HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 27 Case :- CRIMINAL APPEAL No. - 3953 of 2015 Appellant :- Suresh Respondent :- State Of U.P. Counsel for Appellant :- M.C. Singh,Dushyant Singh Counsel for Respondent :- Govt.Advocate With Case :- CRIMINAL APPEAL No. - 3444 of 2015 Appellant :- Raj Singh Respondent :- State Of U.P. Counsel for Appellant :- M.C. Singh,Dushyant Singh Counsel for Respondent :- Govt.Advocate With Case :- CRIMINAL APPEAL No. - 3154 of 2015 Appellant :- Satpal Singh Respondent :- State Of U.P. Counsel for Appellant :- M.C. Singh,Dushyant Singh Counsel for Respondent :- Govt.Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. These three appeals have been preferred against the common judgment passed by Additional District and Sessions Judge, Fast Track Court No. 3, Bulandshahar dated 21.07.2015 in S.T. No. 1130 of 2013 (State vs. Raj Singh and others) registered at Case Crime No. 65 of 2013, under Sections 376D, 452, 506-II I.P.C., Police Station Khanpur, District Bulandshahar whereby all the appellants were found guilty under Section 376D I.P.C. and were convicted for 20 years R.I. with Rs. 25,000/- as fine to each. All the accused were also found guilty under Section 452 I.P.C. and were convicted to 4 years R.I. with Rs. 5,000/- as fine to each and also under Section 506-II I.P.C. they were sentenced to 4 years R.I. to each. The sentences by which fines were imposed had a default stipulation. All the sentences were to run concurrently.
2. Brief facts according to the prosecution case and F.I.R. are that on 08.05.2013, the victim was alone in the house. Her children had gone out to play and her husband had gone to the fields. At about 04:00 P.M., the accused persons entered into her house. Raj Singh, the accused pointed gun at her, Satya Pal, the other accused caught her hands and accused Suresh committed rape on her. After this, the accused persons started saying that if she would lodge first information report then she and her husband would be murdered. When the victim raised hue and cry, Amar Pal, Jora Singh, Shree Pal and some other villagers came there who saw the accused persons fleeing away from the house of the victim. When the husband of the victim came to know about the occurrence in the field, he reached home. The victim narrated the incident to him. She went to the police station along with her husband to lodge the first information report but the report was not written. Then she moved an application to the S.S.P., Bulandshahar on 09.05.2013, but even then her report was not lodged. Hence, she moved an application under Section 156(3) Cr.P.C., on which orders were passed for registration of the first information report.
3. Previously, the investigation of the case was entrusted to S.I. Kamal Singh but on 16.09.2013, it was handed over to S.I. Prahalad Singh PW-7. This witness after investigation has submitted charge sheet against the accused persons and proved it as Exhibit Ka-6. On the basis of the first information report PW-6 Constable Ramesh Chandra prepared the chick report and proved it as Exhibit Ka-4 and copied the matter in the G.D. and proved it as Exhibit Ka-5.
4. The prosecution examined as many as seven witnesses, out of which PW-6 and PW-7 were formal witnesses. PW-1 Brajbala is the informant who is also the victim in this case. She has proved the application as Exhibit Ka-1 and her affidavit as Exhibit Ka-2. Her statement was recorded under Section 164 Cr.P.C. which has been proved as Exhibit Ka-3. PW-2 is the husband of the victim namely Yogesh Kumar. PW-3 is Amar Pal who has said to be the witness of fact. PW-4 is Shree Pal who also said to be a witness of fact. PW-5 is Lavkesh who is also said to be witness of fact. PW-6 is Constable Ramesh Chandra and PW-7 is S.I. Prahlad Singh. After examining all the seven witnesses, the prosecution closed its evidence.
5. The statement of the accused persons were recorded under Section 313 Cr.P.C. in which the accused denied the alleged occurrence. The accused Suresh has stated that at the relevant point of time he was Pradhan of the village. Many cases were pending against the witness Lavkesh regarding encroachment of land of Gaon Sabha. The victim and her husband used to ill treat the father-in-law of the victim for which this accused used to intervene, hence, he has been falsely implicated.
6. Accused Satpal Singh has stated that his whole body was burnt six months prior to the incident, he is innocent. The accused Raj Singh has stated that Lavkesh has encroached upon the land of L.M.C., hence this accused has been falsely implicated. No defence witness was adduced by the accused persons.
7. Learned lower court after perusal of the evidence on record passed the impugned judgment against which this appeal has been preferred.
8. I have heard learned counsel for the appellants, learned A.G.A. And perused the original record.
9. Learned counsel for the appellants have raised the following points during his arguments:-
* That the first information report is delayed.
* That all the witnesses produced by the prosecution are interested witnesses who have the inimical to the accused, hence, their evidence cannot be relied upon.
(i) That the first information report is delayed :-
As far as delay in first information report is concerned, a prompt first information report is indicative of the fact that there are remote chances of false implication. The present case is not one in which it can be said that the reputation of the family was at stake, hence the parents deterred to lodge the first information report but in this case the victim is a married lady who herself has proceeded to the police station with her husband to lodge the report.
The occurrence took place at 04:00 P.M. and on the same day the husband of the victim came back home. The first information report was lodged by means of an application filed under Section 156(3) Cr.P.C. on 31.05.2013, whereas the occurrence is said to have been taken place on 08.05.2013 at 04:00 P.M. The distance between police station and place of occurrence was 4 Kms. The husband of the victim PW-2 Yogesh Kumar has stated that when he returned at 05:00 P.M., his wife told him about the occurrence. He took his wife to the police station and narrated the whole occurrence but his report was not lodged because Ramveer, the brother of the accused Suresh was present at the police station. Next day he went to the S.S.P., Bulandshshar and filed an application but nothing was done in the matter hence, he got the case registered after moving an application under Section 156(3) Cr.P.C.
In cross examination this witness has admitted that on the next day i.e. on 09.05.2013, he went to the police station, this statement is contradictory itself inasmuch as earlier he has stated that he did not go to the police station on 08.05.2013 and he remained in his house with his family. What was the reason for doing so, is not coming forth from the mouth of this witness. He has stated that when they went to Bulandshahar, he himself wrote an application to the S.S.P. and signed it. The witness of fact Lavkesh PW-5 has stated that he is an Advocate who is a witness of the occurrence. He has further stated that when the couple went to Bulandshahar to lodge the report with the S.S.P., he accompanied them. He had also got the report written to the S.S.P., Bulandshahar and the victim has signed the report. Now, there is contradiction, whether the report submitted to the S.S.P., Bulandshahar was signed by the victim or her husband because there is delay in lodging the first information report which casts a shadow of doubt on the prosecution version.
(ii) That all the witnesses produced by the prosecution are interested witnesses who have the inimical to the accused, hence, their evidence cannot be relied upon :-
It has been submitted on behalf of the appellants that the witnesses produced by the prosecution are related and interested to the informant and inimical to the accused persons, hence, they cannot be relied upon.
In 1994 SCC (Criminal) Page 1390 Meharaj Singh Vs. State of U.P., it has been laid down:-
"Testimony of interested witnesses cannot be rejected on the sole ground of interestedness, but should be subjected to close scrutiny. Thus on what has been said above to conclude, neither the witnesses are interested nor related."
In (2006) 4 Supreme Court Cases, 512 (State of A.P. vs. S. Rayappa and others), the Hon'ble Apex Court has held as under:-
"Testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. On the contrary, invariably the public is reluctant to appear and depose before the court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously."
PW-1 Brajbala being the victim is the star witness of the case. In the examination-in-chief, she has supported the prosecution case. To test the veracity of the witnesses obviously the witness had to be put to the test of cross-examination. Minor variations into the statements of the witnesses are bound to occur in natural manner. PW-1 Brajbala, victim has admitted that the father of Satpal Singh namely Tejveer and her father-in-law Jagdish are real brothers. Meaning thereby the accused Satpal is cousin of the husband of the victim. As far as the evidence of PW-3 Amarpal is concerned, he has not supported the prosecution version and has denied the prosecution story. PW-4 Shreepal has also denied the prosecution version. Both these witnesses were declared hostile by the prosecution and were cross-examined by the prosecution but there is nothing in the cross-examination of these witnesses which could help the prosecution. Infact PW-4 Shreepal has admitted that the accused persons had told the victim and her husband not to beat the father-in-law of the victim and they intervened in the matter.
Coming to the incident, PW-1, the victim has stated that the accused Suresh raped her while Satpal Singh caught her hands and Raj Singh pointed a gun at her. She has further stated that in the incident her bangles broke, her clothes were torn and blood oozed out from her wrists. She has further stated that the bed was got stained and she did not get herself medically examined at the hospital. She has also dared to state that when the I.O. inspected the place of occurrence, she had shown the stained bed to the I.O. It appears that this witness forgot that there is no site plan on record and there is no evidence on record that the I.O, even inspected the spot. Strange enough, there is no site plan and the trial court conducted the trial very hastily and carelessly.
Brajbala PW-1 has stated that the witnesses appeared when the accused were fleeing away but the witness Lavkesh who is an advocate has stated that when rape was being committed he had seen the occurrence. On hearing the alarm, he entered the house of the victim and saw that Raj Singh was holding a gun which was pointed towards the chest of the victim, Satpal Singh had caught her hands and Suresh was committing rape on Brajbala. When the accused persons saw the witness, they fled away.
I believe this statement to be totally false which does not find corroboration in the whole prosecution story inasmuch as according to the victim, when the witnesses came, the accused persons fled away, whereas this witness Lavkesh PW-5 has stated that he saw the rape being committed in cross-examination. This witness has stated that he could not apprehend the accused persons in spite of other witnesses being present with him.
Coming to the inimical terms with Lavkesh with the accused persons, I would like to point out that Lavkesh is practicing advocate who himself has remained in jail for eight months in a case under Section 376 I.P.C. He was bailed out in that case from the High Court. He has admitted that he is facing trial of a case under Section 376 I.P.C. in which the informant is Poonam. He has also admitted that the victim is in jail in a case under Section 376 I.P.C. but she was on bail. He has further admitted that on 14.10.2012, the accused Suresh had lodged the first information report against Lavkesh and his brother Sanjeev under the provisions of Protection of Forest Act. Thus, it can safely be concluded that this witness is highly inimical to the accused and is interested to get the present accused persons convicted.
Although the character of the victim could not be very relevant in the matter but reference has to be made to. PW-1, the victim has admitted that accused Suresh was presently the Gram Pradhan. She has admitted that six months after the present case she had again lodged a first information report under Section 376 I.P.C. against Satpal Singh, Raju, Devendra, Ram Pal, Surendra and Peelu in which investigation was done and final report was submitted. She has further admitted that the present accused Satpal Singh was also an accused in the later report lodged by this witness under Section 376 I.P.C. She has further admitted that she is an accused in a case under Section 376 I.P.C. and under SC/ST Act. She has admitted that Poonam had lodged a case in which the victim PW-1, her husband Yogesh, PW-2 and Lavkesh PW-5 were accused and this case is pending trial at Bulandshahar. PW-5 Lavkesh was being an advocate was so much interested in the conviction of the accused that he accompanied the victim to Bulandshahar also.
PW-2 Yogesh Kumar husband of the victim has stated that his wife had lodged another case under Section 376 I.P.C. in which one of the accused was Satpal Singh is accused who is also accused in the present case. This witness has further admitted that on 27.08.2014 when he was called for evidence, he was confined in jail and he was brought from jail to give evidence. He was detained in jail under Section 376 I.P.C. and in that case witness Lavkesh and the victim Brajbala were also accused and in the case against the victim, her husband and Lavkesh, the accused Ramveer who is brother of the accused Suresh is a witness. This witness corroborates the case of the defence by admitting that on 08.05.2013, he had assaulted his parents. After which they went to the police station. His parents were bleeding but this witness and his wife did not go to the police station. This witness Yogesh PW-2 has also admitted that cases are pending against the witness Lavkesh for encroaching upon the land of the Land Management Committee. What else is needed. This witness has specifically stated that Lavkesh is an advocate and he influenced the victim and her husband to lodge this false report.
The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. being Exhibit Ka-3 but in the light of the oral evidence, this statement becomes totally unreliable.
There is no medical report on record. It has been proved beyond reasonable doubt that the witness Lavkesh who has given direct evidence of rape is a witness who is an accused along with the victim and her husband and is on inimical terms with the accused Suresh. Thus, I have no hesitation in terming him as a untruthful witness.
10. Analyzing the complete evidence on record I conclude that the whole story is concocted, false, unreliable and the prosecution has miserably failed to prove the charges against the accused persons.
11. Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused persons and charges levelled against them are beyond reasonable doubt, as such the accused are entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 21.07.2015 passed by Additional District and Sessions Judge, Fast Track Court No. 3, Bulandshahar in Sessions Trial No. 1130 of 2013 is hereby set aside.
12. Accordingly the appeals are allowed.
13. The appellants are in jail. They shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.
Order Date :- 17.11.2015 sailesh