CRLA/449/2013 of Neeraj Saini Vs State Of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.449 of 2013

Neeraj Saini

Versus

… Appellant

State of Uttarakhand

… Opposite Party

Mr. Piyush Garg & Mr. R.S. Sammal, Advocates for the appellant. Mr. V.K. Jemini, Dy. Adv. General (Cri.) for the State/opposite party.

Mr. Vivek Shukla with Mr. Bhuvnesh Joshi, Advocates for the complainant.

Hon’ble Servesh Kumar Gupta, J.

The impregnability of the judgment and order dated 13.9.2013 has been questioned by the convict/appellant Neeraj Saini. The said judgment was rendered by learned Fourth Additional Sessions Judge, Haridwar in Sessions Trial No.218 of 2013 which pertains to crime no.56 of 2013 at police station Pathri. Appellant was found guilty for the offences of section 376 and 506 IPC, wherefor he has appropriately been sentenced.

Appellant Neeraj Saini, young man running in his mid twenties, has faced the charge of committing rape upon Smt. Nisha Saini, married woman running in her mid thirties when her husband was away from house. Shorn of details, the brief sum-up of prosecution version is that PW2 Ravindra Kumar Saini (husband of prosecutrix) had left the house in the morning of 27.4.2013 in order to attend the election duty of Municipal Bodies as Presiding Officer. So, he remained out of his house in the intervening night of 27/28.4.2013. At that time, his wife Smt. Nisha was present in the house along with her three children. As has been disclosed later, Ms. Kajal, aged about 15 years (daughter of elder brother of PW2) was also present in the house. At about 9:30 PM of that fateful night, appellant entered in the house, gagged the mouth of prosecutrix and by showing country-made pistol, drove her to plank cot kept in the adjoining room, shown as ‘A’ in the spot map

Ex.Ka-4. Accused then torn her Kurta, broke string of her trouser and committed rape upon her. She resisted little and tried to make noise but she was prevented from doing so by the accused because her mouth had been gagged and further, she was subjected to the threat of killing her as well as her children by the accused at the strength of country made pistol. Accused ravished her womanhood by such rape for half an hour and then left the house. The victim, having been so raped, came in the room where the children were sleeping and PW4 Ms. Kajal was also present.

PW2 (husband of prosecutrix) returned to the house in the midnight of 28/29.4.2013 and in the next morning, he was not apprised by the victim regarding the incident but it was told by PW4 that something wrong had been done with her aunt (victim) by the appellant. Since the mother of PW2 was admitted in Jollygrant hospital, so on 29[th], he could not take the things forward and left for the hospital in order to fetch his mother. He returned along with his mother on 29.4.2013 by 5-6 PM. After coming from the hospital, he motivated his wife in desolation regarding the fact which PW4 had narrated in the morning. In the next morning i.e. on 30.4.2013, victim disclosed the event allegedly happened with her. PW2 taking PW1 with him, lodged the report at the police station on 9.5.2013 at 12:20 PM. Police came into motion and arrested the appellant on the same day of lodging the FIR and since then, he is under incarceration.

Investigation culminated into the submission of chargesheet. Learned Additional Sessions Judge levelled the Charges, accordingly, which were abjured by the accused, so after putting him on trial, learned Judge has convicted the appellant/accused as aforementioned.

I have heard the pros and cons advanced by learned counsel for the appellant and learned State counsel assisted by learned counsel for the complainant.

Undoubtedly, as the criminal jurisprudence has been developed, an accused for commission of rape can be convicted on the sole testimony of prosecutrix if it inspires confidence. At times or rather most of the times, no corroboration is needed to place reliance on the deposition of prosecutrix who has come forward to stake her chastity in the open Court but at the same time, it has been held time and again by the Hon’ble Apex Court as well as the High Courts that to make the sole testimony of prosecutrix the basis of conviction, her deposition should be of very high quality. She should be sterling witness. Suffice it to quote the ratio propounded by the Apex Court in case of Rai Sandeep @ Deepu v. State (NCT of Delhi) reported in (2012) 8 SCC 21, wherein it was held as under: -

“In our considered opinion, the 'sterling witness' should be of very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in position to accept it for its face value without any hesitation. To test the quality of such witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such witness. The witness should be in position to

withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it.”

Before considering the evidence of prosecutrix, it would be worthwhile to note that the evidence of PW4 Ms. Kajal has been disbelieved by the trial court because at the relevant time her presence has been doubted in the house. This Court has also looked into her evidence and finds that the material variations in her deposition are so myriad and the same is self-contradictory on number of scores. So, her evidence is quite unbelievable and by no stretch of imagination, it can be accepted that she was present in the house at the relevant time.

Now, the case, as aforementioned, is based on the sole testimony of prosecutrix and the Court has to analyse whether her evidence is of such high value as to make her sterling witness. It can significantly be mentioned here that she is quite grown-up adult lady, running in her mid thirties and the mother of three children as well. Academic qualification-wise, she is M.A., B.Ed., as disclosed by her husband (PW2) in his deposition. Once, she also fought the election of Gram Pradhan. This way, her personality can be accepted to be of quite vigilant and educated lady. Her husband is also Headmaster in Government Basic Education School. So, it is quite unacceptable that she, having faced such an incident with her, could not muster the courage to disclose the same promptly to her husband even after his arrival at home in the midnight of 28.4.2013. Only long persuasions of her husband (PW2) could make her capable to disclose the incident in the morning of 30.4.2013. Undoubtedly, in the morning of 29.4.2013, PW2 had gone tofetch his ailing mother from Jollygrant Hospital but still, there was no reason for the prosecutrix to restrain herself from disclosing the incident either in the morning or in the evening of 29.4.2013. Even so, when the incident was disclosed in the morning of 30.4.2013, it is difficult to understand and digest the inordinate delay by such an educated and vigilant husband, who is no less the Principal of government basic education school, in lodging the FIR. And the same could be lodged by him only after almost 10 days of the facts came into his knowledge. The explanation offered by PW2 that he could not lodge the FIR because he was being persuaded and pressurized by the near relatives as well as by father of accused from reporting the incident, is not convincing. It has been on the record that father of accused Radhey Lal had launched criminal prosecution inter alia against PW2. Although PW2 in his deposition has strived to prevaricate from the knowledge of such prosecution but he has accepted later that he had known about the criminal prosecution by way of receiving summons from the Court. So, in those circumstances, it is difficult to understand that PW2 succumbed to the pressure of Radhey Lal. Had there been little veracity in the prosecution facts, then the natural conduct on the part of PW2 would have been to lodge the report quickly against the appellant. In this regard, the Hon’ble Apex Court, in case of Ramdas and others v. State of Maharashtra (2007) 2 SCC 170, has held that though the mere delay in lodging the FIR may not itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is matter of appreciation of evidence by the court of fact. In that case, the FIR was lodged after 8 days of the alleged occurrence for which no explanation was rendered, hence the appellant was given benefit of doubt in the matter of section 376 IPC. In the

instant case too, I do not find any sufficient explanation offered by PW2 or by the prosecution in causing such inordinate delay for lodgment of the first information report in the rival circumstances existing between the parties, as have been aforementioned.

Prosecutrix (PW1) has stated in her testimony that accused/appellant gave blow of country made pistol on her arm which made her injured. PW3 Dr. Shanti Negi, in the medical examination of the prosecutrix, conducted on 9.5.2013 at 3:20 PM, found one ‘Bruise pale blue in colour about 1.5 x 1 cm in size present 10 cm above elbow joint’. PW3 has further deposed that as per Modi Jurisprudence, Contusion is called as Bruise which initially is of red colour, and after three days, it turns into bluish and then black colour. From 5[th] to 6[th] day, it turns out to be greenish. The bruise noted on the arm of the prosecutrix was of pale blue colour, meaning thereby, the pale blue colour of bruise could remain only till 30.4.2013 whereas this examination was conducted on 9.5.2013 when it was found to be of blue colour. So, it can be inferred that this bruise, on the body of victim, was not caused in the intervening night of 27/28.4.2013. This way, another doubt is created in the prosecution version.

Learned counsel appearing for the complainant has submitted that lady of middle-class status would not put her chastity on the anvil in the open court just to incriminate person who is no less than her brother-in-law, at least on the village basis and reside in the close vicinity also. By and large, this argument may be correct but it cannot be applied universally. The Hon’ble Apex Court in the case of Panduranga Sitaram Bhagwat v. State of Maharashtra2005 Cri.L.J. 888 has held that: -

“The approach that ordinarily lady would not ‘put her character at stake’ may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where charges under sections 376 and 354 IPC have been found to have been falsely advanced.”

This Court does not want to burden the judgment by way of elaborating several contradictions and incongruities in the testimony of the prosecutrix with that of PW4 Ms. Kajal, who has already been disbelieved by the trial court. Suffice it to say that the incongruities and discrepancies in the evidence of prosecutrix are of such gravity which are more than sufficient to belie the veracity of the prosecution story.

Kajal, who has already been disbelieved by the trial court.

Thus, for the reasons as stated hereinabove, the appeal is allowed. Impugned judgment and order passed by the trial court is set aside. The conviction and sentence of the appellant/accused Neeraj Saini is hereby quashed. He is in gaol eversince his date of arrest. Let he be set at large forthwith if his detention is not required in connection with any other case.

copy of this judgment and order along with LCR be transmitted to the court concerned for compliance.

RDang

(Servesh Kumar Gupta, J.) April 17, 2014