Ram Ratan vs State of U.P.

K.S. Rakhra and R.K. Rastogi, JJ.—These are two connected criminal appeals u/s 374(2), Cr. P.C., against the judgment and order dated 26.7.2004 passed by Sri S. K. Pandey, Addl. District and Sessions Judge (Fast Track Court No. 2), Baghpat in S.T. No. 164 of 2000, State v. Ram Ratan and Anr., arising out of Case Crime No. 30 of 2000, Police Station Chandi Nagar District Baghpat whereby both the Appellants have been held guilty and sentenced to imprisonment for life and a fine of Rs. 20,000 u/s 376, I.P.C. and rigorous imprisonment for a period of five years and a fine of Rs. 2,000 for the offence punishable u/s 506, I.P.C.

According to the prosecution, on 20.3.2000 at about 3 p.m. Smt. Sunita, a young lady of 20 years wife of first informant Onkar Sharma P.W. 1 had gone to her field in Nagla Bahan to collect fodder for cattles. While she was preparing fodder at her field, the two Appellants Ram Ratan and Vidya Ram reached there and raped her one after another and gave her threat, not to disclose the incident to any one. This incident is said to have taken place in village Singauli within the circle of police station Chandi Nagar District Bagpat but the F.I.R. in the matter was registered at the police station of Baghpat as Crime No. Nil u/s 376, I.P.C. Later on the investigation was transferred to Police Station Chandi Nagar and case Crime No. 30 of 2000, was registered. On the written report given by Onkar Sharma P.W. 1, the F.I.R. was registered on 21.3.2000 at 4.30 a.m. In the said report Onkar Sharma, however, did not name Ram Ratan and Vidya Ram as the accused but the accusation was made against Babu son of Phool of village Sarfabad within the Police Station Chandi Nagar and an unknown person. In the F.I.R. it was stated that Babu aforesaid is the owner of field adjoining the field of first informant and that he was accompanied by an unknown person whom the prosecutrix would be able to recognise on being brought before her. According to the F.I.R. version Babu and his unknown companion committed rape one after another and gave threat that she would be killed if she discloses the incident to any body. It was further stated in the F.I.R. that on account of this sexual assault the physical condition of Smt. Sunita became critical and she was bleeding profusely. Her husband had taken her to G.T.B. Hospital at Delhi where he was advised by the doctor to take her back for medical examination and treatment at Baghpat itself. He requested for registration of the F.I.R. at Police Station Baghpat itself as it was difficult for him to go to Police Station Chandi Nagar to lodge the report because condition of wife as precarious. This report was registered as Ex. Ka-6.

Head Constable Jai Prakash Singh P.W. 6 was posted at Police Station Baghpat at the relevant time. He registered the chik F.I.R. and made entry in the general diary of Police Station mentioning that the first informant accompanied with his wife Smt. Sunita had come to the Police Station to lodge the report and that she was fully conscious and was referred for medical examination. The medical examination of Smt. Sunita was conducted by Dr. Deepa Agarwal P.W. 4 on 21.3.2000 at 4.55 a.m. The doctor had not found any external injury on the body of the prosecutrix although she had found bleeding in the vagina. She noticed tear on the right lateral wall of the vagina. She however referred the prosecutrix to P. L. Sharma Hospital/Dufferin Hospital for further examination. Dr. Manju Malik P.W. 5 medically examined Smt. Sunita on 21.3.2000 at 8 a.m. She could not however form a definite opinion about rape.

The investigation of this crime was taken up by Sri Faggan Singh P.W. 7 who after recording the statement of witnesses and collecting evidence found that the real culprits were Ram Ratan and Vidya Ram. He had produced the prosecutrix for recording her statement u/s 164, Cr. P.C. before a Magistrate wherein she made allegation of rape against the two Appellants and she did not make any allegation against Babu.

During the course of investigation on 25.3.2000 an affidavit of Smt. Sunita (Ex. Ka-2) was filed before Superintendent of Police, Baghpat wherein she made allegation of rape against Ram Ratan and Vidya Ram only. She further mentioned in the affidavit that after this incident she was not in position to speak and her condition was precarious. After she regained consciousness she came to know that her husband had, under some confusion, lodged the F.I.R. against Babu which was wrong.

Charge-sheet was filed against the Appellants on the basis of subsequent and changed version given by the prosecutrix u/s 164, Cr. P.C. and also through the affidavit dated 25.3.2000.

The Appellants denied their involvement. According to Ram Ratan, the other Appellant Vidya Ram is his uncle and Vidya Ram has taken stand that his father Hari Singh had contested Pradhani election against one Rakesh. This Rakesh is cousin brother of Babu son of Phool who was named as an accused in the written report Ex. Ka-2. It was alleged by him that under the influence of Rakesh, the police has excluded name of Babu and submitted charge-sheet against the present Appellants.

In order to prove the charge against the Appellants, the prosecution has examined eight witnesses in all. Out of them Onkar P.W. 1 is the husband of the prosecutrix and is the person who had lodged the report Ex. Ka-1. He is not an eye-witness of the occurrence and the report was lodged by him on the information received from his wife. In his deposition in the trial court he stated that this crime was committed by Ram Ratan and Vidya Ram. Giving explanation as to why the names of Appellants were not there and instead Babu was named as accused in the F.I.R. Ex. Ka-1, he stated that the prosecutrix was not in position to speak and therefore, she had pointed in the direction of the field of Babu Ram and fields of the Appellants. Since the field of Babu was nearer, he gathered an impression that she was pointing to Babu as an accused and therefore, he named Babu as an accused in the written report. Subsequently his wife, on gaining consciousness, disclosed to him that crime was committed by Ram Ratan and Vidya Ram and not Babu.

P.W. 2 Smt. Sunita is the victim herself. She has stated against the two Appellants, in her testimony before the trial court and has also claimed that she had become unconscious after the incident and that when her husband asked her as to what had happened, she could only point out towards tube-well of Babu although tube-well of Ram Ratan and Vidya Ram were also in the same direction.

P.W. 3 Rajendra runs a tea stall and prosecution claimed that he had stated in his statement u/s 161, CPC that some body had come to his tea stall to inform that Sunita was lying unconscious and was raped by Ram Ratan and Vidya Ram. He did not support the prosecution in the Court and was declared hostile.

The remaining five witnesses are formal witnesses. P.W. 4 Dr. Deepa Agarwal and P.W. 5 Dr. Manju Malik are the witnesses who conducted medical examination of Smt. Sunita on 21.3.2000 at 4.55 a.m. and 8 a.m. respectively. Head Constable Jai Prakash P.W. 6 is Police Constable who had registered the F.I.R. and recorded an entry in the G.D. of Police Station. P.W. 7 Faggan Singh is the Investigating Officer and Sri Himanshu Bhatnagar, P.W. 8 is the Magistrate before whom the statement of prosecutrix u/s 164, Cr. P.C. was recorded on 6.4.2000.

The accused persons in defence also examined one witness Faiyaz as D.W. 1. He has been examined to prove that the Appellant Vidya Ram is son of Hari Singh, Pradhan who had contested election against Rakesh but lost. This Rakesh who became village Pradhan is cousin brother of Babu who was named as an accused by the first informant in this case. He also stated that police had arrested Babu is connection with this crime and after keeping him in custody for 8-10 days had released him and falsely implicated Ram Ratan and Vidya Ram.

The trial court after considering the above evidence on record, has found the same to be reliable and supported by medical evidence and circumstances.

We have heard Sri P. N. Mishra, senior advocate assisted by Sri R. S. Saroj for the Appellants and Sri Hemant Kumar, learned A.G.A. appearing on behalf of the State and have gone through the evidence on record.

The argument of learned Counsel for the Appellants is that the prosecution story in this case is wholly unreliable because it was inconsistent throughout. In the initial stage the accusation was against Babu who was related to Pradhan Rakesh but later on under the influence of Rakesh the Police and the complainant changed their version and claimed that the sexual assault was made by Ram Ratan and Vidya Ram.

Learned Counsel for the Appellants did not dispute the factum of rape but pointing to various circumstances in support of his argument he submitted that it is a case where sole testimony of prosecutrix is not sufficient to hold the Appellants guilty. His contention is that the prosecutrix remained wholly conscious after the alleged incident and she was in a position to narrate true facts to her husband and since her husband lodged the F.I.R. after knowing description of incident from her he rightly named Babu and an unknown person as accused. Subsequent claims of the prosecutrix that she was raped by Ram Ratan and Vidya Ram is highly doubtful and cannot be believed.

Learned A.G.A. on the other hand argued that prosecutrix throughout in her statement, made allegation against Ram Ratan and Vidya Ram whose fields are near the field of prosecutrix and there is no reason as to why she would make false allegation against them. It was submitted that if under some confusion the husband named some wrong person in the F.I.R. as culprit then it should be ignored and prosecutrix version should be believed.

We have examined the evidence on record in the light of circumstances of the case and argument raised by two sides. In our opinion, the basic question for consideration in this case is as to whether at the time when P.W. 1 Onkar lodged the F.I.R. Ex. Ka-1 or prior to that when he had occasion to talk to his wife Smt. Sunita, was she conscious and in a position to speak. It is true that in an appropriate case sole testimony of prosecutrix may be sufficient to record conviction but it would be possible only when such testimony of the prosecutrix is wholly consistent and reliable. It is to be kept in mind that although Sunita gave a consistent version against the present Appellants in her deposition before the Court but the information given by her to her husband is also her previous statement, in relation to which the statement given later before the Court has to be examined and it is to be seen whether the two versions of the incident which she was giving were consistent with each other or not. On doing so we find that the two versions given by her one before her husband and Anr. before the Court during trial are wholly inconsistent and it is difficult to believe that the statement given before the Court by her was correct.

The circumstances of the case clearly go to show that the prosecutrix was conscious and was in position to speak and narrate the incident at the time when her husband lodged the F.I.R. In the circumstances of the case, it will be believed that the husband lodged the F.I.R. as per fact disclosed to him by the prosecutrix. Later explanation brought forward by him before the Court that she was unconscious or semi conscious and she had pointed her hand towards the tubewell or field of the Appellants and that since the tubewell of Babu was also there, the husband got confused and named Babu, is wholly unbelievable.

The reason is apparent from the F.I.R. itself. The F.I.R. Ex. Ka-2 shows that the named accused was Babu son of Phool but the F.I.R. does not stop there and states that she was ravished by Babu and Anr. unknown person. It is not clear as to how if the prosecutrix was unconscious the husband could make out that she was ravished by one Babu and Anr. unknown person. The F.I.R. further shows that unknown person can be identified by the prosecutrix if he is brought before her. This is a fact which would be only in the subjective knowledge of the prosecutrix and could not find place in F.I.R. unless the wife told it to her husband. From the F.I.R. it is very clear that there was no confusion at the time of lodging of the F.I.R. and the F.I.R. was lodged on the information gathered from the prosecutrix herself.

There are other circumstance and material on record to disprove the claim of the prosecutrix that she was unconscious and therefore, this error has crept in the F.I.R. It is significant to note that F.I.R. in the matter was lodged on 21.3.2000 at 4.30 a.m. the G.D. entry at serial No. 4 of Police Station Baghpat refers the fact that the prosecutrix had accompanied first informant. Head Constable Jai Prakash Singh P.W. 6 who made G.D. entry and registered the F.I.R. has categorically stated in his cross-examination before the Court that Sunita was wholly conscious when she came to the Police Station and was talking normally. She had told that she has been ravished. The statement of Jai Prakash Singh is again corroborated by the statement of Dr. Deepa Agarwal P.W. 4 who had medically examined Smt. Sunita at 4.55 a.m. on 21.3.2000 on the reference made by police. This doctor in the cross-examination stated that when the prosecutrix was brought for medical examination her condition was satisfactory and there was no external injury on her person. She was wholly conscious and was speaking normally. This testimony of the witness before the Court is corroborated by her observation made in the medical examination report Ex. Ka-4 wherein the general condition was noted to be satisfactory.

The above testimony is again corroborated by the testimony of Dr. Manju Malik P.W. 5 as she also stated that Sunita was wholly conscious and was talking normally when she appeared before the witness for medical examination at 8 a.m.

The statements given by above two doctors, their observations noted in the medical reports, testimony of head constable Jai Prakash Singh, entry made in the G.D. coupled with the manner in which F.I.R. describes the occurrence, leave no doubt in our mind that prosecutrix was in position to give complete version to her husband before he proceeded to lodge the report. In view of these circumstances, the fact that the husband named Babu as an accused in the F.I.R. Ex. Ka-1 and mentioned the fact that there was an unknown person also in the crime is a material contradiction against the version given by the prosecutrix in Court. We are of the opinion that possibility of false implication under the influence of village Pradhan Rakesh cannot be ruled out. In our opinion it is not a fit case where sole testimony of prosecutrix could be relied upon to record conviction. We are of the view that the trial court has failed to appreciate the circumstances and has come to wrong conclusion. The Appellants are entitled to be acquitted.

Both the appeals are allowed. The conviction and sentences of imprisonment and fine of Ram Ratan and Vidya Ram in S.T. No. 164 of 2000 are set aside. They are acquitted. They are in jail. In case Ram Ratan and Vidya Ram are not wanted in any other crime, they shall be released immediately.

Let a copy of this judgment be certified to the trial court for necessary action.