Nirmal vs State Of U.P.
2016 Latest Caselaw 6451 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 1219 of 2014
 

 
Appellant :- Nirmal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sushil Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgement and order dated 8.7.2014 passed by Additional Sessions Judge, Court No. 2, Sitapur in S.T. No. 16 of 2012 (State Vs. Nirmal) arising out of Crime No. 55 of 2011, under Section 363, 366, 367 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station-Khairabad, District-Sitapur, whereby the accused-appellant was found guilty and sentenced to 4 years' rigorous imprisonment and Rs. 3,000/- fine under Section 363 I.P.C., 5 years' rigorous imprisonment and Rs. 3,000/- fine under Section 366 I.P.C., 10 years' rigorous imprisonment and Rs. 5,000/- fine under Section 376 I.P.C. and 10 years' rigorous imprisonment and Rs. 5,000/- fine under Section 3(2)(v) SC/ST Act with default stipulation.

2. Brief facts as per prosecution evidence and the F.I.R. is that a report was lodged by the informant Tokhan Das on 13.2.2011 stating that his daughter aged about 16 years had gone to her school on 29.11.2010. When she was taken away by the accused. The informant tried to search his daughter, but she could not be searched, hence report was lodged.

3. On the basis of this F.I.R., chik report was scribed by Constable Suresh Pal, P.W. 5, who proved the chik report as Exhibit Ka-6. Details of the case were entered in the case diary by this witness, who proved the copy of the G.D. as Exhibit Ka-7.

4. The victim was medically examined by P.W. 4 Dr. Sushma Karanwal, who did not find any external or internal marks of the injury on the body of the victim. Hymen was old, torn and healed. The victim was sent for determination of age. This witness further proved the medical report as Exhibit Ka-2 and the radiological report as Exhibit Ka-3 and the pathological report as Exhibit Ka-4.

5. Investigation was conducted by P.W. 6 C.O. Vidya Sagar Mishra after the transfer of the investigating officer, C.O. Hafizul Rahman. On 7.4.2011, he perused the previous case diary and the statement of the victim recorded under Section 164 Cr.P.C. On 14.4.2011, the statement of Constable Manoj Kumar and Constable Netram was recorded. Later on statements of the mother of the victim and other witnesses were recorded. The date of birth of the victim as per her high school mark-sheet was recorded to be 8.4.1994. The investigation ended into a charge-sheet, which was proved by this witness as Exhibit Ka-8.

6. P.W. 7 Hafizul Rahman, who carried out the initial investigation during the course of investigation, copied the chik report in the case-diary. He recorded the statement of the informant and inspected the spot on his pointing out. He further recorded the statement of the accused, copied the medical report of the victim in the C.D. on 16.3.2011. The statement of the victim was recorded under Section 164 Cr.P.C. After that this witness was transferred. He proved the site plan as Exhibit Ka-9 and added Section 376 I.P.C. in the matter.

7. Besides the aforesaid witnesses, the prosecution also examined Tokhan Das, P.W. 1, who proved the first information report as Exhibit Ka-1. P.W. 2 Savitri, mother of the victim. P.W. 3 the victim. After examining 7 witnesses, the prosecution closed its evidence.

8. After the prosecution evidence was closed, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence and stated that he had been falsely implicated in this case due to enmity, political rivalry and village party-bandi. But the accused persons did not adduce any evidence in his defence.

9. After hearing counsel for the parties, learned lower court found the accused-appellant guilty and sentenced him as has been specified in Para 1 of the judgement.

10. Feeling aggrieved, the accused-appellant has come in appeal.

11. I have heard Shri Sushil Pandey, learned counsel for the appellant, Shri Balkeshwar Srivastava, learned A.G.A. for the State and perused the trial court record.

12. Learned counsel for the appellant has submitted that there is inordinate delay in lodging the F.I.R. The testimony of the prosecutrix is unworthy of credit. Her statement is unreliable. No case under Section 3(2)(v) S/ST Act is made out. Learned lower court has illegally convicted the appellant, due to which the appeal is liable to be allowed.

13. Per contra, learned A.G.A. has submitted that the delay in such cases would be of no consequence. The trial court has convicted the appellant on the basis of relevant evidence and the appeal merits rejection.

14. As far as delay in lodging the F.I.R. is concerned, perusal of the chik report Exhibit Ka-6 makes it clear that the occurrence is said to have taken place on 29.10.2010, whereas report of the occurrence was lodged on 13.2.2011 at 1705 hrs. The police station being 1 km. away from the place of the occurrence.

15. As far as explanation for the delay is concerned, the informant has stated that he tried his level best to search his daughter, but he could not trace her. Hence, he lodged the report. I am aware that there are cases, where the parents are hesitant to disclose the true facts but, the delay has to be considered in the background of the facts and circumstances of each case and is a matter of appreciation of evidence by the Court.

16. In (2013) 3 SCC Page 791 Rajesh Patel Vs. State of Jharkhand, it has been held that :

"Inordinate delay of 11 days in lodging the F.I.R. against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the F.I.R. not only makes the prosecution case improbable to accept, but makes whole case untenable, which cannot be accepted."

17. In (2015) 7 SCC page 272 Mohd. Ali @ Guddu Vs. State of U.P. the Hon'ble Apex Court has held as follows :-

"It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu."

18. As is evident from the record, the girl was missing from the house since 29.11.2010, but her father lodged the F.I.R. on 13.2.2011 almost after an expiry of about two and a half months alleging that the victim was kidnapped by the accused-appellant Nirmal. In such circumstance, if nothing else, P.W. 1 father, who is expected to have necessitous concerned, would have immediately gone to the police station to lodge a missing report, which could have prompted the investigating officer to act. It baffles the commonsense that the father after searching in the neighbourhood as well as amongst the relatives still, for some unfathomable reason that defeats the basic human prudence approached the police station quite belatedly.

19. As far as the evidence of the informant in this regard is concerned he has stated that when the girl did not return home on that date he started searching her and it was only after three months that he came to know that Nirmal had taken away the girl. This is not supported by the written report, which was lodged against Nirmal on 13.2.2011, meaning thereby that the statement of this witness is incorrect that he came to know only after three months that Nirmal had taken away the girl. Only then the report was lodged. Thus, there is inordinate delay in lodging the F.I.R., which is fatal for the prosecution case.

20. As far as the age of the victim is concerned, as per radiological report Exhibit Ka-3, radiological age of the victim was about 18 years. Although, the I.O. has stated that during the investigation he found the date of birth of the victim to be 8.4.1994. On the basis of which, on the date of occurrence, she was below 18 years, but admittedly as per F.I.R. the age of the victim was 16 years. The age of the consent on the relevant date was 16 years. The statement of the victim was recorded as P.W. 3 on 23.2.2013, in which she stated her age to be 18 years, thus the collective consideration of all the material on record shows that the victim was above 16 years at the time of occurrence.

21. As far as the credibility of the prosecution witnesses is concerned in (2006) 10 SCC Page 92 Sadashiv Ramrao Hadbe Vs. State of Maharashtra and another in which it has been held that :-

"In the present case there were so many persons in the clinic and it is highly improbable the appellant would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbablise the prosecution version."

22. False implication of the accused persons in cases of rape are not uncommon these days. In this context P.W. 1 informant has stated that he did not see the accused taking away the girl. Nor his daughter was recovered in his presence. P.W. 2 the mother of the victim has also stated that she did not see anybody taking away the girl. The statement of the victim is very significant inasmuch she has stated that on 29.10.2010, when she was returning home from school she met the accused, who forced her to sit on his motorcycle and took her to his house. When she resisted he threatened to kill her. After that he took her by bus to Lucknow. She was kept at a brick kiln at Lucknow near the bus stand, where she was raped forcibly by the accused. She was kept at the brick kiln for three and a half months. From there she was brought by bus to Sitapur. On the way back, she was apprehended by the police alongwith the accused. She has admitted her age to be 16 years at the time of incident. This witness was subjected to the test of cross-examination, which she could not sustain.

23. Although, the statement under Section 164 Cr.P.C. this witness was not proved by the prosecution, but she admitted before the court that she consented and the accused made physical relations with her consent. She also admitted that she had stated before the Magistrate that the accused was her husband. She also admitted in her statement recorded under Section 164 Cr.P.C. to be her statement signed by. She further stated that when the accused forced her to sit on motorcycle, she raised alarm but nobody came, but she did not raise alarm when she was going by bus to Lucknow. She has also stated that she stayed at the railway station for 8 days. She saw the police and public at the railway station, she raised alarm but the police did not pay heed. She also raised alarm at the bus stand, but nobody paid attention. The victim has also stated that she raised alarm during her three and a half months stay at the brick kiln, but nobody came to save her. She stated that Nirmal was not armed with any weapon. She also stated that she stayed at a Hotel in Kesarbagh for 8 days, but nobody came to her room. She admitted that at the brick kiln she was kept under thatch, some other people were living in thatch. Only men were living there. The thatch was open for all sides. She tried to flee away, but she was threatened by the accused, due to which she could not flee away. This explanation offered by the victim is not palatable and digestible. Hence she can be termed to be a total unreliable witness.

24. The statement of the victim under Section 164 Cr.P.C. is totally against the prosecution case in which she stated that she went with her own accord with the accused and she had sex with the accused and the accused had sex with her with her consent. Thus, the statement of this witness coupled with the statement of P.W. 1 and P.W. 2 cannot be made the basis of conviction at all. Hence, no case under Section 363, 366 and 367 is made out as per prosecution case.

25. As far as conviction under Section 3(2)(v) SC/ST Act is concerned 3(2)(v) SC/ST Act reads as follows :-

"3(2)(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."

26. At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the Preamble to the Act provides 'the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. Thus sine qua non for application of Section 3(2)(v) SC/ST is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) SC/ST Act has no application.

The aforesaid principle of law has been laid down in (2006) 3SCC Page 771 Dinesh alias Buddha v. State of Rajasthan.

Hence, the conviction under Section 3(2)(v)SC/ST Act is also bad in the eyes of law.

27. Thus, on the basis of what has been stated and discussed above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged and the accused is entitled to be acquitted consequently the appeal is liable to be allowed. The impugned conviction and sentence dated 8.7.2014 passed by Additional Sessions Judge, Court No. 2, Sitapur in S.T. No. 16 of 2012 (State Vs. Nirmal) arising out of Crime No. 55 of 2011, under Section 363, 366, 367 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station-Khairabad, District-Sitapur is hereby set aside.

28. Accordingly, the appeal is allowed. The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

29. Let a copy of this order be sent to the trial court concerned.

Order Date :- 6.10.2016

Anurag/-