06.06.2002, the victim came back home.
The application bears the date 10.06.2002, but there is nothing on record to elucidate that this application was actually sent by registered post or dasti to the Commissioner, SC/ST Act Commission, Lucknow. However, the informant PW-2 has stated that on 04.06.2002, Mahgu and Kesan Lal had told him at 8:00 p.m. that they had seen the victim at Kanpur court with Jagat and Mahesh. Even as per this witness, he has stated that on 6th June, 2002 when his daughter, the victim returned home, she narrated the whole incident to her father. Why the matter was not reported till 6th June, 2002 remained unexplained throughout the trial.
Besides, the village chaukidar was also examined by the prosecution, as PW-3 Ram Asarey, who has stated that on 02.06.2002 he was village chaukidar. The informant came to him and told that his daughter was missing and he wanted to lodge report. This witness asked the informant that he would come on the next day. On the next day, this witness accompanied the informant to the police out-check post. An application was given to the Sub-Inspector. But neither the prosecution has filed copy of the application nor the GD has been summoned to prove that such an application was actually moved or not. The informant Ram Sajiwan, PW-2 has stated that when he accompanied the chaukidar to the police station, his report was not lodged. Thereafter, he sent a report to the Lucknow Harijan Office. If, the informant had sent any report to the Harijan Office at Lucknow, there was no reason why the copy of the report was not filed. As per the record, typed copy of the application addressed to Commissioner SC/ST Act Commission, Indira Bhawan, Lucknow was got registered on 09.07.2002. The endorsement of the Commission which is also on 09.07.2002. There is nothing on record to show that this application was actually sent on 10.06.2002. There is no reason why father of the victim did not lodge a missing report when his daughter was missing since quite a couple of days. Thus, undue delay in lodging the complaint without acceptable evidence contributes the doubt in the prosecution case. In the present case also there is undue and unexplained delay on the part of the prosecution to lodge the report, which causes a dent in the prosecution case and make prosecution case doubtful.
(ii) Testimony of the prosecutrix and other prosecution witnesses
23. In AIR 2007 Supreme Court 155, Ramdas and others v. State of Maharashtra, it has been laid down that if the testimony of the prosecutrix is truthful and there exist no circumstances which cast a shadow of doubt over her veracity then the allegation can be based solely on the testimony of the prosecutrix.
24. As far as the testimony of the prosecutrix is concerned, the victim is PW-1, who has stated that at the time of occurrence, there was light of diya. Her father PW-2 Ram Sajiwan was also confronted with this position and he stated that at the place of occurrence a lantern was lighten. In cross-examination again he reiterated that a lantern was lightening near the place of occurrence. Thus, the source of light is different in the statements of the victim and her father PW-2.
25. As far as the occurrence is concerned, the victim has stated that she was alone at her house and it was the night of full-moon, whereas her father PW-2 Ram Sajiwan has stated that it was dark night.
26. The victim has further stated that initially Mahaveer came to her. When she woke up Mahesh and Jagat were also standing near her. Mahesh and Jagat showed her a country made pistol, on which the victim got frightened and accompanied them. Mahaveer, Mahesh and Jagat all the three took her near a tubewell and raped her in spite of resistance. Mahaveer was on the guard. This statement is not digestible because there was absolutely no reason for Mahaveer to be on the guard whilst the other were raping the victim because as per version of the victim, the tube-well was in a lonely place and room was locked and she could not raise any alarm. Hence, this assertion of Mahaveer being on the guard has no legs to stand. The victim has further stated that from the tube-well she was taken to Ghatampur railway line from where she was taken by truck to Naubasta, Kanpur. They went to the room of Babli, where Mahesh and Jagat raped her again. From there, they took her to the court, where her thumb impression was obtained on blank papers. She was taken to the court on 04.06.2002. In cross-examination, she stated that Mahaveer did not rape her nor Mahesh threatened her, even Babli did not threatened her, but Mahaveer was aiding the accused-persons. She was brought back from Kanpur by Mahaveer, Mahesh and Jagat. The victim has stated that since the last 2-4 days, she was having fever, hence she did not go to attend the marriage, whereas contradicting the victim, the father of the victim, namely, PW-2 Ram Sajiwan has stated that the victim had no business in the marriage, hence she was not taken. She was not sick. The statements of the victim and her father are totally in contradiction to each other.
The victim has further stated that hearing the sounds of fire, many people collected, but the accused took her with them and fled away.
27. As far as the presence of the victim at the court in Kanpur is concerned, even the victim had stated that when she went to the court on 04.06.2002, she met many police personnel and other people. The accused did not permit her to raise alarm. She told the counsel also that she had been enticed away, but he asked her not to speak like that. She also met Kishan Lal and Mahgu of her village at the seat of the advocate. She told them that she was kidnapped and enticed away by the accused and she requested them to take her to the village, but they refused and said that they would inform her father. One of the aforesaid witness whom the victim met at the seat of the advocate was Kishan Lal, DW-1, who has also stated that he met the victim in the court at the seat of the advocate. They asked the victim why she had come to the court and who accompanied her, at which the victim told him that she had come alone. She further told them that Ram Sajiwan, PW-2 is her step father, who wanted to marry her to an old man after taking Rs. 20,000/-. She told them that he also beat her. Hence, she had come to lodge a complaint against her father to the SP. This witness has further stated that he asked the victim to accompany the village. On which, she asked him that she would not come, but she would days after this, the victim went with the police to her father''s house.
The police scolded Ram Sajiwan, PW-2 and the victim was left at her father''s house. No doubt, this witness was discharged by the prosecution, but only because the witness was discharged by the prosecution will not be a ground to discredit the evidence of this witness as a defence witness. Thus, the version of this witness appears to be more correct because even the prosecution has come up with the stand that the victim was seen at the court in Kanpur by DW-1 Kishan Lal and others.
28. Reverting back to the statement of the victim, even her recovery is doubtful, inasmuch as, she has stated that the police brought her back to her house. She went with the police on 06.06.2002 to her house where she met everybody. This is also the version of DW-1, Kishan Lal, who is said to have met the victim at Kanpur''s court, who said that the victim stated that she would take the police to her father''s house because he had assaulted her. She reiterated that she went along with the police person to her house. Contradicting this statement, her father Ram Sajiwan, PW-2 who has admitted himself to be the step father of the victim has stated that the girl was sitting in the village near the well from where his wife brought the victim. A boy of the village had informed him that the victim was sitting near the well. The victim was brought on 06.06.2002 by the mother to the victim to the house. The victim did not come on her own accord to her house. The cross-examination of this witness Ram Sajiwan, PW-2 was conducted on many dates. In the cross-examination conducted on 06.07.2005, the father of the victim contradicting his own statement has admitted and stated that ";g ckr lgh gS fd esjs ?kj esjh yM+dh iqfyl okys NksM+ x;s Fks ogkWa ij eSa o esjh iRuh FkhA" Thus, there is a contradiction in the version given by the victim in her statement and father of the victim in his statement.
29. The person who dictates the FIR can be contradicted with its contents. In this regard, the informant was questioned as to why Mahaveer was not named in the FIR, at which the informant has stated that since he was perturbed, he could not get the name of the appellant Mahaveer typed in the application.
Even, in the FIR, there is no allegation of rape and the statement of the victim was never recorded under Section 164 Cr.P.C.
30. Ms. Urvashi Jain, learned amicus curiae appearing on behalf of the appellant Jagat Lal Sachan has submitted that since the version of the prosecutrix is difficult to accept on its face value, the court has to search for direct or substantial evidence, by which the statement of the victim can be corroborated as has been laid down in 2012 (7) Supreme Court Cases 171, Narendra Kumar v. State (NCT of Delhi).
31. In the present case, the version of the prosecutrix is improbable, contradicting to the statement of her father and the statement of both daughter and father belies logic.
32. Learned counsel for the appellants have also submitted that step father of the victim was trying to get her marry to an aged man and due to this, the victim left her house on her own accord, which had substantiated and corroborated by evidence on record.
Although, the victim PW-1 has denied these averments, but Ram Sajiwan PW-2, step father of the victim has stated that in the year 2002, he had settled the marriage of his daughter with the son of his sister, but he called off the marriage because the age of the boy was too much and the name of the boy was Adhya Sagar. As has been stated earlier, although the victim has denied arrangement of any such marriage, but village chaukidar, PW-3, Ram Asraey has specifically stated that ";g ckr lgh gS fd mldh ''kknh cw<+s vkneh ds lkFk gks jgh Fkh blfy;s og yM+rh Fkh o dgha pyh x;h FkhA"
33. There is broad principle that the prosecution has to prove its case beyond all the reasonable doubt which equally applies to rape cases also and there can be no presumption that the prosecutrix would tell the entire story truthfully always.
34. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parents has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case as has been laid down by the Hon''ble Apex Court in Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57.
35. Another glaring feature in this case is that step father of the victim has, in so many words, admitted that he lodged the report, which was typed by a man, who was told by his relative, who told him that the girl would get money after this case. He admitted and said that "eq>s ml fj''rsnkj vkneh us crk;k Fkk fd bl eqdnesa ds ckn ljdkj gekjh yM+dh dks iSlk nsxhA eq>s dqN iSlk djhc 25000@& dh psd vkbZ Fkh ftlesa ls 24500@& eq>s feyk Fkk 500@& cSad esa [kkrk [kqykbZ dk fy;k FkkA y[kum dk vkneh gekjk fj''rsnkj ugha FkkA eSa ugha crk ldrk fd og vkneh ogkWa ij ukSdjh djrk Fkk ;k ugha" Thus, it appears that all the exercise was just done to obtain financial aid from the Government.
36. As per statement of Dr. Neeta Umashankar Dixit, PW-5, the victim did not sustain any external or internal injuries on her body. Thus, the medical evidence does not support the prosecution version because if she would have been forcibly raped by two people, there would definitely have been swelling or any other injuries on her body. PW-5, Dr. Neeta Umashankar Dixit has medically examined the victim.
As per supplementary medical report, proved by this witness as Ext. Ka-5, the age of the victim was about 18 years, hence definitely she was above the age of consent at the relevant date. Although, the factum of rape has not been proved beyond all the reasonable doubt. In cross-examination, Circle Officer, PW-4, Kamlesh Dixit has stated that the victim had told him in her statement that she came on foot in the evening to her house. She also stated that the accused-persons dropped her by truck near the village road and threatened to her.
37. The whole prosecution story is unreliable, belies logic and the learned trial court misled itself in relying upon the evidence of prosecution witnesses, which are contradictory to each other, which does not inspire confidence. The complete testimony of the victim being unworthy of credence, unreliable and bundle of lies could not have form the basis for the conviction of the accused on the basis of illegal and inadmissible evidence.
38. Thus, what has been stated and discussed above, I conclude that the prosecution case is a bundle of false allegations and improbable facts, due to which the learned trial court misled itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed.
39. Hence, the impugned judgement and order of conviction and sentence dated 15.04.2014 passed by the learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Kanpur Dehat in Sessions Trial No. 140 of 2002 (State of U.P. v. Mahesh Chandra Gupta and others), arising out of Case Crime No. 189 of 2002, under Sections 343, 368, 376(2)(g) and 506 IPC, Police Station Sajeti, District Kanpur Nagar, is, hereby, set-aside as against the present appellants.
40. Accordingly, the appeals are allowed.
41. The appellants-Mahesh Chandra Gupta, Mahaveer Chamar and Jagat Lal Sachan are in jail.
They shall be released forthwith unless wanted in any other case. However, the appellants are directed to comply with the provisions of Section 437-A Cr.P.C. forthwith.
42. Let a certified copy of this order be sent to the Trial court concerned.
