Ranjana Pandya, J. - (1.) Challenge in this appeal is to the judgment and order dated 15.06.2015, passed by Additional District & Sessions Judge, Fast Track Court, Farrukhabad, in Sessions Trial No. 168 of 1997 (State v/s. Constable No. 881 Rati Ram And Another), arising out of Case Crime No. 115 of 1996, under Ss. 452, 323/34, 376, 506 and 354 I.P.C., Police Station Compil, District Farrukhabad, whereby the appellants have been convicted and sentenced to 10 years rigorous imprisonment along with fine of Rs. 25000/ - under Sec. 376 I.P.C.; 3 years rigorous imprisonment along with fine of Rs. 5000/ - under Sec. 452 I.P.C. and 2 years simple imprisonment along with fine of Rs. 2000/ - under Sec. 354 I.P.C. with default stipulation but the accused appellants were acquitted for the offences punishable under Sec. 323/34 and 506 I.P.C.
(2.) In short compass, the case of the prosecution as unfolded by the prosecution is that a written report was lodged by the informant stating that she is wife of Radhey Shyam and belongs to the Nutt community. She resides near the water tank. About 12 days prior to lodging of the report, in the mid night, she was sleeping with her children inside her house the Constable Rati Ram along with Constable Jeevan Lal of Police Station Kampil came to her house and assaulted her sister -in -law Pinky, while they were under the influence of intoxication. She recognized all these constables. Two other constables were also accompanying them who were in civil dress. All the aforesaid people pressed her mouth and forcibly picked her up and took her in the jungle. They made her pull down. First Constable Rati Ram raped her under the influence of intoxication after that constable Jeevan Lal raped her under the influence of intoxication and after that their two companions also raped her one by one and left her in the jungle and fled away threatening her that if she would disclose their names, she, her children and her husband would be killed. She recognized the other two constables. It was alleged that four days prior to the lodging of the report, she was sleeping in her house with her children. Her husband was sleeping at a distance. The appellants Rati Ram and Jeeval Lal came hurling abuses and tried to carry her away. One man was standing at her door. She called for help and awoke her husband and caught Constable Rati Ram. Thereafter, her husband also ran to catch the Constables at which both the Constables pushed the couple and fled away. At the same time, compounder Khushi Ram came holding torch. He also tried to catch the accused persons but the accused persons threatened them by saying that, if they will be followed or their names would be revealed, they would kill all of them. She is a poor lady and due to fear, she could not approach the police station. Later on, she lodged the report.
(3.) On the basis of this report, Head Constable Dheeraj PW -7 made entries in the G.D., whose copy was proved as Exhibit Ka -6. Thereafter, the investigation was entrusted to PW -5, SHO Satyaveer Singh, who recorded the statement of the chik writer. He copied the first information report in the case diary. Further, he recorded the statement of the informant. The victim was sent for medical examination. Later, her statement was got recorded under Sec. 164 Cr.P.C. He prepared the site plan which was proved by this witness as Exhibit Ka -4. Due to transfer of this witness, the remaining investigation was conducted by PW -6 Bhagwan Singh, who recorded the statements of the witnesses and submitted the charge sheet against the accused. After that he was transferred. Besides this witness, the prosecution examined PW -4 Dr. Sudha Singh, who medically examined the victim on 30.04.1996. She did not find any injury on the body of the victim. She proved the medical report as Exhibit Ka -3. She found that the hymen was old, torn, healed and the vagina was admitting two fingers easily. PW -3 is the scribe to the written report who has written the report. PW -1 is the victim, who has proved the written report as Exhibit Ka -1 and her statement was recorded under Sec. 164 Cr.P.C. was proved as Exhibit Ka -2. PW -2 is Radhey Shyam, the husband of the victim in whose presence the victim was taken for rape. After close of the prosecution evidence, the statement of the accused persons were recorded under Sec. 313 Cr.P.C., in which both the accused have denied the occurrence and stated that they have been falsely implicated in this case. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment. Feeling aggrieved, the accused have come up in appeal. Heard Sri N.L. Tripathi, learned counsel for the appellants, learned Additional Government Advocate for the State -respondent and perused the lower court record. Learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration is required when the testimony of the prosecutrix is clear, cogent and convincing. He has further contended that there is nothing to show that the prosecutrix has falsely implicated the accused. Thus, the appeal is liable to be dismissed. Learned counsel for the appellants has submitted that as per first information report, 12 days prior to the lodging of the report, the victim was raped. The report regarding that rape was never lodged and there is no such report available. The present report has been lodged by the victim herself on 28.05.1996 and only in the first information report, it has been mentioned that four days prior to lodging of the first information report, she was raped by Rati Ram and Jeevan Lal and one man was standing at the door. In the same first information report, it has been mentioned that 12 days prior to the lodging of the first information report, 4 people who were intoxicated including Rati Ram and Jeevan Lal, took her in the jungle and all the accused persons raped her. Why this matter was not reported to the police is a million dollar question which remained unanswered. I am aware that this witness belongs to the Nutt community. These tribes walk on ropes and perform some physical activities like circus etc to earn their livelihood but there is no reason, why if the lady was being gang raped by 4 people, she would not lodge the report. Moreover, when she was raped by two people, why she waited for 4 days to lodge the report. The delay in lodging the first information report is always not fatal for the prosecution case and I am aware that in a rape case the prosecutrix remains worried in traumatic state of mind. The family of the victim shows reluctance to go to the police station because of society's attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathies with her. The family remains concerned about its honour and reputation of the prosecutrix. Only after having a cool thought it is possible for the family to lodge a complaint in sexual offence as has been laid down in : AIR 1995 SC 2472 Karnel Sing v/s. State of M.P. In the present case, it is not the case of the prosecutrix that due to shame and fear, the report was not lodged. Although, in the first information report, it has been mentioned that the victim is a poor lady and she was threatened by the police personnel but I do not think that this would be a very plausible reason because ultimately, she lodged the report. Thus, two incidents of rape took place as per the prosecutrix. In the first incident, she was raped by Jeevan Lal and Rati Ram and two other unknown persons and in the second incident, she was raped by Rati Ram and Jeevan Lal. Now, coming to the statement of PW -1 the victim, in which she has stated that when the first incident happened, she was lying inside her house with her small children. Four Constables namely Rati Ram, Jeevan Lal, Kali Charan and Ram Nath, who were all intoxicated, entered into her hut, Rati Ram slapped her and said that "Bada Sahab" had called her. They took her on that pretext to the jungle and all the four raped her. After 5 or 6 days of this occurrence, again all the four people entered into her hut, they started dragging this witness, at which, her husband came. He followed these people but they fled away. Thus, as per the statement of this witness in the second incident, they only tried to drag her. When her husband came, they fled away. This witness was subjected to the test of cross -examination in which she has stated that she had named all the four accused in the first information report but the first information report bears the names of only Rati Ram and Jeevan Lal. Further in cross -examination, she has stated that she knew the names of the accused because the peoples used to call them by their names. She has further stated that the report was got lodged by "Neta Ji" and she had put her thumb impression on the report. The witness was contradicted with her statement which was recorded under Sec. 164 Cr.P.C. to which she said that she had taken the names of all the accused persons in her statement under Sec. 164 Cr.P.C. Her statement under Sec. 164 Cr.P.C. is Exhibit Ka -2. Perusal of the statement shows that in that statement also she has only named Constables Rati Ram and Jeevan Lal and two unknown constables. In the statement, she has stated that when she was taken by the Constables, she was accompanied by her small daughter but she was snatched from the mother and thrown in the jungle. In the second incident, she has stated that when Rati Ram and Jeevan Lal were forcible taking her away, her husband also objected them at which both Rati Ram and Jeevan Lal and other persons fled away. Compounder Khushi Ram was coming from that side who flashed the torch and tried to apprehend the accused persons but all fled away threatening him were threatened. She has further clarified that Jeevan Lal and Rati Ram were armed with lathies and in the first instance, all the four Constables were armed with rifles and guns. Thus, the statement of the prosecutrix recorded under Sec. 164 Cr.P.C. and that recorded before the trial court are absolutely contradictory to each other and the victim has been making improvement at every steps. I fail to understand, if she was a very poor lady, how, she could afford to engage a private counsel which she has admitted to have engaged in the case one or two years back who was present in the court, when her statement was being recorded. Radhey Shyam PW -2, is the husband of the victim, who has stated that when the second incident took place, he was lying in his hut. His wife and children were also lying there. At that time, 4 Constables namely Rati Ram, Jeevan Lal, Kali Charan and Ram Nath entered into the hut and carried away his wife. When he tried to follow them, they threatened him. He came back due to fear. In the examination -in -chief, this witness is in total contradiction of the statement of the victim PW -1. According to whom, in the first occurrence 4 people were involved and in the second occurrence, two people entered into her house and one was standing near the door. Radhey Shyam PW -2 was also cross -examined by the defence in which he has stated that when the first occurrence took place, he was not present at the house but he and his wife did not report the first occurrence at the police station. He has stated that when the second occurrence took place, he was present in the house. According to him, the second occurrence was committed by Rati Ram, Jeevan Lal, Kali Charan and Ram Nath which is neither the case of the prosecution nor the case of the victim. He has admitted that even his wife, the victim had named two peoples in the first information report. She had not got the names of Kali Charan and Ram Nath written in the first information report. He has admitted that both the couple discussed the matters together before lodging the report but he does not know why the names of Kali Charan and Ram Nath were not mentioned in the first information report. He has further admitted that when all the Constables entered into her house, they had muffled their faces. PW -3 is the scribe, who has stated that he wrote the report on the dictation of the informant. PW -4 is Dr. Sudha Singh, who medically examined the victim but she found no external or internal injuries on the body of the victim. The statement of D.W. -1 Jai Kishan, ASIM was produced before the court, who has stated that since 14.05.1996 for three days, Constables, Rati Ram was on leave, although the original GD was destroyed. Even Jeevan Lal was on leave from 14.05.1996 for five days, as per GD report No. 29. Although when these two constables were on leave during the relevant period their rifles would have not been deposited at the police station before they proceeded to leave. This also make the whole prosecution case improbable and doubtful that all the four constables were armed with rifles and guns at the time of the incident. Thus, on what has been said and discussed above, I find that the evidence of the witnesses have major contradictions and the prosecution story is shaky, unreliable, not worthy of credence. Thus, the prosecution has miserably failed to prove the case against the appellants and the appeal is liable to be allowed. Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence dated order dated 15.06.2015, passed by Additional District & Sessions Judge, Fast Track Court, Farrukhabad, in Sessions Trial No. 168 of 1997 (State v/s. Constable No. 881 Rati Ram And Another), arising out of Case Crime No. 115 of 1996, under Ss. 452, 323/34, 376, 506 and 354 I.P.C., Police Station Compil, District Farrukhabad is hereby set aside. The appellants namely Constable No. 881 Rati Ram and Constable No. 689 Jeevan Lal are in jail. They may be released forthwith in this case. However, the appellants are directed to comply with the provision of Sec. 437 -A Cr.P.C. Let the copy of this judgment be sent to the trial court concerned.;