Sripal vs State Of U.P.
2016 Latest Caselaw 6715 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
						  Judgment reserved on 24.8.2016   	                                       Judgment delivered on 27.10.2016
 
Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 5136 of 2015
 

 
Appellant :- Sripal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sanjay Kumar Singh,Rajesh Kumar Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pratyush Kumar,J.

The instant appeal filed on behalf of the accused/appellant is directed against the judgment and orders dated 15.9.2015 passed by Sri V.K. Singh (H.J.S.) Additional Sessions Judge/F.T.C., Gautam Budh Nagar in Session Trial No. 427 of 2013 (State Vs. Sripal) arising out of Case Crime No. 66 of 2013 under section 376, 380, 451 IPC whereby, the appellant has been convicted under sections 376, 380, 451 IPC and sentenced to undergo, rigorous imprisonment of ten years and to pay fine of Rs. 50,000/-, rigorous imprisonment of three years and to pay fine of Rs. 2,000/- and rigorous imprisonment of two years and to pay fine of Rs. 1,000/-, respectively. In default of payment of fines to further undergo imprisonment of six months, two months and one month on three counts, respectively.

Heard Sri Sanjay Kumar Singh, learned counsel for the appellant and Sri V.P. Singh Kashyap, learned AGA for the State-respondent and perused the record.

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

That on 9th February, 2013 at 2 p.m. Praveen Kumar R/o village Bhikhampur gave a written report at P.S. Raghupura stating therein that in the night of 15th February, 2013 at about 10 p.m. accused Shripal r/o village Gowala finding her mother victim aged about 60 years alone in the house committed forcible rape with her. While leaving he also took her mobile 8937056044. With the help of call details his whereabouts were traced at his sasural. Till that day, they were collecting information and fearing humiliation, did not come to the police. Request was made for suitable action.

At this check FIR was scribed, case crime no. 66 of 2013 under sections 376, 457, 380 IPC was registered at P.S. Raghupura, District Gautambudh Nagar and investigation was entrusted to S.I. Mahesh Rathore who immediately started investigation, searched for the accused, recorded the statements of the first informant and other witnesses, inspected the spot, obtained the medical evidence and submitted the charge sheet.

The appellant stood for trial before the Court of Session, where he was charged under sections 326, 380, 457 IPC. On his denial he was tried, found guilt and punished as above.

On behalf of the appellant learned counsel Sri Sanjay Kumar Singh has submitted very brief arguments; that prosecution story is unnatural and improbable; that victim was aged about 60 years, she was sleeping in her house; appellant had no opportunity to know that she was alone. He further submits that FIR was lodged with four days delay; from the facts mentioned in the FIR identification of the appellant is highly doubtful. He further submits that at the place of occurrence at the relevant time there was no light. The statement of victim and other witnesses are not worth credence. Appellant was falsely implicated due to enmity on account of land. The learned trial Judge has not appreciated the evidence in proper perspective and recorded erroneous findings of guilt.

On behalf of the State-respondent these arguments have been repelled and it has been submitted by learned AGA that delay in FIR has been explained; statement of victim is fully reliable; no old lady would permit her name to be stigmatized. He has further submitted that findings recorded by the learned tiral Judge are well substantiated from the record. Cogent reasons have been given in support thereof. The appeal has no substance and deserves to be dismissed.

Now in reference to my obligation as an appellate court hearing appeal against conviction, I would like to refresh my mind by recalling 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 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."

Before re-examining and reassessing the evidence adduced by the parties before the trial court I would like to place brief summary thereof.

Praveen Kumar P.W.1

He is the first informant. He has stated that on Ist February, 2013 he had gone to attend a marriage ceremony in his aunt's (bua) house where at 12 in the night he came to know that her mother was raped. On the following morning he came back with his father and was informed about the occurrence by his mother. Thereafter he narrated the incident as communicated by his mother reiterated the facts stated in the written report and briefed the written report Ext. Ka-1.

Victim P.W.2

She has supported the prosecution version by stating that on the fateful night she was alone in the house at about 10.30 p.m. one person suddenly grabbed her throat and laid down on her. He threatened her with her life. He forcibly committed rape with her. The light of mobile when fell on the face of assailant she had identified him. Lights were on in the house. On 16th Febuary, 2013 her husband came back thereafter he lodged the FIR. She has identified the appellant in court. According to her at the time of incident he was armed with knife. It was raining and the winds were blowing. She has proved her statement recorded under section 164 Cr.P.C. Ex. Ka-2.

Sri Bhagwan P.W.3

He is the nephew of the victim. According to him it was raining intermittently. At about 9-9.30 p.m. he saw the appellant passing through, heading towards house of the victim. At about 10-10.30 p.m. he saw him coming back. Thereafter 10-14 minutes later victim came out of her house and raised alarm. She told him about the incident. He had informed the first informant at about 11 p.m.

Dr. Smt. Sweta Mohanti P.W.4

She medically examined the victim on 19th February, 2013. According to her victim was married. She had five children. During external examination no mark of injury was found. There was no injury on her private parts. Hymen was old torn. Slide of vaginal smears was prepared. She has proved medical examination report Ext. Ka-3.

Dr. H.N. Lavalia P.W.5

He is the pathologist who examined the slide of vaginal smear. He has proved pathology report Ext. Ka-4, reference slip Ext Ka-5. According to him no spermatozoa was found therein.

S.I. Mahesh Rathore P.W.6

He is the Investigating Officer. He gave details of steps taken in the course of investigation. He has proved site plan Ext. Ka-6.

S.I. Ajai Kumar Yadav, P.W.7

He is the 3rd Investigating Officer who gave details of the steps taken in the course of investigation. He has proved charge sheet Ext. Ka-7.

Constable Gajendra Singh P.W.8

He is the scribe of the check FIR. He has proved check FIR Ext. Ka-8, copy of the report of the general diary Ext. Ka-9.

Inspector Mukesh Sharma P.W.9

He is the second Investigating Officer. He gave details of the steps taken by him in the course of investigation.

The case of the defence before the trial court was that family members of the victim wanted to purchase one bigha land from him. He used to do property dealing but he could not provide them one bigha land. On this account they were inimically and falsely implicated to him.

In his statement recorded under section 313 Cr.P.C. the appellant has denied the facts stated by the prosecution witnesses. According to him witnesses were falsely deposing due to enmity. Police investigation was fictitious, report was lodged ante- timed. Thereafter he narrated the defence version. In the defence two papers were filed, one was sale deed dated 29th December, 2012 and other Khatauni in favour of Amar and Rajpal.

I would like to proceed with re-examination and reassessment of prosecution evidence first by critical examination of the statement of Praveen Kumar P.W.1, he is the first informant and on behalf of the appellant plea has been raised that FIR was lodged with inordinate delay for the reason identification of the accused could not be made by the victim correctly.

Before proceeding further I would like to place on record the facts that victim is a person of 60 years age. She has five children. Though medical evidence about rape is in negative but keeping in view the peculiar circumstances surrounding the victim and noticed above, I think on 15th February, 2013 at about 10 p.m. forcibly rape was committed with the victim, on this point I have no doubt. Her statement on this point during the cross examination remained unshaken and statement of the victim about rape cannot be disbelieved due to absence of any injury on her person. Here I would like to make reference to the observation of the Hon'ble Apex Court made in the case of Sheikh Zakir vs. State of Bihar, (1983) 4 SCC 10 where the Hon'ble Supreme Court made the following observation:

"The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim, who was by force prevented from offering serious physical resistance, she cannot be disbelieved"

Thus having convinced myself about the truthfulness of the incident now I proceed to discuss the statement of Praveen Kumar P.W.1. He is the son of the victim. According to him on account of marriage in a relation's house on that night he was elsewhere and at 12 night he received telephonic message about the incident. He and his father on the following morning came back and they were apprised about the occurrence. In the written report he has mentioned that the assailant took the mobile phone of his mother with him. It was tracked down and traced to the appellant, who was tracked down at his sasural. After ascertaining true position and for avoiding humiliation FIR is being lodged.

Now the question arises whether this explanation for the delay in the FIR is sufficient or the facts mentioned in the FIR do not depict the correct state of affairs or this witness is speaking the truth when he says that on account of honour of the family and to avoid humiliation earlier FIR was not lodged and assailant was identified by his mother. This variation that reason for not lodging the FIR was only to avoid the humiliation cannot be believed because he also states that after coming to know about the occurrence his whereabouts with the help of call details were traced. Had there was no doubt about the identity of the assailant, the FIR would not have been delayed because ultimately it was lodged, therefore, fact disclosure of commission of rape with his mother was not a factor to delay the lodging of the FIR, rather reason for delay was that the family members were apprehensive that identify of the assailant might not have been correctly discovered by the victim.

In this way statement of Praveen Kumar P.W.1 does not advance the cause of the prosecution.

Sri Bhagwan P.W.3 is an alleged witness who had seen the appellant going towards the house of the victim and after some time coming back. He is the person who was informed by the victim about rape immediately after the occurrence. This witness admits this fact. Now the question arises whether presence of the witness in front of the door of his house at the relevant time was natural and probable. It was month of February and in western Uttar Pradesh winters remains quite severe upto that time. He does not say that he was warming up with fire. Rather he says there was intermittent rain. No one would expose himself to such weather in the night. His reason for his presence at the relevant time at the claimed place is unnatural and improbable. Instead of supporting the prosecution case he has damaged the truthfulness of the prosecution case by admitting that at that time there was no light. In a cloudy weather in the darkness of the night it is improbable that the witness could have seen and identified a person of another village. It also diminishes the value of the statement of the victim where he says that all the lights of her house were on at the relevant time.

I am of the opinion that about the occurrence statement of P.W.2 victim is a true account of what happened with her on the fateful night. But I do not believe her that light of the house were on at that time. So far as identification of the assailant with the help of light of mobile is concerned, an aged lady who is being raped would not be in a position to identify the rapist because light of the mobile phone is not very illuminating. It was not switched on accidentally for a long duration further victim was aged about 60 years. Medically her eye sight must have been weakened by that time and here lies the reason that even her statement about identity of the assailant was not believed by the family members. Now the question arises when her son does not believe her statement on this point, whether court can believe it. Had call details of the mobile phone of the victim would have been proved in accordance with provisions contained in section 65 B of the evidence Act and the electronic evidence would have been adduced that it was used at the village where the appellant was married, her statement would have received corroboration to some extent but in absence of that I am of the opinion about the veracity of her statement, disclosing the identity of the assailant, to be of doubtful veracity.

Though with reluctance I come to the conclusion that in the present case prosecution could not prove charges against the present appellant beyond reasonable doubt and the learned trial Judge has not taken into consideration the points noticed hereinabove and recorded erroneous finding of guilt.

Here I would like to observe that when prosecution could not prove charges beyond reasonable doubt, in this reference in my opinion doubt must be of a reasonable mind. It must not be fanciful or of timid mind. As mentioned hereinabove all the family members doubted the correctness of the identification of the assailant by the victim. Therefore, I am confident that while extending benefit of doubt I am only agreeing with the opinion formed by the family members of the victim.

Thus appeal has substance. The appeal is allowed. Impugned judgment and orders dated 15.9.2015 passed by Sri V.K. Singh (H.J.S.) Additional Sessions Judge/F.T.C., Gautam Budh Nagar In Session Trial No. 427 of 2013 (State Vs. Sripal) as well as conviction and sentences of the appellant are set side. Sripal is acquitted from the charges under section 376, 380, 451 IPC. He is in jail. If he is not wanted in any other case, he be released forthwith.

Office is directed to communicate this order to the court concerned for compliance forthwith and to send back the lower court record.

Order Date: 27.10.2016

MT**