Ramesh Nishad vs State Of U.P. And 3 Others
2014 Latest Caselaw 9326 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 36
 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 4538 of 2014
 
Appellant :- Ramesh Nishad
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Brijesh Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(By Hon'ble Vijay Lakshmi J.)

This appeal under section 372 Cr.P.C. arises out from the judgment and order dated 12.9.2014 passed by the Additional Sessions Judge, Court No. 5, Kanpur Nagar, in S.T. No. 247 of 2011, State Vs. Pinku and others, in Crime No. 226 of 2010, under Section 376(2)(g) I.P.C. Police Station Chhawani, District Kanpur Nagar, whereby the trial court has acquitted all the accused persons.

We have heard learned counsel for the appellant, learned AGA and perused the record.

The prosecution case in brief is that a written report was lodged at Police Station Chhawani, District Kanpur Nagar, by the informant Ramesh Nishad mentioning therein that on 18.11.2010 at about 10.30 P.M. his daughter Resham, aged about 15 years, had gone to attend the call of nature when the accused Pinku, Arun and their friends took her to the bank of river Ganga. They committed maarpeet with her and gang raped her. After that all the accused persons threatened to kill her and ran away. His daughter returned to her home in an injured condition but she, due to fear and shock, did not tell about the incidence to anyone. After some days she informed about the incident to her mother, whereupon a report was lodged at Police Station Chhawani. On the basis of this report a criminal case under section 376, 323, 506 I.P.C. was registered at Crime No. 226 of 2010 against Pinku, Arun and two unknown persons and the matter was investigated. During investigation name of accused Rajbabu came to light, hence the police submitted charge sheet against Pinku, Arun and Rajbabu, (who are respondent nos. 2, 3 and 4 respectively in the instant appeal).

The case being triable by the court of Sessions, it was committed to the Sessions Court, where charges were framed and the trial commenced. The prosecution in order to prove its case produced five witnesses in all out of which only two witnesses were examined as witnesses of fact, PW1 is the prosecutrix herself and PW2 is her father (appellant Ramesh Nishad).

A careful scrutiny of the judgment impugned shows that PW1, the prosecutrix has supported the prosecution story in her examination in chief by stating that on 18.11.2010 at about 10.30 P.M. she had gone to the fields to attend the call of nature. Her mother was sitting at the door, when she was returning to her home suddenly respondent Pinku reached there. Showing the knife he pressed her mouth and took her to the bank of river Ganga, which place is situated at about 200 Mts from her home. She tried to save herself by lifting a brick but accused Pinku asked Arun to catch hold of her. Thereafter 4-5 more boys came there and all boys committed maarpeet with her. Two boys caught hold of her hand and two boys caught her legs and all of them committed rape with her. She somehow managed to reach her home after about 1 or 1-1/2 hours. Her mother took her to the doctor but she did not inform her mother about the occurrence due to fear.

However, during her cross examination, she has admitted that adjacent to her house there is a "Sulabh Sauchalaya" and all the residents of that area use that Sulabh Sauchalaya. She has stated that she had gone to ease herself at the place, which is situated at a distance of only 4-5 paces from her home. Although, she has alleged in the FIR that the accused persons committed marpeet with her by fists and kicks but the aforesaid version of FIR does not find support with her testimony in court. More so, her statement suffers from material contradictions regarding the manner in which the alleged injuries have been sustained by her. In her examination in chief she has stated that accused Pinku pushed her down on the ground due to which her eye got injured but during cross- examination, she has again changed her statement by deposing that when she was returning to her home she fell down and sustained injury. It is worth mentioning that the doctor has not found any injury on her body. She has further stated that when she fell down and sustained injuries her father and her Bade Papa had reached there and they took her to home but the father of the prosecutrix examined as PW2, has stated that at the time when her daughter had left the home for attending the call of nature, he was sleeping and at about 12.00 or 1.00 A.M. in the night, when his daughter returned to home, his wife got him awake. Thus there appears material contradictions between the above statement of PW1 and PW2

The medical evidence in this case does not support the story of rape as the doctor has not found any external or internal injury on the body of the prosecutrix and as per her radiological report, she has been found to be more than 18 years of age.

There is a delay of six days in lodging the FIR without any explanation for the same. So far as the complicity of accused Raj Babu, is concerned, the prosecutrix has admitted that she cannot tell how the name of accused Rajbabu has come into light in this case. No identification parade has been conducted by the prosecution despite the fact that the FIR has been lodged against two unknown persons also apart from the named accused. The prosecutrix has not named any other accused except Pinku and Arun in her statements. She has not identified accused Rajbabu even in the court. Therefore, there is no evidence against accused Rajbabu.

The mother of the prosecutrix has not been produced by the prosecution, who was the first person to whom the prosecutrix had informed about the occurrence. The mother had taken the prosecutrix to doctor for treatment and she was sitting at the door of the home when the prosecutrix had left the home, for attending the call of nature at a place situated only 4-5 paces away from the place where the mother was sitting. In preponderance of probabilities, under this situation, it cannot be assumed that the mother could not have noticed the accused Pinku while he was forcibly taking away her daughter from a distance of only 4-5 paces. The mother could have been the best witness to explain all these facts but as the prosecution has withheld her for the reasons best known to it, the prosecution story becomes wholly doubtful.

In a catena of judgments the Hon'ble Supreme Court has reiterated the law that withholding of an important material witness brings the prosecution case under suspicion.

The learned trial court has placed reliance on the following Judgments of Hon'ble Supreme Court to disbelieve the prosecution case.

(1) 2009(1) SCC (Criminal) 17, Laliram and others Vs. State of M.P.

(2) 2013 (3) C.C. S. C. 1458 (SC) Rajesh Patel Vs. State of Jharkhand.

(3) 2007(57) ACC 471 (SC) Ramdas and others Vs. State of Maharashtra.

The reasons given by trial court in wake of above cited verdicts of Apex Court, appear cogent and sound. The testimony of prosecutrix, being full of contradictions, embellishment, exaggerations and discrepancies, there was no other option before the learned trial court, except to acquit the accused persons. We do not find any illegality or infirmity in the judgment. The appeal lacks merits and is liable to be dismissed.

The appeal is dismissed at the admission stage itself.

Order Date :- 28.11.2014

Pcl