Eijaz vs State Of U.P.
2013 Latest Caselaw 2198 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17
 

 
Case :- CRIMINAL APPEAL No. - 271 of 2011
 

 
Petitioner :- Eijaz
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Wasim Ahmad,J.P.Gupta,Mohd. Shafiq,Vivek Madhok
 
Respondent Counsel :- Govt. Advocate
 

 
Connected with :
 

 
Case :- CRIMINAL APPEAL No. - 405 of 2011
 

 
Petitioner :- Abrar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- V.K. Dhawan,R N Yadav
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Zaki Ullah Khan,J.

1. Both the appeals arise out of the same judgment and order, therefore, they were heard together and are being disposed of by this common order. Heard learned counsel for appellants, learned Additional Government Advocate for the State and perused the relevant record.

2. The instant appeals have been preferred by the appellants-Eijaz and Abrar against the judgment and order dated 4.2.2011 passed by Special Judge, S.C. & S.T. Act, Lucknow, in Sessions Trial No.899 of 2007, Case Crime No.77 of 2001 convicting the appellants and sentencing them to undergo 10 years R.I. under Section 376 I.P.C. read with Section 3 (i) (xii) S.C. & S.T. Act together with fine of Rs.5000/- each. They have also been sentenced to undergo R.I. for one year under Section 506 I.P.C. The court has directed that in default of payment of fine each convict will undergo imprisonment for three months in addition.

3. The brief facts giving rise to these appeals are that one Saroj Kumari wife of Ram Balak submitted a written report at Police Station Bazarkhala alleging that on 22.3.2001 she had come to Mohalla : Bhadewan to meet one Moin Bhai and she had to give an application regarding the compensation of her house which was set on fire ; the said Moin Bhai was not available at house. She boarded a rickshaw for back journey to her village. While she was going to back, four persons met her from whom she inquired about the address ; all the four persons accompanied her on the pretext that they would tell the address ; they took her in a house in Peeli Colony, where all of them committed rape on her by turn. She had been caught hold by her hands. They were calling each other by names, Anil, Papoli, Abrar and Eijaz : Some how she succeeded in saving her life and escaped from the place ; the incident occurred at about 1.30 p.m. On the basis of written report, an F.I.R. was registered at Case Crime No.77 of 2001 under Section 376 I.P.C. at Police Station on 23.3.2001 at 00.15 hours against all the four persons as named above ; G.D. was prepared on the basis of the F.I.R.; During the investigation the victim was sent to the District Hospital for medical examination ; the Investigating Officer also visited place of occurrence and prepared site plan and recorded the statement of the witnesses and after completing due formalities submitted charge sheet against all the four accused persons under Sections 376, 504 & 506 I.P.C. and 3 (i) (xii) of the S.C. & S.T. Act on 22.5.2001. Co-accused Subodh Kumar Verma died and the case against him abated. Accused Anil Kumar Mishra absconded and his case was separated. The court tried only the appellants. Accused persons pleaded not guilty to the charges and preferred trial.

4. The prosecution examined as many as five witnesses and after recording the statement of accused under Section 313 Cr.P.C. the court was of the opinion that prosecution has proved charges against the appellants beyond reasonable doubt and convicted them and passed the sentences ; that aggrieved by the aforesaid orders, the instant appeal has been preferred.

5. Learned counsel for the appellants vehemently argued that court has passed the orders on the basis of conjectures and surmises. Both the counsel argued that case against the appellants has not been proved and testimony of prosecutrix is not worthy of reliance. The prosecutrix is major and married lady and well understand the meaning of rape and sexual intercourse. She was escorted by two persons. She narrated in her statement that Moin Bhai was not available at his house then she returned back by rickshaw to Alambagh. Accused Papole and Imran were whistling from the rear side of the rickshaw. When rickshaw puller did not stop the rickshaw, then both of them started beating him and both of them pulled her down by force and proceeded towards Peeli Colony where two more persons were sitting who were Anil and Eijaz and all the four accused assaulted her and thereafter raped her.

6. Learned counsel for appellants argued that there is no such person by the name of Imran,. The name of Imran itself has been imported for the reason best known to the prosecutrix. Learned counsel for appellants also argued that she did not raise any alarm when she was forcibly pulled down from rickshaw but the police did not search the rickshaw puller to witness the incident. In city like Lucknow, and place like Alambagh, during mid day at 1.30 p.m., there used to be huge crowd but she did not scream and shouted for help. Testimony of P.W.1 is not worthy of reliance : she had deposed on oath before the court that when she escaped, she found one blind man, she suddenly hugged him and started weeping. That blind man took her to police outpost. She narrated the incident before police and the police asked her to get a written report lodged regarding the incident. Then she abruptly requested one person who was going on cycle to write the report who scribed her version and handed over it to her. She signed it without going through it. Exhibit Ka-1 is written report. She could guess the names of the accused when they were addressing each other by their names. She further stated at page - 5 of the statement that person who scribed written report, wrote the names of persons who raped her. He was a local resident but she could not trace his whereabouts.

7. Learned counsel for appellants further argued that her testimony is highly doubtful.

8. Learned counsel for appellants also argued and put the submissions on technical point that the Investigating Officer has not been examined who would have been an important witness because he did not send either the clothes of the prosecutrix for examination to the laboratory or took her to the place of occurrence for preparing site plan. He did not collect the broken bangles from the place of occurrence.

9. Learned counsel for appellants has relied upon a judgment of Jharkhand High Court in the case of S.K. Badruddin @ Budhua v. State of Jharkhand, reported in [2012 (119) AIC 452 (JHAR.,H.C.)] held that "Indian Penal Code, 1860 - Sections 376/34 - Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 - Sections 3/4- Conviction - Based mainly on statement of P.Ws.2 and 3 - But there are vital contradictions in their evidences - P.W.3 is informant and P.W.2 is only eye-witness as projected by the prosecution - But P.W.2 cannot be believed as an eye-witness - No medical evidence brought on record and the I.O. Was not examined which caused serious prejudice to defence case - There was also some dispute between parties - Therefore chance of false implication cannot be ruled out - Hence Court gave benefit of doubt and conviction set aside"

10. Learned counsel for appellants has argued that entire act of the Investigating Officer was highly prejudicial and smell false implication.

11. Learned counsel for appellants argued that there is no corroboration of the prosecutrix evidence. The prosecution has failed to establish the guilt of the appellants beyond reasonable doubt.

12. Learned counsel for the appellants has also relied upon a judgment of Hon'ble the Apex Court in the case of Abbas Ahmad Choudhary v. State of Assam, reported in 2010 CRI. L.J.2060 ; held that "Penal Code (45 of 1860), S.376 - Rape - Testimony of prosecutrix - Though entitled to primary consideration - Principle that prosecution has to prove its case beyond reasonable doubt applies - There can be no presumption that a prosecutrix would always tell entire story truthfully."

13. Learned counsel for the appellants has argued that the appellants are liable to be acquitted since no case is established against them. .

14. Learned A.G.A. for State refuted the arguments and argued that non production of the Investigating Officer will not provide benefit to the appellants because the prosecutrix has in her testimony explained each and every minute detail. No woman shall subject herself to humiliation and disrepute against her own honour ; it shall be presumed that prosecutrix is telling truthfully because disclosing these facts she is well aware that it will cause embarrassment to her in the eyes of society and no woman will depose such a statement which will endanger her own honour in eyes of the society. Since she deposed the facts endangering her own honour, there is no reason not to believe her. As far as corroboration is concerned, there is no need to repeat such type of facts in a case of rape rather it is not possible for witnesses to depose the circumstances in which rape took place. It was further argued that if some one was present at the scene of occurrence, the possibility is that the offence would not have been committed. It is not in presence of any person, that rape takes place.

15. Learned counsel for State further argued that the appellants themselves could not prove as to why they have been implicated falsely. They have just shown their implication on false ground but they have not disclosed the reason for false implication, therefore, there is no error in the judgment and order passed by the learned lower court and appeals are liable to be dismissed.

16. The case has been registered on the basis of Exhibit Ka -1 written report scribed on behalf of the prosecutrix. Scribe has not been identified nor he has been made witnesses. There are contradiction in the testimony of the prosecutrix regarding involvement of the four accused persons. One of them has died before initiating trial ; other one is absconding and only the appellants have faced the trial on the basis of written report as Exhibit Ka-1.

17. F.I.R. has been registered on 23.3.2001 at 00.15 hours and occurrence took place at about 1.30 p.m. ; the prosecutrix in her statement says that a blind man took her to the police outpost. The prosecutrix narrated many facts which cannot be believed i.e. reaching at the outpost through a blind man and immediately going to the police station ; lodging F.I.R. at 00.15 hours i.e. about ten hours after the incident whereas medical examination took place at 3.30 a.m. There is only sole testimony of the prosecutrix ; testimony of scribe and blind man would have been material because immediately after occurrence they were the persons who were informed about woeful fate of the prosecutrix ; that the medical examination report is of no avail because it did not mention any corroborative facts. Vaginal smear report is there which is negative. Allegation of the prosecutrix that semen and blood stains were on her cloth has not been proved by the prosecution. The Investigating Officer though a formal witness, was very important in the instant case because the Investigating Officer could provide link, the view express by Jharkhand High Court in the case of S.K. Badruddin @ Budhua v. State of Jharkhand (Supra) is very relevant according to which, it may cause prejudice to the appellants. The other ruling cited by learned counsel for appellants in the case of Abbas Ahmad Choudhary v. State of Assam (Supra) is also very relevant there can be no presumption that a prosecutrix would always tell entire story truthfully at least there should have been slight corroboration either from formal witness i.e. Doctor, Investigating Officer or Chemical Examination report or by any person who immediately after occurrence was informed about the incident It is not necessary that accused should justify his false implication. Had the case been established then in rebuttal, accused would have to establish innocence but since the prosecution case itself has not been established beyond all reasonable doubt, it was not necessary for the accused to establish false implication. The Investigating Officer even did not take care to establish the identity of the accused. The name of one Imran has surfaced but he has no connection with the crime. No identification parade took place and in sole incident nobody could identify the person by his name merely because each one was calling themselves by name. Therefore, essence of prosecution story is not based on sound footing. I am, therefore, of the opinion that prosecution testimony of the prosecutrix is not worthy of reliance.

18. Accordingly both the appeals are allowed. The appellants are liable to be acquitted from the charges in Sessions Trial No.899 of 2007 ; State v. Eijaz and another, Case Crime No.77 of 2001, Police Station Bazar Khala District Lucknow, under Section 376 I.P.C. read with Section 3 (i) (xii) S.C. & S.T. Act. The appellants are languishing in jail. They be released immediately, if not wanted in any other case.

19. The Registrar of this Court to communicate this order to the Jail Superintendent concerned.

Order Date :- 16.5.2013

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