Arvind vs State Of U.P.
2015 Latest Caselaw 3704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Court No. - 27
 
Case :- CRIMINAL APPEAL No. - 3027 of 2015
 
Appellant :- Arvind
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sharad Malviya,Yogendra Singh Parihar
 
Counsel for Respondent :- Govt.Advocate
 
Hon'ble Mrs. Ranjana Pandya,J.

1. This appeal has been preferred by the appellant against the judgment passed by Additional Sessions Judge, Fast Track Court, Mahoba dated 12.06.2015 in S.T. No. 148 of 2008, arising out of Case Crime No. 356 of 2008, under Sections 363, 366, 368, 376, 380 and 506 I.P.C., Police Station Mahobkanth, District Mahoba, whereby the appellant was found guilty and convicted under Section 366 I.P.C. for five years R.I. and a fine of Rs. 2000/- with default stipulation, under Section 368 I.P.C. for five years R.I. and a fine of Rs. 2000/- with default stipulation and under Section 376 I.P.C. for seven years R.I. and a fine of Rs. 3000/- with default stipulation. All the sentences were to run concurrently.

2. Brief facts of the prosecution case is that, the first information report was lodged by the informant PW-1 Maan Singh on 29.04.2008 at 11:00 A.M. at the Police Station Mahobkanth stating that on 24.04.2008, his minor daughter Kumari Sanju aged about 15 years was enticed away by Arvind. His golden neckless weighing 25 gms., golden belt weighing 80 gms., four golden bangles weighing 2 tolas, silver Payal weighing 250 gms., other jewellery and Rs. 4200/- in cash was also taken by Arvind. the informant was busy in tracing out his daughter but he could not trace her. He came to know that Arvind, his brother-in-law Mangal and his son Santosh were instrumental in enticing away his minor daughter, hence, the first information report was lodged.

3. On the basis of this first information report, Head Constable Satya Kumar, PW-7 prepared the chick report and proved it as Exhibit Ka-11. On the basis of this chick report, relevant entries were made in the G.D. which were proved by this witness as Exhibit Ka-12. The investigation of the case was entrusted to PW-5 S.I. Chandi Lal Verma on 29.04.2008. He copied the report in the C.D. and recorded the statement of Head Constable Satya Kumar and Maan Singh, the informant. On 02.05.2008, he inspected the spot and prepared the site plan and proved it as Exhibit Ka-4. On the same day, this witness recorded the statements of Sushila, Rinki, Om Prakash and Vikram Singh. He went to the Primary School, Tikaria and obtained the age certificate of the victim in which her date of birth was mentioned as 03.12.1989 which was proved as Exhibit Ka-5. On 06.05.2008, the accused Santosh and Mangal were arrested and their statements were recorded by this witness. On 18.05.2008, on the basis of information received from the informer, the victim was recovered and handed over to her parents, prepared its 'Supurdginama' and proved it as Exhibit Ka-6. The victim was sent for medical examination finally and this witness has submitted charge sheet against the accused person and proved it as Exhibit Ka-7. He also proved the supplementary charge sheet which was submitted against Rajendra Singh, Mangal Singh, Smt. Meera and Santosh.

4. The prosecution also examined PW-2 Smt. Sanju Devi, the victim who has proved her statement under Section 164 Cr.P.C. as Exhibit Ka-2. PW-3 Rinki is daughter of the informant and sister of the victim. PW-4 is Smt. Sushila is the mother of the victim and wife of the informant. PW-6 is Dr. Rashmi Sharma, Medical Officer who examined the victim and proved the medical report as Exhibit Ka-9 and the reference slip as Exhibit Ka-10.

5. After these seven witnesses were examined before the trial court, the prosecution closed its evidence and statement of the accused persons were recorded under Section 313 Cr.P.C.

6. In the statement under Section 313 Cr.P.C., all the accused persons have denied the occurrence and said that they had been falsely implicated in this case. The accused persons examined DW-1 Prem Narayan as defence witness.

7. Learned lower court after perusal of the evidence on record and hearing the counsel for the parties acquitted the accused Rajendra Singh, Mangal Singh, Smt. Meera and Santosh and found the accused Arvind guilty and convicted him as aforesaid.

8. I have heard Sri Yogendra Singh Parihar, counsel for the appellant, learned A.G.A. for the state and perused the material available on record.

9. The following points were raised during the course of arguments by the counsel for the parties.

* That there was inordinate delay in lodging the first information report.

* That all the witnesses except formal witnesses produced by the prosecution are interested witnesses, hence, their evidence cannot be relied upon.

* The victim was a consenting party and she was major, hence the conviction is bad in the eyes of law.

(i) That there was inordinate delay in lodging the first information report :-

Admittedly, as per prosecution case the occurrence took place on 24.04.2008 but the time of occurrence is wanting in the first information report, thus for the purpose, the court has to take the aid of the statement of PW-1 Maan Singh.

Perusal of the statement of PW-1 Maan Singh reveals that according to him, his daughter was enticed away somewhere between 9 to 10 A.M. The report of the said incident was lodged on 29.04.2008 at 11:00 A.M. The distance of the police station from the place of occurrence was being 6 Kms.

This is well settled law that the first information report of a criminal case is not an encyclopedia but no doubt the first information report is the back bone of the criminal case.

Counsel for the appellant has submitted that there is an inordinate delay in lodging the first information report but no explanation is coming forth from the side of the prosecution about the delay in lodging the first information report.

In 2003 Cr.L.J. 1282, Amar Singh Vs. Balwinder Singh and others, the Hon'ble Apex Court has laid down in regard to the delay in lodging of F.I.R. that many circumstances have to be seen. There is no hard and fast rule that any delay in lodging the F.I.R. would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the F.I.R. which may cast doubt about the veracity of the prosecution case and for this, a host of circumstances like the condition of the informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging the F.I.R.

The Hon'ble Apex Court in Tara Singh and others Vs. State of Punjab, AIR 1991 Supreme Court 63, has held that "the delay in giving the F.I.R. by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin, who have witnessed the occurrence cannot be expected to go mechanically with all promptitude in giving report to the police. At times being grief-stricken because of the calamity, it may not immediately occur to them that they should give a report. After all, it is but natural, in these circumstances for them, to take sometime to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons, the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate the grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the F.I.R. also will have to be scrutinized carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the F.I.R. and later substantiated by the evidence, merely on the ground of delay. These are all matters of appreciation and much depends on the facts and circumstances of each case.

As far as the explanation about the delay in lodging the first information report is concerned, there is an averment in the written report that the informant was busy in tracing out his daughter, hence, when he did not succeed, he lodged the first information report. It has to be now seen as to what was said in the oral evidence about this fact by PW-1. PW-1 Maan Singh is informant whose young daughter was missing from the house. He has not said any thing as to why report was lodged after five days. He has only said that when his daughter did not return for four-five days, he came to know that the accused person had enticed his daughter away. This Court does not loose sight of the fact that in such cases when the reputation of the family is at stake, the parents are hesitant to lodge the report but in this particular case besides the girl, jewellery and cash from the house of the informant was also missing, hence, there was no reason why the informant could not have lodged the missing report and also a report about theft of the jewellery and cash from his house. In this regard, PW-3 sister of the victim has stated that she had told her father that the accused Arvind was talking to the victim on the day since when she was missing and this fact was told to the informant before the report was lodged. the mother of the victim PW-4 Sushila has also stated that when her husband went to the police station for lodging the report, she had told her husband that the appellant had taken the jewellery and cash. Thus, this lapse on the part of the prosecution to explain the delay in lodging the first information report raises doubt on the credibility of the prosecution case and chance of false implication of the appellant increases. Thus, I conclude that there is inordinate delay in lodging the first information report which has not been explained.

(ii) That all the witnesses except formal witnesses produced by the prosecution are interested witnesses, hence, their evidence cannot be relied upon :-

Counsel for the appellant has submitted that PW-1 Maan Singh, the informant, PW-2 Sanju Devi, the victim and daughter of PW-1, PW-3 Rinki, daughter of PW-1 and PW-4 Smt. Sushila Devi, wife of PW-1 meaning thereby that all the informal witnesses are members of the same family. They can also be turned to be related and interested witnesses.

No doubt, it is well settled principle of law that minor contradictions are bound to occur in the testimony of the natural witnesses as has been held in 1993 L.Cr.R. page 379, Badri Narain Singh and others vs. State of U.P. But there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court.

In (2010) 1 SCC page 199, Jayabalan vs. Union Territory of Pondicherry, the Court took the view that "pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim".

The Court should definitely be cautious in appreciating and accepting the evidence given by the related and interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes out from the mouth of a person who is closely related to the victim. Thus, the statement of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution theory. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons who are closely related to the victim.

In the aforesaid back drop, the evidence has to be scrutinized. Admittedly, there no eye witness who had seen Arvind kidnapping the girl. Maan Singh PW-1 has stated that his daughter went to attend the call of nature but did not return back. His daughter took the jewellery and Rs. 4200/- in cash along with her. He has also stated that before the victim left her house to attend the call of nature, he saw Arvind going out of the house of the victim. There are several points which have to be look into in the matter, inasmuch as, whether it was the victim who took the jewellery and cash from her house and whether she was forcibly taken away by the appellant or whether the jewellery and cash was taken by the appellant. In this regard the first information report is not very happily worded, but PW-1 Maan Singh has stated that he saw Arvind living his house, empty handed. Sanju Devi PW-2 who is the victim and star witness of the prosecution has stated that the appellant came to her house, kidnapped her and also took away the jewellery and cash. PW-3 Rinki has stated that the appellant took jewellery and cash in a packet before the victim left her house. The mother of the victim PW-4 Sushila Devi has stated that the jewellery and cash was taken by Arvind in a packet. All these witnesses were put to the test of cross-examination in which Sanju Devi PW-2 practically could not sustain this test, inasmuch as she has stated that he had taken the jewellery and the cash along with her to the "Baara" when she was going to attend the call of nature. She has further stated that two days prior to the incident, every day, she was carrying this bag containing jewellery and cash whenever she was going to attend the call of nature. This is not a plausible explanation. Infact, I would call it mere humorous version and unbelievable statement. PW-3 Rinki has said that the bag was not taken by the victim. The mother of the victim PW-4 Sushila in cross-examination has said that she had seen the accused appellant taking the jewellery and cash in a bag. Thus, even the inmates of the family differ on the point whether the cash and jewellery were taken from the house by the victim or by the accused. Infact, PW-3 Rinki who is the sister of the victim has said that when the victim left her house, she did not take the bag but she was only carrying a "Lota". Statement was given by the victim that when she was going with Arvind, her sister, mother and father were not at home. She was wearing the neckless, bangles, belt and payal. The cash and some other jewellery were in the bag. In the statement under Section 164 Cr.P.C., the victim has stated that on 24.04.1980, the accused came to her house and stole the jewellery. Thus, it is clear that the victim is changing her statements in every breath.

Now, it is to be examined whether the victim went on her sweet will or was forcibly taken away by the appellant.

Since, none had seen the victim going with the appellant, the evidence of PW-2 will have to be very carefully examined to bring out the correct facts in the matter. PW-2 Sanju Devi has said that when she was going to attend the call of nature, the appellant forcibly kidnapped her. She has stated that when she resisted, the appellant raped her on the point of country made pistol. This witness has admitted that on the relevant date the appellant took her to Lahchura Dhasaan River through field which took about two hours to reach there. After that she went to Belataal where they stayed for 4 to 5 days. From there, she went by bus to Bhopal. The bus was filled with passengers but due to fear, she did not say anything to anybody. She has further stated that from Bhopal, they went to Indore where the appellant and the victim stayed for ten days. The appellant was working in Simcona Company. He used to go to work at 08:00 A.M. and returned at about 05:00 P.M. She has stated that during this period, she used to stay in the room. The neighbourers were also residing there. She used to talk to the neighbourers and introduced herself to be the wife of Arvind but she did not disclose that she was kidnapped due to fear. Later on she changed her statement and said that the accused appellant used to lock the room from outside. She also travelled by train having 50 to 60 passengers in the coach but even there she did not raise any alarm. She stayed with the accused for more than a month but during the whole period she did not raise any alarm. Although, she has given a very weak excuse that since the accused was having a country made pistol, she was frightened.

In the statement under Section 164 Cr.P.C., this witness has stated that the appellant threatened to kill her if she would not marry with him in court, at this she signed the agreement for marriage before the Notary. When she was examined before the court, she admitted that the agreement bore her signatures and photograph which was singed under fear of life. Thus, according to the complete evidence adduced on this point, it can very safely be concluded that the victim was not kidnapped. She went on her sweet will and no force was used on her. Thus, the complete evidence adduced on behalf of the prosecution on this point is full of contradictions and is unworthy of credence.

Thus, I conclude that all the witnesses except formal witnesses produced by the prosecution are interested witnesses, hence, their evidence cannot be relied upon.

(iii) The victim was a consenting party and she was major, hence the conviction is bad in the eyes of law :-

As far as the age of the prosecutrix is concerned, according to the first information report, she was 15 years at the time of occurrence when she was examined in court in 2011. She stated her age to be 19 years, in the statement recorded under Section 164 Cr.P.C., she stated her age to be 18 years on 21.05.2008. Although, the I.O. has proved the age certificate of the victim but it does not inspire confidence because mere filing of a document cannot take the place of proof besides the prosecutrix was medically examined. Her pathological age as opined by the doctor is not on record. Dr. Rashmi Sharma, PW-6 has also specifically stated that since the supplementary report was not produced before her, hence, she could not mention the age of the victim.

Withholding of the supplementary report by the prosecution is speaking volumes, inasmuch as it is admitted case of the prosecution that about a month after the incident the victim was married somewhere else. The medical report also reveals that she did not have any mark of injury and infact some spermatozoa were found in her vaginal smear as per Exhibit Ka-10.

Thus, it is clear that the victim was of an understandable age and she can be presumed to be a major girl and was a consenting party to have gone with the accused who had physical relations with the victim.

The defence has adduced negative evidence which is of no value. Hence, the evidence of DW-1 need not to be discussed.

Thus, I conclude that the victim was consenting party and she was major, hence the conviction is bad in the eyes of law.

10. On the basis of discussions made above the appeal deserves to be allowed.

11. Accordingly the appeal is allowed.

12. The conviction of the appellant Arvind is hereby set aside. He is acquitted for the offences punishable under Sections 363, 366, 368, 376, 380 and 506 I.P.C., Police Station Mahoba Kanth, District Mahoba.

13. The appellant is in jail. His bail bonds are cancelled. His sureties are discharged. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied forthwith.

14. Office is directed to communicate this order forthwith to the court concerned.

Order Date :- 02.11.2015

sailesh