Pappu vs State Of U.P.
2016 Latest Caselaw 3972 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- JAIL APPEAL No. - 5049 of 2012
 
Appellant :- Pappu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

1. This Jail Appeal on behalf of appellant Pappu is directed against the judgment and order dated 17.8.2012 passed by Additional Sessions Judge/Special Judge (E.C.Act), Agra in Session Trial No. 106 of 2010 (State versus Pappu) arising out of Case crime no. 590 of 2010, Police Station Jagdishpura, District Agra, whereby appellant was convicted under sections 376, 511 Indian Penal Code (in short, IPC) and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 20,000/- with default stipulation.

2. Prosecution case, in brief, is that on 21.10.2010, complainant Mukesh Chandra (PW-1) son of Suresh Chandra lodged a First Information Report (in short, FIR) alleging that on 21.10.2010 he was informed by one Smt. Ansuiya Devi (PW-5) that his 8 years old daughter had been abducted by appellant. Neighbour, namely, Sheila, Smt. Ansuiya Devi (PW-5), Smt. Pushpa etc. searched the girl and suddenly found her in a vacant plot of land nearby Ankush Dairy. Appellant was standing there with his trousers fly open. Minor daughter of informant was also present and her lower garment (Salwar) had been pull down. Appellant was caught on the spot. The wife of informant Smt. Radha (PW-3) telephoned her husband. Appellant was questioned, he gave his name and address, thereafter, he was taken to the Police Station Jagdishpura and a report (Ex Ka-1) was lodged at 2:00pm on the same day. The matter was investigated and a charge sheet (Ex Ka-6) under section 376 read with Section 511 IPC was submitted against the appellant.

3. Trial judge framed formal charges against the appellant/accused Pappu under section 376 read with Section 511 IPC, which was denied by accused-appellant. Accused claimed trial. During the course of trial, the testimonies of PW-1 Mukesh Chandra (father of the victim), PW-2 Mukesh Kumar son of Vishambhar Dayal (brother-in-law of PW-1 Mukesh Chandra), PW-3 Smt. Radha (mother of victim), PW-4 Victim, PW-5 Anusuiya Devi (eyewitness), PW-6 Constable Bhem Sen and PW-7 S.I. Amit Kumar, Investigating Officer (in short, I.O.) were recorded. Appellant was also given opportunity to produce evidence in defence but he did not avail this opportunity. On conclusion of the trial, learned Additional Sessions Judge found the appellant Pappu guilty under sections 376/ 511 IPC and was sentenced to rigorous imprisonment for five years and a fine of Rs. 20,000/- with default stipulation vide judgment and order dated 17.8.2012. This judgment is under challenge in this jail appeal.

4. Heard Sri Amit Dagga. Amicus Curiae on behalf of appellant Pappu and Sri B.D.Nishad, learned Additional Government Advocate (in short, AGA) for the State.

5. Learned Amicus Curiae has submitted that prosecution version is completely improbable and testimonies of victim as well as eyewitness account of Smt. Ansuiya Devi are highly inconsistent with the normal human conduct and basic prosecution story. He would argue that there is no medical evidence of alleged sexual assault on 8 years old victim; that the timing of the FIR is uncertain; that place of occurrence is doubtful; and veracity and credibility of witnesses are under cloud.

6. Per contra, learned AGA has submitted that testimony of minor victim cannot be ignored. The victim has given trustworthy statement in support of her claim. Her testimony has also been supported by evidence of PW-5 Ansuiya Devi. Prosecution evidence cumulatively has established the guilt of the appellant.

7. Perusal of prosecution evidence would indicate that first three stated eyewitnesses were, in fact, not present at the time of occurrence. PW-1 Mukesh Chandra has conceded this fact in the FIR itself. Similarly, both PW-2 Mukesh Chandra son of Vishambhar Dayal and PW-3 Radha mother of the victim have also admitted that they had not witnessed the incident. Their testimonies have shown some discrepancies. The FIR says that incident occurred near Ankush Dairy and this incident was witnessed by PW-5 Ansuiya Devi, Sheila and Smt. Pushpa etc. The FIR further says that when this information was communicated to father of victim PW-1 Mukesh Chandra, he arrived at the spot and questioned accused-appellant who gave his name and address and thereafter, appellant was taken to the Police Station and a report was lodged by PW-1 Mukesh Chandra which was reduced to writing by PW-2 Mukesh Kumar son of Vishambhar Dayal. This story is very simple but testimonies of PW-1 Mukesh Chandra and PW-2 Mukesh Kumar son of Vishambhar Dayal (scribe) have complicated the story. PW-1 Mukesh Chandra has stated that he had gone to work as a labourer (Beldar) and that he was informed by PW-5 Anshiya Devi and one Sheila that his daughter had been raped. According to him, this information was communicated to him at 12:30pm. He rushed towards Ankush Dairy and found appellant Pappu with Ansuiya Devi, Sheila and Smt. Pushpa etc. and they narrated the story of sexual assault by appellant on his minor daughter.

8. PW-1 Mukesh Chandra says that he dictated the FIR to PW-2 Mukesh Kumar son of Vishambhar Dayal and after scribing this report, he went to the Police Station. This FIR is available on record as Ex Ka-1. Up to this point, story of Mukesh Chandra was reasonable and consistent with the contents of FIR. But, his utterances during the course of cross-examination have created doubt regarding his credibility. In the cross-examination he stated that on the date of incident, he was working at Sikandara as a labourer and it takes about an hour to travel to Sikandara from his residence. Now, initially, he said that information regarding incident was communicated to him by PW-5 Ansuiya Devi but next time he gave new version in which he said that information regarding incident was given to him by one unknown boy. He said that this information was given at 12:00(noon). If this statement is taken into consideration, it would mean that incident occurred prior to 11:00am. The boy would have taken at least one hour to reach Sikandara. After receipt of this information from unknown boy, the informant went back to his house. No one was present at his residence. He was informed that concerned persons had gone to the Police Station. Informant Mukesh Chandra also went to Police Station Jagdishpura, where report was lodged. It is stated that he took half an hour to reach Police Station Jagdishpura from factory. He found several persons including his wife PW-3 Radha, victim (PW-4), Ansuiya Devi (PW-5), and his brother-in-law Mukesh Kumar son of Vishambhar Dayal (PW-2) already present at the Police Station.

9. If this version given by PW-1 Mukesh Chandra is correct, then he would take one hour to travel back to the place of occurrence by cycle and further half an hour to reach police station. It is also apparent that he must have taken some time at Sikandara to grasp the information. It was also natural to make inquiry at the place of occurrence. In such a situation, he would have barely reached the police station before 2:00pm. He then must have gathered the information from victim etc. Thereafter he dictated FIR to PW-2 Mukesh Kumar. It was virtually impossible to lodge FIR at 2:00pm as Chik report indicates. This story itself is contradictory to the prosecution case.

10. Prosecution story says that first PW-1 Mukesh Chandra came to place of incident where he questioned accused-appellant and then all of them left together for the Police Station. During cross-examination, he failed to mention the meeting with accused-appellant at the place of occurrence before reaching Police Station. In fact, this time he says that nobody was present at the residence or place of occurrence. Another interesting averment has been made by PW-1 Mukesh Chandra that says that FIR was dictated by PW-1 Mukesh Chandra to PW-2 Mukesh Kumar son of Vishambhar Dayal at the place of occurrence and thereafter all the prosecution witnesses left together for Police Station. In cross-examination informant said that contents of FIR was dictated by Police personnel.

11. If the FIR had been carved out at the place of occurrence itself, then story of dictation by Police personnel would create discrepancy which has to be explained by prosecution. This discrepancy has not been explained by prosecution. Not only this, the version given by PW-2 Mukesh Kumar, scribe (brother-in-law) of Mukesh Chandra (PW-1) has further created complication. PW-2 Mukesh Kumar son of Vishambhar Dayal first says in examination-in-chief that PW-1 Mukesh Chandra dictated the FIR and thereafter, he went to the Police Station alone and PW-1 Mukesh Kumar, PW-3 Radha, PW-4 victim and other were found at the Police Station. In his cross-examination, he completely gave new story saying that FIR was dictated by PW-1 Mukesh Chandra at the Police Station at 12:00pm but he again says that as he scribed the report as per wishes of the Sub-Inspector of Police. He clearly stated that he was not aware of truthfulness of the story. He wrote whatever was dictated by Sub-Inspector. But his version has created another complication. If PW-1 Mukesh Chandra was present at the Police Station at 12:00 (noon) as stated by PW-2 Mukesh Kumar son of Vishambhar Dayal, then story given by PW-1 Mukesh Chandra that he received information at Sikandara at 12:30pm and thereafter he came to residence after receiving this information. He travelled one hour to come back to the place of occurrence and then left for Police Station Jagdishpura, meaning thereby FIR could not have been lodged before 2:00pm. Official document and Chik report indicate that report indeed was recorded at 2:00pm. Story of PW-2 Mukesh Kumar son of Vishambhar Dayal is inconsistent with the story given by Mukesh Chandra (PW-1) and contents of FIR. The question is where was this FIR written ? If this FIR was dictated at the place of occurrence by Mukesh Chandra (PW-1) then story of PW-2 Mukesh Kumar son of Vishambhar Dayal, that FIR was dictated by police personnel at Police Station Jagdishpura would become false. The genesis and timing of the FIR is shrouded into mystery. Discrepancies do not stop here. PW-6 Constable clerk Bhim Sain who, in fact, recorded the FIR says that FIR was lodged at 12:30pm and this FIR was given by PW-1 Mukesh Chandra son of Suresh Chandra. He further says that case was registered at 12:30pm. If the story of PW-1 Mukesh Chandra is correct that he had received information about the incident at Sikandara, at a distance of almost one hour from the place of occurrence at 12:30pm then version of PW-6 that report was lodged at the Police Station Jagdishpura at 12:30pm is clearly false. Incidentally chik report says that report was lodged at 2:00pm.

12. The testimony of PW-3 Smt. Radha says that at the time of occurrence, she was not present at her residence and entire story was communicated to her by PW-5 Smt. Ansuiya Devi when Smt. Radha came to her residence at 2:00pm. She says that she came back at 2:00pm and at that time Smt. Ansuiya Devi communicated the entire story to her. She further says that appellant Pappu was present at the place of occurrence and some persons had apprehended him. She further says that she rang up her husband. Her husband came and they went to Police Station for lodging the FIR. If Smt. Radha came to know about the incident at 2:00pm and this information was given to Mukesh Chandra (PW-1) on telephone, it would mean that her husband returned back after 3:00pm inasmuch as he has already admitted that he was at Sikandara and used to take one hour for traversing the distance between Sikandara and place of his dwelling, thereafter, they together went to Police Station. Travel from place of occurrence to police station Jagdishpura would have taken at least ½ hour as disclosed by witnesses, meaning thereby that FIR must have been recorded after 3:30pm but chik report says that FIR had already been registered at 2:00pm whereas PW-6 Constable clerk Bhim Sain says that FIR was lodged at 12:30pm. If the testimony of PW-3 Radha is believed, then it would mean that FIR was lodged prior to receipt of any information by PW-1 Mukesh Chandra.

13. PW-3 Radha, mother of victim, in cross-examination has further complicated the prosecution case by giving various versions. At one place, she has stated that information was given to her by PW-5 Smt. Ansuiya Devi at about 12:00pm. She specifically asserted that her husband came to Police Station on bicycle and remaining persons came to the Police Station on tempo. There are very significant and vast discrepancies in the testimony of PW-1 Mukesh Chandra son of Suresh Chandra, PW-2 Mukesh Kumar son of Vishambhar Dayal and PW-3 Radha. These discrepancies are significant and fatal to the prosecution story. But this is also true that none of them were present at the time incident. To that extent, the testimony of PW-3 victim and PW-5 Ansuiya Devi would be much more important.

14. The victim was 8 years old minor girl at the time of incident. She has stated that appellant had promised to give her Rs. 5/- and thereafter, he took her to a vacant house near Ankush Dairy and in this house, he disrobed himself as well as pulled down the Salwar of the victim. She claimed that she tried to raise alarm but appellant forcibly closed her mouth yet people nearby arrived in the house. Her parents also came there. Neighbour and parents took appellant Pappu to the Police Station. This witness could not give time, date and month of incident. Existence of vacant house is completely new addition. No witness has talked of house. She claims that her parents had also arrived at the place of occurrence which of course PW-1 Mukesh Chandra denied and PW-3 Radha also claims that she came at the place of occurrence at 2:00pm while report had already been lodged at 2:00pm as per Chik report (Ex Ka-2). though PW-6 Constable Bhim Sen categorically stated that report was lodged at about 12:30pm. Either report was lodged at a different time or parents and witnesses were not present on the place of occurrence. In any case, both PW-1 Mukesh Chandra and PW-3 Radha have given contrary statement regarding their presence on the spot in aftermath of the incident. PW-1 Mukesh Chandra has given as many as 3-4 versions. The victim has admitted that she was not medically examined. The story given by victim is highly improbable especially in the light of vital discrepancies available in the testimonies of PW-1 Mukesh Chandra and PW-2 Mukesh Kumar son of Vishambhar Dayal and PW-3 Radha.

15. PW-5 Smt. Ansuiya Devi, in fact, is star witness of the prosecution. She has stated that it was she who had witnessed appellant without his trousers and that PW-4 victim was also present there and she was not wearing Salwar. She claimed to have raised alarm. Several persons arrived there. She claimed that appellant was raping the victim. Now another discrepancy surfaces because of testimony of PW-5 Ansuiya Devi. She says that mother of the victim was present. Mother of the victim Radha has said that she was not present and arrived at the place of occurrence at 2:00pm FIR discloses that information was given by Ansuiya Devi directly to Mukesh Chandra, father of victim. Ansuiya Devi declines it. She says that information was communicated to PW-1 Mukesh Chandra by Radha and not by her (Ansuiya Devi). Radha says that she arrived at the place of occurrence at 2:00pm. The information was given to Mukesh Chandra at about 2:00pm. Admittedly, he must have come after an hour at the place of occurrence from Sikandara. Mukesh Chandra (PW-1) did not find any person at his house and he left for Police Station Jagdishpura. It has come in the evidence at one place that travelling to Police Station Jagdishpura takes about half an hour. Therefore, PW-1 Mukesh Chandra could not arrived at Police Station before 3:30pm but PW-6 Bhim Sen says that FIR was lodged at 12:30pm and Chik report indicate that report was recorded at 2:00pm. The FIR was allegedly lodged by Mukesh Chandra and yet Mukesh Chandra was not aware of the incident at least till 2:00pm. These are fatal contradictions and discrepancies in the prosecution story.

16. PW-5 Ansuiya Devi says that nobody called PW-3 Radha. She came of her own and thereafter telephoned her husband PW-1 Mukesh Chandra. A new and very significant twist has been given to the prosecution story by PW-5 Ansuiya Devi. She says that police arrived at the place of occurrence prior to arrival of Mukesh Chandra (PW-1) and infact, PW-1 Mukesh Chandra had arrived at the place of occurrence at the time when police was taking away the accused-appellant Pappu to the Police Station, meaning thereby, appellant Pappu had been arrested by the Police from the place of occurrence prior to the arrival of PW-1 Mukesh Chandra but this fact has not been mentioned in the prosecution story at all. This witness says that police had taken accused-appellant Pappu to the Police Station in their vehicle while others went to the Police Station in a tempo. This is contrary to the story given by other witnesses that PW-1 came to the Police Station on cycle.

17. PW-5 Ansuiya Devi has reiterated that Police had arrived at the place of occurrence within half an hour. PW-3 Radha, PW-5 Ansuiya Devi and PW.1 Mukesh Kumar son of Vishambhar Dayal have claimed that their statements were not recorded by the I.O. while PW-7 I.O. says that 6-7 statements were recorded by him on the same day while report was lodged at 2:00pm. He could not explain the discrepancy created by PW-6 Bhim Sen which indicated that the FIR was lodged at about 12:30pm.

18. Learned counsel for the appellant has drawn attention of this Court towards the statement of PW-5 Ansuiya Devi where she says that victim did not raise any alarm. Even the place of occurrence is uncertain. Several witnesses have stated that incident took place on a vacant plot near Ankush Dairy while victim (PW-4) says that she was taken to an abandoned house behind Ankush Dairy. Learned counsel for the appellant rightfully questioned this aspect of the prosecution story. He says that if incident occurred in a vacant house, then there was no occasion for PW-5 Ansuiya Devi to witness the incident from outside. If incident occurred on a vacant plot, as stated by several witnesses, then it is highly improbable conduct on the part of accused. The incident occurred during the day time prior to 12:00 (noon) and yet victim did not try to conceal himself. He openly dis-robbed himself and victim on an open plot of land despite existence of a dairy nearby. He has also drawn attention of this Court towards site plan Ex Ka-5 which indicates that place of occurrence was surrounded by residential houses and showrooms etc. Admittedly, a dairy was nearby. In such a scenario to commit offence of this nature which could easily be witnessed by anyone, is highly improbable. This argument of learned counsel for the appellant can not be ignored.

19. I have carefully perused the prosecution evidence in detail. The victim's and eyewitness account when compared with version given during investigation, certain irregularities and discrepancies are apparent in the evidence. The prosecution story has been demolished by its own witnesses. There is no material to demonstrate that appellant was arrested on the spot in manner disclosed by PW-5 Ansuiya Devi. At least three witnesses namely, PW-1 Mukesh Chandra, PW-2 Mukesh Kumar son of Vishambhar Dayal and PW-3 Radha have specifically conceded that they did not witness the incident. Testimonies of victim and PW-5 Ansuiya Devi are highly improbable and untrustworthy. Their evidence is contrary not only to the testimonies of other witnesses but also in conflict with original prosecution story.

20. Learned AGA has submitted that appellant can be convicted on sole testimony of victim. It is true that evidence is weighed and not counted. Testimony of a single witness if found credible, can lead to conviction of a person. But in the instant case, the testimony of victim and eyewitness are highly inconsistent with the prosecution story and other witnesses. There is no medical evidence that the rape had been committed. If the evidence of victim is not wholly trustworthy, then courts can search for trustworthy corroboration. In the instant case, as many as five witnesses have been produced but not a single witness is trustworthy. In fact, even the formal witnesses are full of contradiction and discrepancies. These discrepancies have not been explained at all. In fact, no attempt has been made by prosecution to explain these discrepancies.

21. In view of the aforesaid discussion, this criminal appeal is allowed. The judgment and order dated 17.8.2012 passed by Additional Sessions Judge/Special Judge (E.C.Act), Agra in Session Trial No. 106 of 2010 (State versus Pappu) under sections 376 and 511 IPC, arising out of Case crime no. 590 of 2010, Police Station Jagdishpura, District Agra is set aside. Appellant, if still in jail, be released forthwith.

22. Let a copy of this order be sent to the court concerned through the Sessions Judge, Agra within two weeks for compliance.

Order Date :-    8.7.2016
 
SU.