Gajendra @ Gabdoo vs State Of U.P.
2015 Latest Caselaw 1757 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									       A.F.R.										       RESERVED
 
Court No. - 26
 

 
Case :- CRIMINAL APPEAL No. - 1221 of 2007
 

 
Appellant :- Gajendra @ Gabdoo
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- D.R. Choudhary,J.S. Lodhi,K.Kumar Tripathi,Ranjeet Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Raghvendra Kumar,J.

(Per Raghvendra Kumar, J.)

1. Heard learned counsel for the appellant, learned A.G.A. for the State of U.P. and perused the record.

2. This appeal has been preferred on behalf of the appellant Gajendra @ Gabdoo against the judgement and order dated 27.1.2007 passed by the Additional Session Judge, Jalaun at Orai in S.T. No. 126 of 2006, under section 376 I.P.C. P.S. Kotra, District Jaluan whereby the accused-appellant has been convicted for the offence under section 376 I.P.C. and sentenced imprisonment for life and fine of Rs.10,000/- and in default of payment of fine he has to undergo simple imprisonment for six months.

3. Briefly stated prosecution version is that one Hari Ram, P.W.1, informant/complainant has lodged information with the police station Kotra stating there in that his niece Km. Sita aged about 6 years disappeared on 29/30-4-2006 in the morning at about 4.00 a.m. She was searched and during the course search the informant Hari Ram accompanied by Udai Veer and Lakshmi reached to the village Nunsai where in a field adjacent to the herb, he heard the noise of the girl Km. Sita. Then he reached at the spot and saw that Gajendra @ Gabdoo was committing sexual intercourse with Km. Sita at about 7.00 a.m. in the morning. On raising alarm the accused fled away from the spot and could not be apprehended/ arrested. The girl was brought at home and matter was discussed with the Pradhan of the village and family persons. She was taken to the private Doctor for immediate treatment since the conditions was very serious. The information was given to the father of the prosecutrix Km. Sita. The information was lodged with the police station on 1.5.2006 at about 0.10 a.m. The distance of the police station is 13 kms from the place of occurrence. During the course of investigation the statements of the witnesses were recorded and the prosecutrix was got medically examined. The investigation culminated into the filing of police report in the shape of charge sheet.

4. The defence case is that due to village partybandi and groupism, the appellant has been falsely implicated in this case.

5. After complying the procedure contemplated under Cr.P.C. , the file was committed to the court of sessions whereupon the charge was framed against the accused-appellant, Gajendra @ Gabdoo for the offence under section 376 I.P.C. who denied the charge and claimed trail on merits.

6. To substantiate the charge against the accused-appellant, the prosecution has examined P.W.1, Hari Ram who has supported the prosecution story and has reiterated the F.I.R. version and proved the written report Ex. Ka.1. Nand Kishor alias Nandu has been examined as P.W.2 who is father of the prosecutrix Km. Sita aged about 6 and half years , Udai Veer and Lakshmi have been examined as P.W.4 and 5. Head constable P.W.6 Gyasi Ram is formal witness who has proved the execution of Chick F.I.R. Ex.Ka.2 and relevant entry of G.D. Ex.Ka.3. P.W.7, S.K. Rai is the Investigating Officer who has proved the execution of site plan Ex. Ka.4. He has recorded the statement of witness and after concluding the investigation submitted the charge sheet Ex. Ka.5. P.W.8, Dr. M.C. Mittal has proved the execution of X-Ray report. P.W.9, Dr. Pushplata has proved the medico examination report Ex. Ka.7 and pathological test/report of semen test Ex. Ka.8. P.W.10 Sailoj Chandra, Civil Judge, Jr. Division has proved the execution of the statement recorded under section 164 Cr.P.C. Ex. Ka.10.The accused has not led any evidence in defence.

7. It has been submitted by the learned counsel for the accused-appellant that he is innocent. He is living in the vicinity. It is because of enmity, political rivalry and the village groupism, he has been falsely implicated in the offence. There is no evidence on record against the appellant except the evidence of the informant/complainant who has falsely deposed against the appellant.

8. It has been submitted by the learned A.G.A. that the prosecutrix is aged about 6 years as mentioned in the F.I.R whereas the prosecutrix was of lesser age as per the medical examination report. The prosecutrix was taken by the accused-appellant to the village Nunsai where in a herb, the prosecutrix was sexually assaulted. She sustained injuries. She has supported the incident of sexual assault in her statement recorded under section 164 Cr.P.C. during the investigation. P.W.1, informant/complainant, Hari Ram and Udai Veer and Lakshmi had seen the incident.

9. This appeal has been preferred against the conviction recorded by the learned court below. Before entering into the merits of the appeal, it appears essential to discuss the guidelines propounded by Hon'ble Apex Court from time to time for exercising appellate jurisdiction by the High Court.

10. The Hon'ble Apex Court has propounded the following principles in Padam Singh Vs. State of U.P. reported in 2000 (1) SCC 621 which is quoted here :

"it is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independant conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

11. Further guidelines have been issued by the Hon'ble Apex Court in case of Rama & others vs. State of Rajasthan reported in 2000 (4) SCC 571 which is as under:

"It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

12. The guidelines have been issued by three Judges Bench of the Hon'ble Apex Court in case of Majjal Vs. State of Haryana, 2013 (6) SCC 798 which is as under:

"It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which to to the root of the matter."

13. The aforesaid observations have been quoted by the Hon'ble Apex Court in a very recent judgment in the case of Kamlesh Prasad and Anr V. State of Gujarat reported in 2014 Cr.LJ 443.

14. On the basis of the propositions discussed above, it can safely be deduced that the evidence is to be appreciated by the High court while exercising the appellate jurisdiction, on its merit and to see that the evidence which has been relied upon by learned court below is credible, reliable and trustworthy. The evidence is to be appreciated and the inference is to be drawn on the basis of evidence when it is found to be inspiring confidence. The presumption of innocence of accused is always there unless otherwise is proved. On the basis of the principle enunciated by the apex court, the evidence of this case is to be considered, appreciated and relied upon without being influenced by the finding of conviction recorded by learned trial court.

15. In the instant case P.W.2, Nand Kishor alias Nandu is the father of the victim girl P.W.3 of aged about six years. Udai Veer and Lakshmi, P.W.4 and 5 respectively are eye witnesses who are alleged to have seen the incident have not supported the prosecution version and have been declared hostile.

16. Hon'ble Apex Court has been pleased from time to time to enunciate the guidelines for appreciation of evidence of a hostile witness which has been reiterated in the case of Ramesh Harijan Vs. State of U.P. AIR, 2012 SC 1979 as under:

"18. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution choose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is fond to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey vs. State of Orrisa, AIR 1977 SC 170; Syad Akbar vs. State of Karnatka, AIR 1979 Sc 1848; and Khujji @ Surendra Tiwari vs. State of Madhya Pradesh, AIR 1991 SC 1853).

19.In State of U.P. vs. Ramesh Prasad Misra & another, AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde vs. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951; Sarvesh Narain Shukla v. Daroga Singh & Ors.,AIR 2008 SC 320; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462.

Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence (see also; C. Munipapan & Ors, v. State of Tamil Nadu, AIR 2010 Sc 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36)."

17. The legal position has thus been crystallised on the subject. The testimony of hostile witness can not be altogether discarded as a whole but for appreciating the evidence of hostile witness court has been enjoined with the duty to scrutinise the testimony of hostile witnesses with care and to select portion of evidence which are credible and reliable and inspire confidence. Such evidence can be relied upon for drawing the inference either in favour of the accused or prosecution.

18. In the instant case P.W.2 Nand Kishor alias Nandu father of the prosecutrix has denied the occurrence. He has even denied about private treatment of prosecutrix, if any. The witness was declared hostile at the request of A.D.G.C. ( Crl) Who was accorded permission to cross examine the P.W.2, but nothing could be extracted by way of cross examination from the witness. As such, the testimony of P.W.2 is of no avail for the prosecution. P.W.4 Udai Veer and P.W.5. Lakshmi have also not supported the prosecution version. These witnesses have been declared hostile at the request of A.D.G.C (Crl) who has been accorded permission to cross examine the P.W.3,P.W.4 but nothing could be extracted from these witnesses by way of cross examination. The defence has not cross examined the witness. The witnesses have not supported the prosecution version. Thus, the testimony of P.W.2,P.W.3 and P.W.4 is of no avail for the prosecution.

19. P.W.3, Km. Sita allegedly victim of the incident. She was aged about 6 and half years at the time of recording of the statement. She is a child. For appreciation of the testimony of the child witness. Hon'ble supreme court has laid down following guidelines.

20. In the case of State of Rajasthan vs Chandgi Ram & Ors reference to Criminal Appeal no.937 of 2008 decided on 9.9.2014 the Hon'ble Apex Court has highlighted the safeguards, which the Courts should undertake for appreciating the evidence of a child witness. The safeguards have been disclosed in paragraph 11, which are being reproduced below:

"The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him [pic] and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. The law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. It is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The priniciples that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable."

21. P.W.3 Km. Sita, prosecutrix has stated before the court that she does not recognise the accused Gajendra alias Gabdoo present in the court. She has stated that she was sleeping. She could not know who took her to the field. The person who took her to the field did nothing with her. She has not sustained any injury. She further expressed inability to disclose that who brought her to the home from the field. She has proved the execution of the statement under section 164 Cr.P.C. but at the same time in her cross examination she has admitted that when her Phupha and police personnel brought her to the court, they had instructed her about what she had to depose. As per instructions she deposed. She had not given statement as per her own will. After seeing the accused in court she categorically stated that the accused did not do anything with her. The witness has denied the factum of bleeding from the private parts. The witness has not at all supported the prosecution version.

22. P.W.3 being child witness there is no legal impediment in the light of the aforesaid ruling from placing reliance upon the testimony of the child witness. She is a competent witness. The question is to ensure whether the child deposing before the court was intelligent enough to differentiate between right and wrong. In the instant case, the trial court had put questions to P.W.3 victim girl prior to recording of her statement just to ensure whether she was capable of replying queries for appreciating right or wrong.

23. It is established in law that the statement under section 164 Cr.P.C. is the statement just recorded during the course of investigation. The statement under section 164 Cr.P.C. was recorded by P.W.10. He has proved the execution of the statement recorded by him in official capacity. P.W.10. Sailoj Chandra is judicial officer of the rank of Civil Judge, (Jr. division) who has recorded the statement under section 164 Cr.P.C. of Km. Sita in due discharge of official obligation. Now there is anomaly between oral testimony of P.W.3 and the statement of the prosecutrix recorded under section 164 Cr.P.C. The prosecutrix has categorically denied of any incident that took place with her and more particularly she has categorically stated that she does not recognise the accused-appellant present in the court and her admission that the person who had taken away her to the filed did nothing with her. The statement under section 164 Cr.P.C. has not been corroborated by P.W.3. Victim through her oral testimony. Even on taking statement under section 164 Cr.P.c. on its face value the prosecutrix has given explanation why she had given such statement. From her oral statement, it is evident that the statement under section 164 Cr.P.C. was given by her as per instructions given by her Phupha and police personnel. It was not given by her from her own will. The whole statements of section 164 Cr.P.C. is demolished. In the light of admission of P.W.3., Km. Sita the statement under section 164 Cr.P.C. can not be relied upon and it has lost its value. Over all evaluation of the evidence of P.W.3 it can safely be held that it is of no avail for prosecution.

24. P.W.8, Dr. M.C. Mittal is Radiologist. He has assessed the age of the prosecutrix to be four years and he has proved the execution of X-Ray report. His testimony is of formal nature. Dr. Pushplata has medically examined the prosecutrix after incident of rape. She has also proved the execution of the pathological and medical examination report. P.W.9 Dr. Pushplata Verma has mentioned the injury of abrasion on the back of the prosecutrix and on internal examination she has observed two stitches on the private part of the prosecutrix. She in her cross examination categorically admitted that she did not notice any sign of rape. As such, she has not expressed any opinion about rape. If there has been rape with the minor girl 4-6 years of age, the chance of heavy injuries or symptoms of rape can not be ruled out. P.W.7, Investigating Officer has not recorded the statement of the prosecutrix under section 161 Cr.P.C. It is relevant to consider that the Investigating Officer did not record the statement of the prosecutrix under section 161 Cr.P.C., on the other hand, he took initiative for recording the statement under section 164 Cr.P.C. It appears anomalous circumstance. This aspect goes against the prosecution.

25. Thus, remains the testimony of P.W.1 Hari Ram for critical appraisal in the light of discussion made above. Even for the argument sake the entire testimony of Hari Ram informant/complainant is taken to be true, in the absence of clear cut denial of the prosecutrix of the factum of rape, it can not be relied upon or acted upon and no inference can be drawn on the basis of the testimony of Hari Ram, informant/complainant. P.W.3 has categorically denied of any act of sexual assault by the accused-appellant.

26. No evidence has been led to the effect that the accused-appellant is father of Manju by the prosecution whereas the defence has denied the fact.

27. Learned court below has recorded the finding of conviction against the accused-appellant. The finding recorded by learned court below can not be justified in the light of evidence available on record and as such can not be sustained. Learned court below has erred in recording the findings of conviction against the accused-appellant. Sufficient evidence is not available to justify the finding. The accused appellant is entitled for benefit of doubt.

28. In view of the aforesaid discussions, the appeal deserves to be allowed and the accused-appellant deserves to be acquitted. Hence the impugned judgment of conviction and sentence dated 27.1.2007 is hereby set aside. The Criminal Appeal is allowed. The accused-appellant, Gajendra @ Gabdoo is acquitted for the offence under section 376 I.P.C. P.S. Kotra, District Jalaun. The appellant is in jail. If the accused-appellant is not wanted in any other case, he shall be released forthwith.

30. The lower court record alongwith copy of this judgement and order be transmitted to the lower court for compliance.

Order Date : 11th August, 2015.

R/KU

(Raghvendra Kumar,J.) (Arvind Kumar Tripathi,J.)