My uncle raped me! My brother raped me! My mother & aunt tried 2 kill me! How a 20 year old spins lie after lie when she is asked to mend her ways by her elders
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 27
Case :- CRIMINAL APPEAL No. – 1504 of 2013
Appellant :- Bhopal Singh & Another
Respondent :- State Of U.P.
Counsel for Appellant :- Ashish Agrawal,Brijesh Sahai,Rajesh Kumar Srivastava
Counsel for Respondent :- Govt. Advocate
Hon’ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgment and order dated 19.03.2013, passed by Additional District and Sessions Judge, Court No. 15, Muzaffarnagar, in Sessions Trial No. 923 of 2005 (State vs. Bhopal Singh & Others), arising out of Case Crime No. 263 of 2005, under Sections 376, 323, 506 I.P.C., Police Station Budhana, District Muzaffarnagar, whereby the accused Smt. Rajesh was acquitted for the charges framed against her under Sections 323 and 506 I.P.C. Further, the accused Bhopal Singh and Sunny were found guilty under Section 376 I.P.C. and each were sentenced to 10 years’ rigorous imprisonment along with fine of Rs. 25,000/- with default stipulation.
2. Filtering out unnecessary details, the prosecution case in brief is that the informant has lodged a report on 14.03.2005 stating that she was aged about 20 years and was living with her aunt and uncle (Bua and Foofa) since when she was one year old. They had adopted her from her real parents who were living in Meerut but they had not adopted her legally. Her real elder brother Sunny used to live with her real parents at Meerut. In 1997, when the victim was studying in class 8th and she was about 12 to 13 years of age, her aunt (Bua) went to her grand mother’s house for 2 to 3 days to Muzaffarnagar. Her aunt and uncle (Bua and Foofa) did not have any children, hence they treated the victim as their child and the victim also treated his aunt and uncle (Bua and Foofa) as her parents. Only these three people used to live in the house. In the absence of her aunt (Bua), her uncle (Foofa) started sexual abuse of the victim. Initially the victim felt very unnatural, unsafe and wrong but her uncle (Foofa) used to sexual assault her, when she was in deep asleep. Often during the night, her uncle (Foofa) used to press her mouth and neck and used to threatened her not to tell anything to anybody. He also threatened her that if she would tell this incident to her aunt (Bua), then she would beat her badly. The victim thought that nobody would believe her due to which she was very much frightened. Often, after getting opportunity, her uncle (Foofa) used to rape her and threatened her. Due to all these things, the victim was mentally disturbed. She started keeping quiet. She could neither concentrate on her study nor she could understand what to do. At times, she thought of leaving her house or to commit suicide. During that period, in the summer vacation, she went for 15 days to Meerut to live with her real parents. Her father was a Head Constable in the U.P. Police, who did not live with the family. He was being transferred due to his service. in the absence of real mother of the victim, her real elder brother Sunny also started raping her. Her real brother raped her and sexually assaulted her till 2004. Whenever, she tried to resist her brother, he used to beat her. In March 2004, Sunny got married. In April 2004, when the victim went to her house, her brother Sunny again tried to made physical relations with the victim. The victim collected courage and said that she would tell all the facts to everybody. On 14.02.2005, at 05:30 A.M., when her aunt (Bua) went out for a walk, her uncle (Foofa), again raped her. On 18.02.2005, at 06:00 A.M., she narrated the whole incident to her real mother and also told her about the activity of rape by her uncle (Foofa) and her real brother Sunny. At this, her mother told her that she should tell about the act of her uncle (Foofa) to her aunt (Bua) but told her not to say anything about the act of her brother Sunny. On the same day at 10:00 A.M., she told everything to her aunt (Bua). Her aunt (Bua) told her that why she told the whole occurrence to her real mother and the victim herself was at fault. Her aunt (Bua) called her mother telephonically and they decided that nobody should come to know about these facts. Instead of helping the victim, her aunt (Bua) beat the victim by slippers. At this, her uncle (Foofa) came in the room. Her aunt (Bua) also threatened to assault her husband with the knife. She asked her husband, why he had raped the victim. For some days, there was tension in the house and the victim was made to feel that only she was at fault. The next day, the aunt (Bua) of the victim talked to the real mother of the victim. The aunt (Bua) told the victim that her mother has suggested that the victim be killed so that both the families could be saved from ill repute. The victim decided that she should take some steps to save her life. She had noted the telephone number of "Mahila Aayog" when the television was displaying the "Radio Mirchi" channel. She telephoned to the "Mahila Aayog" from where she was given the telephone number of "Jago Ri Organization", a latest organization. On 02.03.2005, the victim wrote a letter in the name of her cousin Ashish, in which she wrote all the incident and also the reason why she was leaving her house. Finding no other alternative, she took out Rs. 5000/- and left the house without telling her aunt and uncle (Bua and Foofa). At about 12 O’clock, without any information, she left the house with Rs. 5000/- and two books. On 2nd March, in the evening, she reached Delhi. She requested "Jago Ri Organization" to help her morally and legally. This information sent by the "Jago Ri Organization" was registered as first information report at the police station.
3. The prosecution examined as many as seven witness. PW-1 is the victim, who proved her written report as Exhibit Ka-1. PW-2 is Dr. Manorama Gupta, who examined the victim. The doctor did not find any external or internal injuries on the body of the victim. The hymen was old torn. The vagina was admitting two fingers easily. The doctor has proved the medical report as Exhibit Ka-2. PW-3 is Constable Clerk Sheesh Kunwar, who has stated that the first information report was received to the S.S.P., Muzaffarnagar through "Jago Ri Organization" along with covering letter. Thus, report was registered. This witness has proved the chik report as Exhibit Ka-3 and the copy of G.D. as Exhibit Ka-4. PW-4 is Additional S.P. Ruchita Chaudhary, who conducted the part of the investigation. She recorded the statement of the victim and inspected the spot. This witness has further prepared the site plan which was proved as Exhibit Ka-5. PW-5 is S.O. Akla Pawar, who conducted the investigation. She copied the chik report in the case diary, recorded the statement of the accused. The statement of the informant was recorded on 16.04.2005. The medical report of the victim was received by this witness who copied it in the case diary. When the victim was requested to get the spot inspected, she refused on the ground that there was danger to her life. PW-6 is Shailendra Lal, who also conducted the part of the investigation. On 30.08.2006, he recorded the statement of Smt. Rakesh, one of the accused. The investigation was ended into a charge sheet, which was proved by this witness as Exhibit Ka-6. PW-7 is Poonam, who is said to be the witness of fact.
4. After close of the prosecution evidence, the statement of the accused were recorded under Section 313 Cr.P.C. in which they denied the occurrence and have stated that they have been falsely implicated in this case. Accused Bhopal Singh has stated that the victim was going on the wrong path. He and his wife tried to restrain her, hence the victim lodged false report against him. The accused Sunny while denying the occurrence has stated that the victim was going on the wrong path, when she was restrained, she lodged an incorrect report on the instigation of her male friend. The accused did not adduce any evidence in their defence.
5. 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.
6. Feeling aggrieved, the accused has come up in appeal.
7. Heard Sri S.S. Shukla, Advocate assisted by Sri Anil K. Shukla, learned counsel for the appellants, learned Additional Government Advocate for the opposite party and perused the lower court record.
8. Learned counsel for the appellants has submitted that there is inordinate delay in lodging the first information report. As per the prosecution version, the victim was raped continuously from 1997 to 2005 i.e., she was raped right from when she was 12 to 13 years till she become 20 years of age, hence, there was no reason why she did not lodge the report earlier.
9. This is a case of its own kind in which on one side, the real brother of the victim is said to have committed rape on the victim continuously from 1997 to 2005 and on the other side, her uncle (Foofa) who was also the adoptive father of the victim committed rape on her right from 1997 to 2005. Although, it has come in evidence that the victim was not legally adopted by the accused Bhopal Singh, and Rajesh who were uncle and aunt (Foofa and Bua) in relation to the victim and are, in our society, stand on the same footing as a father and mother. Even the victim herself has admitted that she used to treat Bhopal Singh as her father and she was brought up by Bhopal Singh as his daughter.
10. Keeping in view, the relations of the victim and the accused, this case has to be dealt with. No doubt sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.
11. Hon’ble Apex Court in AIR 1996 SC 922 (Shri Bodhisattwa Gautam vs. Miss Subhra Chakraborty), has laid down as under:-
"The entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."
12. Rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female.
13. I am aware that there can never be more graver and heinous crime than the father / brother being charged of raping his own daughter / sister. He not only delicts the law but it is a betrayal of trust. The father / brother is the fortress and refuge of his daughter / sister in whom the daughter / sister trusts. Charged of raping his own daughter / sister under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber.
14. It is appalling to see that rape rears its ugly facade almost every day. ‘Rape’ is one such dark reality in the Indian Society that devastates a women’s soul, shatters her self-respect and for a few, purges their hope to live. It shakes the insight of a woman who once was a ‘happy person’, and had no clue of being a victim of the said horrifying and nightmarish encounters where the daughter / sister had been raped by none else but her own progenitor. A daughter / sister always looks up to her father / brother as a shield of her dignity and honour which is an intrinsic facet of a family especially of father-daughter / brother-sister relationship. It shocks human conscience when the sanctity of father-daughter and brother-sister relationship is ravaged in such a sordid manner and the protector becomes the violator. In such a case the offence assumes a greater degree of vulnerability which shall not go unpunished. There can never be a graver heinous crime than the father / brother being charged of raping his daughter / sister. It is the gravest sin, where the most platonic relationship is shattered by an extreme pervert and shameful act of nonetheless but one’s own father / brother. The moral values of individuals of the society have gone down to such a level that every day we hear similar news which shudders our mind and soul. We have become accustomed to saying that females are not safe outside the house but in few cases, it is seen that they are not even safe inside their homes, where the epitomy of God’s beautiful creation, a child is ravished by her own father / brother for his momentary sexual needs and pleasure which is heart-rending and odious.
15. No doubt, right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about the mixing and commingling with fellow human beings.
16. As per the version of the victim, since she was continuously raped from 1997 to 2005 by her adoptive father and real brother, she suffered mentally and physically both. Thus, she sent through "Rape Trauma Syndrome". This syndrome has been medically defined in a journal which is as under:-"No person exposed to severe trauma is immune to suffering and the signs of that suffering are referred to as symptoms. When these symptoms can be grouped as a pattern over time, they are referred to as a syndrome. Once the pattern becomes entrenched or unlikely to change, and affect a person’s functioning in a permanent way it is referred to as a disorder and is regarded as a mental illness. Rape Trauma Syndrome "RTS" is the medical term given to the response that survivors have to rape. It is very important to note that RTS is the natural response of a psychologically healthy person to the trauma of rape so these symptoms do not constitute a mental disorder or illness. The most powerful factor in determining psychological suffering or damage is the character of the traumatic event itself. Individual personality characteristics count for little in the face of overwhelming events. Physical harm or injuries are also not as great a factor since individuals with little or no physical harm may yet be severely affected by their exposure to a traumatic situation. Before looking at the effects of rape it is therefore important to first examine the character of the trauma that is rape.
Not only is there the element of surprise, the threat of death and the threat of injury, there is also the violation of the person that is synonymous with rape. This violation is physical, emotional and moral and associated with the closest human intimacy of sexual contact. The intention of the rapist is to profane this most private aspect of the person and render his victim utterly helpless. The character of the event is thus connected to the perpetrator’s apparent need to terrorise, dominate and humiliate the victim. The victim is therefore most likely to see his actions as motivated by deliberate malice, a malice impossible for her to understand. Rape by its very nature is intentionally designed to produce psychological trauma. It is form of organised social violence comparable only to the combat of war, being but the private expression of the same force. We get nowhere in our understanding of Rape Trauma Syndrome if we think of rape as simply being unwanted sex. Where combat veterans suffer Post Traumatic Stress Disorder, rape survivors experience similar symptoms on a physical, behavioural and psychological level. Some of the symptoms are present immediately after the rape while other only appear at a later stage."
17. In the above backdrop, the statement of the victim has to be examined very carefully and cautiously.
18. Learned A.G.A. has submitted that in cases of rape the sole testimony of the prosecutrix should be relied upon because the testimony of the prosecutrix stands on a better footing than of an injured witness and refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
19. I have no doubt that the evidence of a girl who complains of rape or sexual molestation should not be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion because doing so would justify the charge of male chauvinism in a male dominated society.
20. On the other hand, the Hon’ble Apex Court has laid down in Abbas Ahmad Chaudhary vs. State of Assam, 2010 Crl.L.J. Page 2060 (SC) as under:- "We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time,the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
21. There is no quarrel on the proposition of law that, if the story, projected by the prosecutrix, is so improbable that it could not be believed, then the accused persons cannot be convicted.
22. In (2015) 7 SCC page 272, (Mohd. Ali @ Guddu Vs. State of U.P.), the Hon’ble Apex Court has held as under:- "True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences."
23. PW-1 is the victim. According to her statement, the accused person started committing rape on her while she was minor. During the course of being raped, she attained the age of majority and when she lodged the report, she was admittedly major. In her examination-in-chief, she has supported the prosecution version. In examination-in-chief, she has stated that her uncle (Foofa) sexually harassed her. She felt unsafe and unnatural. Her uncle (Foofa) also fondled her. He also misbehaved her physically with his feet and private parts. He also threatened to kill her, if she would tell anything to her aunt (Bua). She was frightened. Further, she has specifically stated that her uncle used to rape her and when she went to her biological parents, her brother accused appellant Sunni raped her, in the absence of her biological parents. She has stated that in every summer vacations, she went to her biological parents, where her real brother committed rape on her. When she asked her brother not to rape her, he used to beat her. This witness has stated that on 18.02.2005, she told her biological mother about the accused raping her, she also told her aunt (Bua) about both the accused. Her mother told her not to disclose the name of her brother Sunny. Her aunt (Bua), when she came to know about the incident, she asked the accused Bhopal Singh (her husband), why he had opened the tape (Nara) of the victim. This sentence is firm to the whole prosecution case and there is no reason why the wife would not have directly asked her husband as to why he raped the victim.
24. Trying to add weightage to her case, she has stated that she heard her mother talking to her aunt (Bua) in which her mother was stating that the victim should be killed. No doubt, it was possible that this witness could hear, what her aunt (Bua) was saying, but from the other side, what her mother in phone was saying could not have been over heard by this witness. This witness has stated that she left her home after telling her aunt (Bua) that she was going to the home of her teacher (Sir). She left the house on 02.03.2005.
25. In cross-examination, this witness has stated that she narrated the entire incident to her mother and her aunt (Bua), for the first time on 18.02.2005. Before that, she never tell them anything. The letter which is said to have been left at the home addressed to Ashish is not on record. Here, a question arises, as to why, if her mother was helping her real brother and her aunt (Bua) was helping her uncle (Foofa), what was the reason, she did not narrate the whole incident to her real father, although the witness has stated that her real father was working in the U.P. Police, who used to stay out of the house with regard to his service. If this witness travelled several places, there was no reason why she could not bring the whole incident to the notice of her father, especially, when she has specifically admitted that **?kj ls eS 2 ekpZ 2005 dks x;h FkhA esjs firk th esjs tkus ls nks rhu igys cq<+kuk esa vk;s FksA firk th cqvk th o QwQk th dh vkil esa ckr gq;h Fkh] fd yM+dh toku gks x;h gSA vc bldh ‘kknh dj nksA**
26. Thus, even 2 to 3 days prior to her leaving home, when her father was easily available for her to talk, there was no reason why she did not inform her father. No doubt, generally a mother is said to be the best friend of a young daughter. But in this particular case, as per the prosecutrix, her biological and adoptive mothers were not helping her, hence she could very well have reported the matter to her father, who was working in U.P. Police, but she did not do so.
27. I would like to specify the fact that the first information report written in the hand writing of this victim, appears to be fabricated and as an after thought, inasmuch as, after **lsok esa** the name and address of "Jago Ri Organization" along with its address was written in black ink and the last two lines as follows:- **eS pkgrh gWw fd tkxksjh esjh gj rjg ls enn djs pkgs oks dkuwuh gks ;k fQj HkkoukRedA** was also written in black ink. After these two lines, the name of the victim along with her signatures was again written in blue ink. Meaning thereby that when the first information report was being written about 4 to 5 times, the pens were changed. Another word which disturbed the mind of the Court is that in the first information report, the informant has stated that initially, she felt very unnatural and unsafe and that this was wrong. Meaning thereby, initially she felt bad and later on she felt very normal. Even in the first information report, she has stated that she threatened her brother that she would tell the facts to everybody but why this was not done is a million dollar question which remains unanswered throughout the trial. Even otherwise, the first information report i.e. application addressed to the "Jago Ri Organization" is dated 14.03.2005, whereas, according to the victim she has reached the organization on 02.03.2005 herself in the night. Why she could not give the information for 12 days, has not been explained. Although, the first information report is only a corroborative piece of evidence but its perusal shows that the informant has stated in the first information report that she was leaving her house for her safety and she had danger to her life from her aunt (Smt. Rajesh), uncle (Bhopal Singh), her real mother (Smt. Rakesh), Father Surendra and her real brother (Sunny). Thus, in the first information report she has also stated that her biological parents, her adoptive parents and her real brother all wanted to kill her, whereas, as per her evidence, neither her father knew anything about the occurrence nor there was any threat by the father to the victim.
28. When the statement of the victim was recorded, she did not give her correct address but she gave the address of "Jago Ri Organization". The victim has admitted that she used to go to Muzaffarnagar from Budhana to attend college. She has also stated that one week prior to 02.03.2005, she had gone to village Hasanpur. She has stated that **esjh cqvk dh nsojkuh dh yM+dh ds nsoj dh ‘kknh gqbZ Fkh] eS cgw ns[kus xbZ FkhA** She has also stated that in the summer vacation besides going to her biological parents, she also used to often go to the village Hasanpur which was her parental village.
29. Counsel for the appellants has submitted that the appellants were falsely implicated because the victim was going on a wrong path. She wanted to marry Tajendra but the appellants resisted the marriage due to which they were falsely implicated. In this respect, the victim has stated that she knows that Tejendra is the Son of Veena, who is her neighbour. Tajendra used to go to his house, sometimes, to take fodder. Thus, somewhere, or the other the involvement of Tajendra in the whole episode is proved and admitted.
30. Some contradictions were also put to this witness in which she has stated that she had told the police that on 13.02.2005, the victim, her aunt (Bua) and Ashish were sleeping on the double bed. Her uncle (Foofa) was sleeping outside but she was not raped on 13.02.2005, infact, she was raped on 14.02.2005. As I have said earlier, corroboration is not must in such cases but the victim has specifically stated that initially where she was tenant in a house, one Poonam was also tenant. Poonam was also examined by the prosecution as PW-7, who has stated that she knows the victim. Both were tenants in the same house. She was never told by the victim about the "Jago Ri Organization" nor she was ever told that she was raped by the accused-appellants. This witness was declared hostile by the prosecution but she was cross-examined by the prosecution which also could not come to the rescue of the prosecution.
31. The victim has stated that she did not tell to the police that she like Brijlal’s son Tajendra. This question was also put to the Investigation Officer, PW-5 Alka Kunwar, who has stated that during investigation, the victim has told her that she had a liking for Tajendra, thus, these contradictions strikes at the root of the case.
32. There is nothing significant in the medical examination of the victim because it was conducted years after the incident. The I.O. did not prepare the site plan at the pointing out of the victim but it was prepared at the pointing out of Poonam, who was not at all residing in the house of the victim and who turned hostile to the prosecution case. The reason why the site plan was not prepared on the pointing out of the victim has not been stated by PW-4 Ruchita Chaudhary, the I.O., who has stated that during investigation it came to her knowledge that Tajendra was apprehended by the police and taken by the police of Budhana Police Station. He was apprehended on the complaint of family members of the victim which fact was narrated by the sister of Tajendra. The I.O. also found that Bhopal Singh always objected when Tejendra came to his house. He had also abused Tajendra for coming to his house. PW-4 Ruchita Chaudhary has admitted that she did not tried to contact the father of the victim. Nor she tried to know the present address of the victim as to where she was residing in Delhi.
33. In cross-examination, PW-4 has stated that the victim refused to get her statement recorded under Section 164 Cr.P.C. and the victim did not say to her that she was sexually harassed by her uncle (Foofa). She has also stated that the victim did not say to her that she was raped by her uncle (Foofa). Even PW-5 I.O. Alka has stated that during investigation it came to her notice that Tajendra used to come to the house of the victim to which Bhopal Singh objected. She has also stated that the victim told her that the accused Bhopal Singh used to fondle her with his legs. This witness also did not investigate this aspect of the matter from the victim during investigation. Admittedly, the mother of the victim was also an accused, as per the charge sheet filed by the prosecution.
34. Thus, there are several dents and improbabilities in the statements of the victim. The defence has put forth by the accused appellants appears to be correct, inasmuch as, PW-3 Constable Sheesh Kunwar has stated that on 07.03.2005, the accused appellant Bhopal Singh had lodged the missing report about the victim. Even the I.O. PW-4 Ruchita Chaudhary has stated that it came to her notice during investigation that Ashish told the victim telephonically that after she left the house, the family members had lodged the missing report at Police Station Budhana. This finds support from the papers on record, inasmuch as, on 07.03.2005, Bhopal Singh lodged the missing report at the Police Station Budhana stating that the victim was missing from the house since 02.03.2005 and on 13.03.2005 again the appellant Bhopal Singh moved an application before the S.O., Kotwali, Budhana stating that the victim was missing since 02.03.2005 and telephonically he has come to know that Tejendra Malik took her away and has hidden her.
35. Use of the case diary is very limited but I could not resist from going through the whole case diary available on record, according to which when the victim was asked to get the spot inspected, she refused at the pretext of danger to her life. Besides all along, she was accompanied by the members of the "Jago Ri Organization". Even then, inspite of the fact that police was with her and she had come till Budhana with the members of the Organization and the police, she could not gathered the courage to get the spot inspected. She also refused to get her statement recorded under Section 164 Cr.P.C. This conduct of the victim can definitely be looked into.
36. Thus, I conclude that the statement of the victim has wholly unreliable.
37. In (2013) 4 Supreme Court Cases page 206 (State of Rajasthan vs. Babu Meena), the Hon’ble Apex Court has laid down and classify the whole testimony to be of three categories.(1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly reliable nor wholly unreliable.
38. It has further been laid down that if the prosecution has proved wholly unreliable testimony of a single witness, the Court has no option than to acquit the accused. Thus, as I have stated above, I have found the witness i.e. the victim to be wholly unreliable, hence it would not be safe to sustain the order of conviction of the accused in this peculiar case in which the accused persons have been falsely implicated and the prosecution has miserable failed to proved its case beyond all reasonable doubts.
39. The accused appellant Bhopal Singh was of 70 years of age whereas, the accused appellant Sunny was aged about 25 years. Sunny was said to have been married in 2004. There is no evidence that his wife was not in the house. There is no reason why Sunny’s wife could not object to the factum of rape, if Sunny was continuously was raping his sister in the same house.
40. Thus, it appears that the victim fall in the company of Tejendra and other people on whose instigation, she had filed a false report against the accused. Charge sheet was also submitted against the mother of the victim. Thus, the whole prosecution case appears to be the bundle of incorrect facts, hence, the conviction cannot be sustained.
41. Thus, the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellants and the appeal is liable to be allowed.
42. Accordingly the appeal is allowed.
43. The order of conviction and sentence dated 19.03.2013, passed by Additional District and Sessions Judge, Court No. 15, Muzaffarnagar, in Sessions Trial No. 923 of 2005 (State vs. Bhopal Singh & Others), arising out of Case Crime No. 263 of 2005, under Sections 376, 323, 506 I.P.C., Police Station Budhana, District Muzaffarnagar, as against the present appellants, is hereby set aside.
44. The appellants namely Bhopal Singh and Sunny are in jail. They shall be released forthwith in this case. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.
45. Let certified copy of this judgment be sent to the court concerned.
Order Date :- 09.05.2016 sailesh