Om Prakash Alias Bantu vs State Of U.P.
2015 Latest Caselaw 2000 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED					         		 AFR
 
Court No. - 41							         
 
Case :- CRIMINAL APPEAL No. - 2624 of 2014
 
Appellant :- Om Prakash Alias Bantu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sanjay Rajpoot,B.D. Sharma,Vinod Shanker Tripathi
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Mohd. Tahir,J.

This criminal appeal has been filed against the judgment and order dated 19.6.2014 passed by Additional Sessions Judge, Court No.2, Pilibhit in ST No.330 of 2013 (State vs. Ram Vilas and another) whereby accused appellant Om Prakash @ Bantu has been convicted and sentenced under Section 12oB read with Section 363 IPC to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.20,000/- with default clause and further convicted and sentenced to undergo rigorous imprisonment for 10 years under Section 376 (2)(g) IPC and to pay a fine of Rs.20,000/- with default clause. Both the sentences were ordered to run concurrently.

2. Eschewing unnecessary details the prosecution case, in brief, is that on 6.3.2013 at 3.30 p.m. one Sant Ram lodged a written report in P.S. Bisalpur (Pilibhit) to the effect that on 25.2.2013 at about 10 o'clock in the night co-accused Ram Vilas had enticed away his daughter (hereinafter referred to as 'the prosecutrix') aged about 14 years. The people of the village had seen him taking his daughter along with him and that in the elopement of his daughter there is hand of accused appellant Om Prakash @ Bantu. He and his family members had searched the prosecutrix at the residences of their relatives and other places but the whereabouts of his daughter could not be known.

On the basis of the above written report (Ext.Ka.1), Constable C.P. Dhanpal Singh (PW-8) prepared the Chick FIR (Ext.Ka.11) and registered the case under Section 363 and 366 IPC against accused Ram Vilas and accused appellant Om Prakash @ Bantu at Crime No.345/13 in P.S. Bisalpur District Pilibhit. He had also made an entry in that regard in the General Diary of that police station, the extract of which is Ext.Ka.12.

3. The investigation of the case was entrusted to S.I. Dhirendra Kumar Tiwari (PW-7) who after making spot inspection prepared site plan (Ext.Ka.8) and recovered the said prosecutrix on 7.3.2013 from Bisalpur Railway Corssing from the company of co-accused Ram Vilas and in that regard prepared recovery memo (Ext.Ka.9) and thereafter on 15.3.2013 he had given the prosecutrix in the supurdugi of her father and a Supurduginama (Ext.Ka.2) was also prepared in that regard.

4. On the next day of the recovery i.e. on 8.3.2013 the prosecutrix was referred to District Women Hospital, Pilibhit where she was medico-legally examined by Dr. Santosh Rana (PW-5) at 1.30 p.m. On her external examination Dr. Santosh Rana found no mark of external injury present on the body of the prosecutrix. The height of the prosecutrix was found 150 cm.; her weight was found 35 kg.; her teeth were found 14/14 and her breast was found developed. Axillary and pubic heir were also found.

On internal examination the doctor found hymen of the prosecutrix old raptured. Vagina admitted one finger easily. No edema, no tenderness was found on the private part of the prosecutrix. Blood was found coming from the cervix. No mark of injuries was found on the private part of the prosecutrix. Two vaginal slides were prepared by the doctor and sent to Pathologist District Hospital, Pilibhit for determination of presence of spermatozoa. The doctor further advised x-ray of right wrist joint, right elbow joint, right knee joint and right sternoclavicular joint for determination of the age of the prosecutrix. The medico-legal examination report is Ext.Ka.5. As per x-ray report (Ext.Ka.3) following things were found:

(I)X-ray (Rt) elbow - The epiphysis around elbow except lateral epicondyle of humerus fused with corresponding bones. Lateral epicondyle of humerus is not fused with humerus.

(II)X-ray (Rt) knee - The epiphysis around knee are not fused with corresponding bones.

(III)X-ray (Rt) wrist - The epiphysis around wrist are not fused with corresponding bones.

(IV)X-ray (Rt) sternoclavicular joint - The epiphysis of right clavicle is not fused with clavicle.

As per Pathologist report (Ext.Ka.4), no dead or alive spermatozoa was seen in the vaginal smear of the prosecutrix.

5. The Investigating Officer after collecting the medical reports and completing the investigation submitted the charge sheet against the accused appellant and co-accused Ram Vilas under Section 363 and 366 IPC. The charge sheet is Ext.Ka.10. This charge sheet was filed in the court of the Magistrate concerned where from this case was committed to the court of Sessions and from the court of Sessions this case was transferred to the court below for disposal.

6. The trial court framed charges under Section 363 and 366 IPC against co-accused Ram Vilas and accused appellant Om Prakash @ Bantu.

7. Thereafter the prosecution examined eight witnesses to prove its case against the accused persons. Out of these witnesses, PW-1 Sant Ram is the first informant of this case. He is the father of the prosecutrix. He proved the First Information Report (Ext.Ka.1). PW-2 is the prosecutrix. PW-3 is Dr. Udai Veer Singh who proved x-ray report (Ext.Ka.3) and x-ray plate (Ext.1). PW-4 is Dr. Mahavir Singh who is the Pathologist and he proved his report (Ext.Ka.4). PW-5 is Dr. Santosh Rana who proved medico-legal examination report (Ext.Ka.5). PW-6 is Hukam Singh Yadav who was the Incharge Head Master of Purva Madhyamik Vidyalaya Khakuma Block Bisalpur District Pilibhit. He proved the date of birth of the prosecutrix from the admission register of his school. The extract of the admission register is Ext.Ka.6, according to which the date of brith of the prosecutrix is 19.2.1999. He proved the T.C. (Ext.Ka.7) also. PW-7 is Inspector Dhirendra Kumar Tiwari who is the Investigating Officer of this case. He proved the site plan (Ext.Ka.8), recovery memo (Ext.Ka.9) and Supurduginama (Ext.Ka.2) and also proved the investigation conducted by him. He had further proved the charge sheet (Ext.Ka.10) submitted by him in the court of Magistrate concerned. PW-9 is Constable C.P. Dhanpal Singh who proved the Chick FIR (Ext.Ka.11) and extract of G.D. (Ext.Ka.12).

8. The accused appellant in his statement recorded under Section 313 Cr.P.C. had denied the prosecution case and further stated that the witnesses had given false evidence against him; that due to enmity he had been falsely implicated in this case; that the step mother of the prosecutrix had scolded her before the said incident and due to her scolding she had gone from her house to somewhere and she on her own accord returned to her house and that a false case had been fabricated against him due to enmity.

9. The trial court after hearing the counsel for both the sides and perusing the evidence available on record, convicted the accused appellant under Section 120B read with Section 363 IPC and sentenced him to undergo R.I. for 7 years and a fine of Rs.20,000/- and in default of payment of fine the accused appellant was directed to undergo further imprisonment for three years. The trial court has further convicted the accused appellant under Section 376 (2) (g) IPC and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 20,000/- and on non-payment of fine to undergo further imprisonment for four years.

10. Aggrieved by the judgment and order of the trial court accused appellant Om Prakash @ Bantu has filed this criminal appeal.

11. I have heard learned counsel for the accused appellant Om Prakash @ Bantu, learned AGA for the State and perused the evidence available on record.

12. Learned counsel for the accused appellant has submitted that as per the First Information Report the only allegation against the accused appellant was this that he had entered into conspiracy with co-accused Ram Vilas for getting the prosecutrix eloped with him and that the prosecutrix also on being recovered after about 10 days of the occurrence had levelled no allegation of rape against the accused appellant; that the said prosecutrix was also not recovered from the company of the accused appellant and that the said prosecutrix had on her own sweet will eloped with co-accused Ram Vilas, she remained with him for about 10 days and had also been recovered from his company. So the allegations that the said prosecutrix had eloped with co-accused Ram Vilas due to the conspiracy of the accused appellant and that the accused appellant along with the co-accused had committed gang rape upon the prosecutrix are baseless and the statement of the said prosecutrix to that effect is not believable.

On the other hand, learned AGA has supported the impugned judgment and order of the court below and further submitted that the said prosecutrix in her earlier statement dated 1.10.2013 on oath had categorically stated that the accused appellant and co-accused Ram Vilas had taken her away to canal from the garden where she had gone to ease herself and she was raped by both the accused. So the trial court has committed no error in convicting the accused appellant under Section 120B read with Section 363 and 376 (2) (g) IPC.

13. I have considered the rival submissions of counsel for both the parties.

14. The prosecutrix in her statement recorded on 1.10.2013 had supported the prosecution case and thereafter on the basis of the said statement, an additional charge under Section 376(2)(g) IPC was also framed on 2.1.2014. After framing the additional charge the prosecutrix was recalled for further cross-examination by the defence counsel. The prosecutrix in her statement recorded on 8.1.2014 resiled from her earlier statement and had categorically stated that she had given her earlier statement due to tutoring and under the pressure of police. In the statement dated 8.1.2014 she had clearly stated that her step mother had scolded her before the said incident and due to her scolding she had gone from her house to somewhere in anger and she on her own accord returned after 8-10 days to her house. She had further clearly stated that both the accused Ram Vilas and Om Prakash @ Bantu had not taken her away nor enticed her away nor they had committed rape upon her. She had further stated that what he had said today is right and her earlier statement was given by her under the pressure of police and on being tutored. Thus in these circumstances, the finding of the court below that she resiled from her earlier statement due to pressure of the police or due to some monetary gain does not appear to be logical as there is no evidence on record to show that any pressure was exerted on the prosecutrix or any money was paid to her for changing her earlier statement. So the view of the trial court is based on conjectures and surmises and hence the same is not sustainable. Her subsequent statement may be true and may be given by her after being impelled by her inner conscience. It is well settled law that when two views are possible and out of them one view points to the guilt of the accused and the another one points to the innocence of the accused, the view favourable to the accused should be adopted. In this regard I can do no better than to refer the ruling of the Supreme Court rendered in the case of Kali Ram Vs. H.P. 1973 (2) SCC 808.

15. Even if the earlier statement of the prosecutrix is scrutinized in the proper perspective of the matter, that also does not inspire confidence because on being recovered she remained in police station for about eight days and during this period her statement was not got recorded under Section 164 Cr.P.C. and that she in her statement recorded under Section 161 Cr.P.C. had levelled no allegation of rape against any of the accused as is clear from the statement of the Investigating Officer. The Investigating Officer had also clearly stated that during the whole investigation the specific role of the accused appellant Om Prakash @ Bantu has not come into light and that during investigation witness Shankar Lal had told about the hand of the accused appellant Om Prakash @ Bantu in the elopement of the said prosecutrix. But that witness Shankar Lal has not been produced by the prosecution in the trial court. So there is no reliable evidence as regards the conspiracy allegedly hatched by the accused appellant in getting the prosecutrix eloped away with co-accused Ram Vilas. The contention of the prosecution that the Investigating Officer had not deliberately recorded the statement of the prosecutrix as regards the commission of rape by the accused persons upon her has also no substance as there is nothing on record to show that the Investigating Officer had any enmity with the prosecutrix or with her father or had any affinity with the accused person. The Investigating Officer is also a public servant and there is a presumption in his favour also under Section 114 (e) of the Evidence Act that the official act done by him in the discharge of official duties was regularly performed by him. So it cannot be inferred in the absence of any cogent evidence that the Investigating Officer deliberately did not record the statement of the prosecutrix as regards the commission of rape upon her.

16. The view of the trial court that the vaginal smear of the prosecutrix was sent for test by the Investigating Officer indicates that some statement of the prosecutrix as regards the commission of forcible intercourse was made before him is also based on conjectures and surmises because it is not the function of the Investigating Officer to send the vaginal smear of the prosecutrix for chemical examination. It is the function of the doctor concerned who, in the safe side, prepares the slide of the vaginal smear and sends the same for examination to ascertain the presence of the spermatozoa therein.

17. PW-1 Sant Ram who is the father of the prosecutrix on being recalled after the amendment of the charge had stated in his earlier statement that her daughter had told him that both the accused had committed rape upon her and had threaten her to kill by throwing into the canal but in cross-examination which was done after he was recalled he had stated that he cannot tell the date and day on which he was told by her daughter about the commission of rape upon her for the first time. He cannot recollect as to whether the same was told to him after one month or 1-1/2 months of the recovery of the prosecutrix. His daughter had not told him as to which of the accused when and where had committed rape upon her. So there is ripple in his evidence also as regards the allegation of rape as well as conspiracy allegedly hatched by the accused appellant. Hence the testimony of both the witnesses of fact is self-contradictory and there is a ripple in their testimony. So on the basis of such a shaky and self-contradictory evidence it does not appear safe to sustain the conviction and sentence of the accused appellant.

18. For the foregoing reasons and discussion, I come to this conclusion that the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and the court below has committed error in convicting and sentencing the accused appellant. So the impugned judgment and order is not warranted by law and facts on record and the same is liable to be set aside.

19. In the result, the appeal succeeds and is accordingly allowed. The impugned judgment and order of the trial court dated 19.6.2014 as regards the accused appellant is hereby set aside. The accused appellant Om Prakash @ Bantu is not found guilty of any of the charges framed against him and he is acquitted of all the charges levelled against him. So he be set at liberty forthwith if he is not wanted in any other case.

20. Office is directed to communicate this order to the lower court record for compliance to the lower court for compliance at the earliest and to return the lower court record along with the copy of this judgment.

Order Date :- 27.8.2015

SP