Santosh and Another Vs State of U.P.

Neutral Citation No. - 2023:AHC:176974-DB

Court No. - 46

Case :- CRIMINAL APPEAL No. - 655 of 2002 Appellant :- Santosh And Another Respondent :- State of U.P. Counsel for Appellant :- Sameer Jain,Deepak Singh Counsel for Respondent :- Govt. Advocate

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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Accused appellants, Santosh son of Babu Lal and Varun Kumar son of Pancha alias Pancham have been convicted in Session Trial No.235 of 1992 (State Versus Santosh and others) arising out of Case Crime No.344 of NIL under Sections 452, 380 and 376 I.P.C., Police Station Ghazipur, District Fatehpur and sentenced to undergo one year's rigorous imprisonment each under Section 452 I.P.C, one year's rigorous imprisonment each under Section 380 I.P.C. and to undergo imprisonment for life and to pay fine of Rs.10,000/- each under Section 376 I.P.C. In default of payment of fine, the accused shall also undergo imprisonment for six month R.I. each. All the sentences were directed to run concurrently.

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Informant, in the present case, is Suraj (PW 1) who has lodged the first information report on 30^th November, 1990, stating therein that on 28.11.1990 at about 3 p.m., in the afternoon, the informant along with his wife Smt. Chameli were on the roof, taking sun bath and his daughter (the victim) was looking after the household work at home. Three accused, namely, Santosh son of Babu Lal, Varun son of Pancha alias Pancham and Munna (barber) who is relative of Varun Kumar silently entered the house and took the victim inside the room where she was subjected to sexual assault by three accused turn-by-turn. The informant heard the screams of the victim and came down along with his wife and saw the accused fleeing. The informant tried to apprehend them and on his raising alarm, informant's brother Bhola, Thakur Ram

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Autar as well as Tondi, etc. came on the spot. The victim was weeping and was bleeding. On being asked, she informed about the incident and also disclosed that accused took away her earrings as also Rs.8,500/- kept in the house. The victim was alleged to be 13 years of age and had sustained injuries on her private parts. The informant alleged that he was busy in medical treatment of the victim and could not lodge the report earlier. He has ultimately come with the victim to the Police Station on 30.11.1990 and has made written report. On the basis of such written report, F.I.R. came to be lodged as Case Crime No.344 under Sections 452, 380 and 376 I.P.C., Police Station Kotwali, Sub-District Fatehpur, District Fatehpur. The investigation proceeded in the matter and the victim was got medically examined by the doctor. The statement of other witnesses were also recorded and X-ray, etc. were also conducted on the victim. Ultimately, the charge-sheet came to be submitted against the three accused under Sections 452, 380 and 376 I.P.C., Police Station Ghazipur, District Fatehpur. The Magistrate took cognizance in the matter and committed the case to the court of Session which was got registered as Session Trial No. 235 of 1992. The charges were read over to the accused who denied the accusations and demanded trial.

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The informant appeared as PW 1 and has supported the prosecution case. He has alleged that the victim had sustained injuries on her private parts and she has difficulty in moving. Her age was 13 years. He has further stated that though he visited Police Station Ghazipur for lodging the report, but the accused has blocked the way and were not allowing him to go to the Police Station. In the cross-examination, PW 1 has admitted that he has not made any formal effort for lodging the F.I.R. on the date of the incident and that he came to the Police Station only after three days. He had not taken the victim to the Police Station. He has further stated that he left the village after three days. Though he states that report was lodged before the S.P., but no such written report has been produced. He states that the S.P. sent him by the police jeep to the Police Station Kotwali. The written report was got scribed by Madan Lal. The witness was not known

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to the scribe from before nor can he recognize. The witness has denied the suggestion that report was lodged on the dictation of Police Inspector. PW 1 has stated that though he is literate but he could not write the report himself as his hands got burnt. He has further stated that the police came to the village after 4-5 days and has recorded statements of the witnesses whereafter the Investigating Officer returned. PW 1 has stated that he has not delivered the blood-stained clothes of the victim to the police as these clothes have been burnt. The witness has denied the suggestion that he is making a false statement as no bleeding, etc. was found on the clothes of the victim. He has explained that there are only two rooms in the house and apart from the victim there was nobody else present. He claims that when he heard the screams of his daughter and came down from the roof, the doors were found open and the victim was weeping. The witness has also denied the suggestion that Rs.450/- was due to the accused from him on account of which the accused have been falsely implicated. He has also denied the suggestion that his daughter was found in Village Suketi and that she has run away. A further suggestion has been made to PW 1 that in fact the victim had run away with someone else and only after she was found and brought back home, the report itself was belatedly lodged. Though the witness has stated that he was engaged in treatment of his daughter for two days, but no medical report or prescription of doctor, etc. has been produced. He has alleged that only tablets and ointment were given by the doctor. The doctor has not given any prescription. He has further stated that he saw the victim holding her Salwar which was torn and he had helped her in tying the Salwar. He has stated that those clothes were got burnt after 15 minutes by the boys. He has also stated that the bloodstained place was not shown to the Investigating Officer as floor has been swept by them. PW 1 has admitted that he has not seen the accused committing the offence and he has chased them for some distance. PW 1 has also denied the suggestion that the father of the accused Varun Kumar is Lekhpal and he has requested him to arrange some land for allotment,

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for which he incurred Rs.2000-2500/-, and after the land was not arranged, the accused have been falsely implicated in the present case.

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PW 2 is the victim who has identified the accused in the court. All the accused were resident of the same village. Accused Munna is related to accused Varun Kumar and he used to visit him. The victim had seen all the three accused who were friends. She has further stated that she was sweeping the floor and her parents were on roof, when the accused came inside the house. Santosh had gagged her while Varun Kumar had held her hands and Munna had held her feet, who physically lifted her inside the room. Santosh sexually assaulted first which was followed by Varun Kumar and Munna. PW 2 has stated that she started weeping and tried to raise alarm, but as she has been gagged, she could not scream and only when she got chance she screamed. The accused took away Rs.8,500/kept in the house along with golden earrings worn by her. In the crossexamination, PW 2 has stated that she belongs to Chudihar community (community that deals in sale, etc. of bangles). She studied upto Class-VI. In the cross-examination, she has denied that she was in love with a boy of Village Suketi and has run away with him. She has further stated that there are no stair in the house and only bamboo ladder is used to climb the roof. The ladder is placed outside the house. She has stated that towards east of her room is the room in which her grand mother lives. The other adjoining room belongs to her uncle. She has stated that she could not see the accused entering the house. She claims that the accused stayed about 1520 minutes and initially she had not screamed as the accused had gagged her mouth. The earrings were on screw and the accused unscrewed it. As soon as she raised alarm, the parents of PW 2 came from the roof. She has alleged that when her mother arrived, she was sitting, holding her Salwar. The victim's mother, about five minutes thereafter, asked PW 2 to take off her Salwar which was found torn. The victim wore another Salwar-Kurta. She has admitted that bloodstained clothes were not given to the police. She has denied the suggestion that she has run away with someone of Village Suketi and was brought back home by her father and uncle around

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9.00 p.m. and due to enmity the accused have been falsely implicated. PW 2 left for Surat after a month of the incident, she got married and has a daughter of eight months, when she appeared for her examination.

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Dr D.K. Sharma, Pathologist at District Hospital, Sadar, Fatehpur has appeared as PW 3 and has proved the supplementary report, as per which, there was no spermatozoa seen in vaginal smear.

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PW 4 is Dr Vijay Lakshmi Rajawat, who had conducted medical examination of the victim. In her testimony, PW 4 has stated that there was no external or internal injuries on the victim and her hymen was found old torn. There was no injury on the vagina. In her opinion, the victim was 17 years and she has not expressed any opinion with regard to the rape on the victim. On the basis of her medical examination, the doctor has opined that the victim was habituated to physical relations.

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PW 5 is Dr Harish Chand Sachan, who has conducted the X-ray on the victim and has proved X-ray report Ext. Ka-5.

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PW 6 is S.I. Damodar Singh, who has conducted investigation in the matter. He has alleged that no signs of any struggle or protest was seen on the place of occurrence. None of the blood-stained clothes were given to him.

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The incriminating material produced during course of trial against the accused was confronted to them for recording statement under Section 313 Cr.P.C. The two accused have denied the accusations made against them and have further stated that they have been falsely implicated on account of enmity.

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The trial court, on the basis of evidence placed on record during the course of trial, has found the statement of the victim to be reliable and has consequently returned the findings of guilt against the accused-appellants who have been convicted and sentenced as per above.

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On behalf of the appellants, it is stated that it is a case of false implication inasmuch as the medical examination of the victim does not

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corroborate the prosecution version of sexual assault upon her. Learned counsel has further argued that the prosecution case otherwise is also improbable inasmuch as the parents of the victim were present in the house and it would be difficult to imagine that three outsiders will enter the house and sexually assault the victim turn-by-turn, without any protest by the victim and that none would see the outsiders inside the house. Learned counsel further submits that the adjoining room where the offence is alleged to have been committed was occupied by the family of the uncle of the victim and her grand mother was also inside the same house. It is argued that entire prosecution case is based on imagination and that evidence on record, in no manner, supports the prosecution case.

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Per contra, learned Additional Government Advocate contends that the trial court has meticulously scanned the material on record and findings, arrived at by the trial court against the appellants, are clearly based on the evidence on record.

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Before proceeding any further, we may notice that one of the three accused who faced trial, namely, Munna, admittedly has died during the course of trial. Consequently, trial has resulted only in conviction and sentence of two surviving accused, namely, Santosh and Varun Kumar.

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We have heard learned counsel for the parties and have carefully perused the materials on record, including the records of trial court. The records reveal that the incident occurred at about 3.00 p.m. on 28.11.1990 inside the house of the informant. The prosecution case is that the first informant and his wife were having sun bath on the roof while the victim was sweeping the floor. It is, at this juncture, that the three accused allegedly entered the house and physically lifted the victim inside the room and committed sexual assault upon her one-by-one.

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At the very outset, we may refer to medical report of the victim which has been duly proved by the radiologist as also the doctor who had examined the victim. Dr Vijay Lakshmi Rajawat has been produced as PW 4. She is Senior Gynaecologist, posted at District Hospital and had

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examined the victim on 01.12.1990 at 10.45 a.m. The victim was brought by lady constable. In the medical examination, the doctor found no external or internal injuries on the victim. The hymen of victim was found old torn. In the opinion of doctor, the victim was used to physical relations. The doctor, moreover, has expressed no opinion on the allegation of sexual assault upon the victim. The radiological age of the victim has been found as 17 years and in the event of two years variance in the age, the age of the victim can very well be treated to be 18 years or above.

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The first circumstance that requires examination, in the facts of the present case, is as to whether the prosecution version, in respect of the incident, is credible and reliable or not. So far as medical evidence on record is concerned, the opinion of the doctor in no manner supports the prosecution case. No external or internal injuries had been found on the victim. The first circumstance which goes against the prosecution is that in the event a young girl of 13-14 years is subjected to sexual assault by three accused turn-by-turn, against her wishes, some sort of injury by protest is expected to be reported in the medical examination. The fact that medical report does not support the plea of sexual assault is a circumstance which is to be noticed first.

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The prosecution case otherwise is that the parents of the victim were in the house, taking sun bath at the roof. The evidence on record clearly shows that the family of informant's brother lives in the adjoining room and even the grand mother of the victim lives in the same house. It appears somewhat difficult for us to accept that in the presence of all the family members an incident of this kind would occur at 3.00, in the afternoon, wherein three strangers would enter the house and commit the act of sexual assault on a minor victim, one-by-one, without any one noticing the incident or the victim herself raising the scream and alarm. The prosecution witnesses clearly admitted that the door of the room was open where the sexual assault was committed. No other family members have been produced by the prosecution, except the victim and the informant. Although the F.I.R. alleges that informant's brother Bhola, Thakur Ram

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Autar as well as Tondi, etc. have also arrived at the place of occurrence and had seen the accused fleeing from the place of occurrence, but none of these independent persons have been produced by the prosecution.

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The testimony of the victim has been examined by us and we find that she has clearly stated that when the last accused, namely, Munna committed sexual assault on her, she raised alarm. It is on hearing her scream and alarm that the parents of the victim allegedly came down from the roof. As per the victim, despite such alarm having been raised by her, the accused Munna continued the act of sexual assault on the victim for 5- 6 minutes. This statement of the victim sounds somewhat unusual, particularly when the house of the informant is small and in the adjoining room the brother of the informant and his mother lived.

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The prosecution witnesses have categorically stated that the victim was bleeding from her private parts on account of act of assault by the three accused. However, the blood-stained clothes had not been taken in possession nor has been produced before the trial court. The reason for non-production of such blood-stained clothes is interesting. As per the prosecution case, the mother of the victim, nearly five minutes of the incident, asked the victim to give her Salwar to her which was torn. We find absolutely no justification or rationale for such a conduct on the part of the mother of the victim. The victim has further stated that after she changed her Salwar, the blood-stains had appeared on the changed Salwar also, but even that Salwar was not given by her to the Investigating Officer. The Investigating Officer, in his testimony, has, however, stated that no evidence of any blood-stains on the clothes of the victim had been collected during the course of investigation. The Investigating Officer stated that the victim has also changed her clothes and he had not seen previous clothes worn by the victim which contained blood-stains. In the facts of the case where the testimony of prosecution witnesses does not find any corroboration from the medical evidence, the fact that bloodstained clothes had not been collected or produced before the trial court, assumes importance. Apart from the victim and the informant, no other

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person has come forward to support the prosecution case. The victim, although claims that the accused had held her hands and legs and on account of use of force she could not raise alarm, but no signs of struggle or injury has been found by the doctor during the medical examination.

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Learned counsel for the appellants submits that this is case of false implication on account of the fact that certain amount was due and payable to the accused Santosh and the informant wanted to avoid repayment of such amount.

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We also find the testimony of the victim unreliable, when she states that her golden earrings were taken off by the accused and that a sum of Rs.8,500/- was also stolen from the house by the accused. The victim has not been able to explain as to where this amount of Rs.8,500/- was kept. The incident has occurred in year 1990 and the sum of Rs.8,500/- was not a small amount. We further find that the allegation of taking away the golden earrings which were tighten on screw, also seems improbable. There are no mark of injury in the ears of the victim.

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Upon overall evaluation of the evidence on record, we find that the defence version of the victim, having eloped with someone else, has been probablized, inasmuch as the fact that the F.I.R. itself has been lodged after three days of the incident, is also a circumstance which supports such plea of the defence.

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Since the testimony of the victim is not found credible and reliable and her allegation of sexual assault is otherwise not supported by the medical evidence or any other independent evidence, as such, in our opinion, the accused-appellants are entitled to the benefit of doubt.

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The trial court has not carefully examined the testimony of the witnesses. The material contradictions in the version of the victim have been overlooked, merely by observing that such lapses are minor in nature based on the fact that medical evidence has not supported the allegation of gang-rape and the absence of any independent corroboration clearly raises doubt on the prosecution, has been overlooked. We also do not approve the

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reasoning assigned to accept prosecution case, by referring to the prosecution evidence with regard to the commission of offences under Sections 452, 380 and 376 I.P.C. only on the ground that such allegations are contained in the prosecution case whether these allegations are actually supported by the evidence on record, has not been evaluated.

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In view of above of discussions and deliberations, we are of the view that the conviction and sentence awarded to the two accused-appellants, in the facts of present case, can not be sustained. Consequently, the findings of the guilt, returned against the accused-appellants, are reversed. The appeal succeeds and is allowed.

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Accused-appellants-Santosh son of Babu Lal and Varun Kumar son of Pancha alias Pancham, who are on bail, therefore, their bail bonds shall be discharged. They need not surrender. They shall file personal bond and surety bonds in compliance of Section 437A Cr.P.C. to the satisfaction of trial court within a period of four weeks.

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The office is directed to transmit the lower court record along with a copy of the judgement to the trial court which shall ensure the compliance.

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Order Date :- 12.9.2023 MN/-

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Digitally signed by :- MAHENDRA NATH High Court of Judicature at Allahabad

Santosh and Another v. State of U.P.

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Santosh and Another v. State of U.P.

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