Shishupal Alias Fatfata vs State Of U.P.
2016 Latest Caselaw 6531 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 08.09.2016.
 
Delivered on 18.10.2016.
 

 
A.F.R.
 

 

 
Case :- CRIMINAL APPEAL No. - 3002 of 2015
 

 
Appellant :- Shishupal Alias Fatfata
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Bratendra Singh,Ashutosh Pratap Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Pratyush Kumar,J.

The instant criminal appeal, filed on behalf of the appellant, is directed against the judgment and orders dated 09.06.2015 passed by Sri Lal Chandra, IIIrd Special Judge (D.A.A.)/Additional Sessions Judge, Mainpuri, in Sessions Trial No. 32 of 2011 [State Vs. Shishupal and others], whereby the appellant has been convicted under Section 376 IPC and sentenced to undergo seven years rigorous imprisonment with a fine of Rs.10,000/- and in default thereof six months' additional imprisonment.

The facts giving rise to the present appeal may be summarized as under:

That on 21.01.2011 at 9.15 AM Sone Lal gave a written report at P.S. Kishni, District Mainpuri, stating therein that on the previous night he along with his wife Nekasi and grand-daughter the victim were sleeping at about 12.30 hours in the night Shishupal @ Fatfata along with his associates came there and took, four goats, one ram, one she buffalo, one buffalo and Rs.20,000/- cash and also committed rape with his grand-daughter, his wife Nekasi was hit by something on her forehead, he was beaten by leg and fists.

At this check FIR was scribed, case crime no.46 of 2011, under sections 394, 396 IPC was registered, investigation was taken over by Station Officer Sri Braham Singh, who started investigation on the same, took into possession the clothes of the victim, reached the spot, inspected it, recorded the statement of the first informant, on the next day he besides other witnesses recorded the statement of the victim, obtained medical reports, arrested the accused and submitted the charge-sheet against the name accused Shishupal @ Fatfata and two others.

All the three accused stood for trial before the Court of Session, where they were charged under sections 394, 376 IPC, on their denial, they were tried, appellant (Shishupal @ Fatfata) was convicted, co-accused Rakesh and Ram Raj were acquitted.

Heard Sri Sandeep Kumar Srivastava, Advocate, holding brief of Sri Bratendra Singh, learned counsel for the appellant, Sri V.P. Singh Kashyap, learned Additional Government Advocate, appearing for the State-respondent and perused the record.

Learned counsel for the appellant in support of the appeal submits that the impugned judgment is against the evidence on record, appellant has been acquitted on the charge under section 394 IPC and on the same evidence he was convicted under section 376 IPC. The first informant and the victim had not identified the appellant as rapist. There was no source of light at the time of occurrence, only the victim in her statement recorded under section 164 Cr.P.C. has named the appellant as rapist but in the statement on oath she has not named the appellant, the learned trial Judge has committed legal error in relying on earlier statement, thereby erroneously recording finding of guilt against the present appellant. The impugned judgment is full of legal infirmities.

On behalf of the State-respondent these arguments have been repelled and it has been submitted that the findings recorded by the learned trial Judge are well substantiated from the record. No illegality or infirmities have been committed by the trial court in recording the finding of guilt against the appellants. The appeal deserves to be dismissed.

Before I propose to deal with the arguments submitted by the respective parties, I would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. In this regard, I would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

As an Appellate Court it is my duty to re-examine and re-appreciate the evidence adduced by the prosecution in the light of the submissions made hereinabove.

Summary of the statements of the prosecution witnesses is as under:

Sone Lal P.W.1

P.W.1 is the grand-father of the victim, he has lodged the first information report, he has reiterated the facts regarding the occurrence. According to him, his eye sight is weak, he was beaten by the miscreants, his cattle was taken away by the miscreants, he does not know whether his grand-daughter was raped or not but stated that 3-4 persons came and took her, he does not know what was written in the first information report. In the cross-examination he has admitted that his wife Nekasi sustained injury on her forehead but his grand-daughter did not tell anything to him. He declined a suggestion that after taking money from the accused side he was not supporting the prosecution version. He refused to admit or deny whether rape was committed with his grand-daughter or not.

P.W.2 Phoolan Devi

P.W.2 victim was administered oath after ensuring her understanding, she has narrated the occurrence as mentioned in the first information report but refused to identify the appellant as rapist on the ground that it was dark in the night.

Dr. R.D. Yadav P.W.3

P.W.3 is the pathologist, who had examined the slide of vaginal smear, he has proved the report Ext. Ka-1, according to him, no spermatozoa was found.

Dr. Ninni Begum P.W.4

P.W.4 is the Medical Officer, who on 22.01.2011 at 2.30 PM medically examined the victim, according to her, secondary sexual characters of the victim were not developed, there was no external mark of injury on her person. During internal examination, internal mucosa around urethra and vaginal orifice found lacerated, there were two mark of red colour on right side, hymen was torn, on touch it was bleeding. The vagina was admitting one finger with difficulty, she has proved medical examination report Ext. Ka-2 and the supplementary report Ext. Ka-3.

Nekasi Devi P.W.5

P.W.5 is the grand-mother of the victim, she has reiterated the facts mentioned in the first information report but expressed her inability to identify the assailants due to darkness.

Ashok Kumar P.W.6

P.W.6 is the scribe of written report, he has proved the written report Ext. Ka-4 and stated that the cattle of Sone Lal along with Rs.20,000/- were stolen on 21.01.2011. Appellant was one of the thieves, he had committed rape with the victim, this fact was communicated by the first informant to him, he had not seen the occurrence, he had written the report on the dictation of Sone Lal P.W.1.

Inspector Braham Singh P.W.7

P.W.7 is the Investigating Officer, he gave the details of steps taken in the course of investigation and proved site plan Ext. Ka-5, memo of taking possession the clothes of the victim Ext. Ka-6 and charge-sheet Ext. Ka-7.

Head Moharrir Arvind P.W.8

P.W.8 is the scribe of the first information report, he has proved check FIR Ext. Ka-8, copy of the report of the general diary Ext. Ka-9 and denied the suggestion that the report was lodged anti timed.

Dr. Shankar Ghule P.W.9

P.W.9 is the Medical Officer, who on 22.01.2011 had x-rayed the victim, he has proved x-ray report Ext. Ka-10 and x-ray plate material Ext. Kha-1.

The case of the defence before the trial court was of simple denial. The appellant in his statement recorded under section 313 Cr.P.C. has denied the facts stated by the prosecution witnesses. He has pleaded ignorance about the medical evidence. According to him, in his village there was a parti bandi, on the behest of gram pradhan false FIR was lodged against him, there has not taken place any such incident.

The thrust of the arguments advanced on behalf of the appellant is that there is no substantive evidence against the appellant to show that he had committed rape with the victim. This argument was repelled by the trial Judge and I also find unable to accept this argument though my reason is different, in my opinion statement of Ashok Kumar P.W.6 though is based on hearsay but under section 6 of the Evidence Act, it is relevant and being statement on oath it is admissible also, he is the person, who was village pradhan at the relevant time and with whom the appellant had borne enmity, on the basis of parti bandi. His examination-in-chief was recorded on 03.07.2013, he was tendered for cross-examination but on behalf of the defence adjournment application was moved. From the perusal of the order-sheet it transpires that the case was fixed for his cross-examination on 18.07.2013 but on that date lawyers were on strike, it was adjourned for 31.07.2013, on that date too one of the accused Rakesh absented, on 16.08.2013 and 31.08.2013 case was fixed for the same purpose, for his cross-examination eight more dates were fixed, thereafter prosecution was given last opportunity to adduce their evidence. On the next date evidence of Investigating Officer was recorded. On further dates formal evidence was recorded and case was listed for statement under section 313 Cr.P.C.

Now the question arises whether evidence of this witness could be read in evidence or due to non cross-examination his evidence would not be admissible in evidence. Statement of the victim consists of examination-in-chief, cross-examination and re-examination, this is on record that witness was offered a cross-examination but the defence in its wisdom instead of cross-examining him sought adjournment, thereafter cross-examination was not made and case lingered on and ultimately without his cross-examination evidence of prosecution was closed, reason for hurry was, that the appellant was an under trial prisoner.

Now the question arises what to do with his statement. In the case of Dwarkabai Vs. Ukhanda Granpa [AIR 1954 Nagpur 252] the Nagpur High Court has ruled out that the court was not bound to wait indefinitely and waste public time, if the lawyers did not turn up the Court will sit at right time, absence of cross-examination was no ground for rejecting evidence of the witness. In the case of Vijayee Ram Vs. Jai Ram [AIR 1955 HP 57]. The Himachal Pradesh High Court has treated such statement un-controverted and but for any inherent improbability worthy of reliance. In my opinion, the view taken by Nagpur High Court is a correct view. The court has performed its duty by offering the witness for cross-examination, if by moving adjournment application and thereby seeking further time by getting absent, defence omitted to exercise their right, it cannot be made a weapon to demolish the statement of the witness subsequently, when this right too was forfeited by the court suo-moto.

I would like to disagree with the view taken by the Himachal Pradesh High Court and in its place I would like to observe that in absence of cross-examination testimony of such witness be subjected to close scrutiny before it may be relied upon, the court exists for doing justice and not for finding fault with any party before it, therefore, I hold the statement of Ashok Kumar P.W.6 is admissible in evidence, the defence had opportunity to cross examine him, his statement is duly corroborated with the written report Ext. Ka-4. Ext. Ka-4 has been written in his hand writing, it bears his signature. The imputation made by the appellant in his statement recorded under section 313 Cr.P.C. is not substantiated from the version taken up by the defence during cross-examination of the witnesses.

Keeping in view the details of the occurrence communiated by the first informant to him, its close proximity of time, his statement is relevant under section 6 of the Evidence Act and it shows that victim was raped by the appellant and this fact was communicated to village pradhan after the occurrence, the factum of the rape with the victim is established from the medical evidence in the form of statement of Dr. Ninni Begum and medical examination reports Exts. Ka-2 and Ka-3. Victim P.W.2 and her grand-mother Nekasi P.W.5 also reiterated this fact that the victim was raped on the night in question, who is the rapist this fact is disclosed by Ashok Kumar P.W.6 and stands corroborated besides evidence noticed above from the statement of the victim recorded under section 164 Cr.P.C. also.

In this way, hostility of the victim P.W.2, Sone Lal P.W.1 (first informant) and Nekasi P.W.5 cannot be made a ground to doubt the veracity of the prosecution version.

Another ground that incident of robbery has been disbelieved, rape is also a part of the same transaction, how on the basis of same evidence appellant can be convicted for the same incident i.e. rape, answer is evident, theft has no physical corroboration but rape is substantiated from medical evidence, therefore, this ground cannot be sustained.

The third ground is that when the first informant P.W.1 and victim P.W.2 have denied the complicity of the appellant, how he can be convicted for commission of rape. This point detained the court very long because hostility of these two witnesses cannot be gathered from the facts that the first informant and his wife had was resiled from their earlier statements wherein they had blamed the appellant to have committed rape. Hostility gives right for cross-examination to the party, who had called such witness, to the extent they support the version of the party calling them, that part of statement is not disputed by the party calling him/her, only on the point they resiled from their earlier statements, veracity of those statements come under judicial scrutiny. During cross-examination of these these two witnesses, prosecution has been successful to show that this part of statement is not a true account for extraneous reasons. For this reason, the hostile statement made by these two witnesses has been rightly rejected by the trial Judge being of doubtful veracity. Complicity of the appellant is established by evidence independent and distinct from the statement of these two witnesses, therefore, the learned trial Judge has committed no legal error in recording finding of guilt against the present appellant.

Plea of false implication on account of parti bandi is unsubstantiated, darkness of night as the reason for not to identifying the rapist cannot be accepted. In the darkness rapist can find a young girl why she cannot identify him, on this score, I am unable to accept the argument of the appellant.

No other arguments has been raised in support of the appeal, finding recorded by the learned trial Judge are well substantiated from the record, cogent reasons have been given in support thereof. The appeal has no substance and it deserves to be dismissed.

Accordingly, criminal appeal is dismissed. The conviction and sentence awarded by the trial court vide judgment and orders dated dated 09.06.2015 passed in S.T. No. 32 of 2011 [State Vs. Shishupal and others] are hereby affirmed. The appellant is directed to serve out the remaining sentence. The period already undergone would be adjusted in accordance with the provisions contained in Section 428 Cr.P.C.

Office is directed to communicate this decision to the lower court forthwith and to send back the lower court record.

[Pratyush Kumar, J.]

Order Date :- October 18th, 2016

Prajapati