Ram Dularey Yadav vs State Of U.P.
2016 Latest Caselaw 5639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 53
 

 
Case :- CRIMINAL APPEAL No. - 1426 of 2006
 

 
Appellant :- Ram Dularey Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- M.P. Yadav,D.C. Mishra,S.N. Yadav
 
Counsel for Respondent :- Govt. Advocate,Awadhesh Rai
 
And
 
Case :- CRIMINAL REVISION No. - 2218 of 2006
 

 
Revisionist :- Virendra Kumar Yadav
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Revisionist :- Awdhesh Rai
 
Counsel for Opposite Party :- Govt. Advocate,S.N. Yadav
 

 
Hon'ble Harsh Kumar,J.

The present criminal appeal has been filed by accused/ appellant, the sole convict against the judgment and order dated 10.03.2006 passed by Additional Sessions Judge, Court No.1, Mau in Sessions Trial No.111 of 2003 (State Vs. Ram Dularey and others), arising out of case crime no.179 of 2002, under Sections 363 & 366 read with Section 34 of the Indian Penal Code, P.S. Dohari Ghat, District Mau. By the impugned judgment and order in trial against the appellant and three others, the learned lower court did held only appellant Ram Dularey Yadav to be guilty of the offence and acquitted the three others and after hearing the convict on the point of sentence, sentenced him for the offence under Section 363 IPC for seven years' rigorous imprisonment with Rs.2000/- and under Section 366 IPC for ten years' rigorous imprisonment with fine of Rs.3000/- and in case of default in payment of fine to further undergo six months' imprisonment. By the present appeal the appellant has prayed that his conviction is liable to be set aside and allowing the appeal he may be acquitted of the charges.

Against the impugned judgment and order with respect to the acquittal of co-accused Ram Gyan Yadav, Surendra Yadav and Smt. Subhawati Devi, criminal revision no.2218 of 2006 has also been filed by first informant Virendra Kumar Yadav seeking relief of setting aside their acquittal order and convicting them along with Ram Dularey for the offences under Sections 363 & 366 read with Section 34 IPC as well as for enhancement of sentence imposed on appellant Ram Dularey.

The FIR of this case was lodged by Virendra Kumar Yadav on 18.05.2002 at 00.10 a.m. against four persons named therein at Police Station Dohari Ghat, District Mau at case crime no.179 of 2002, under Sections 363 & 366 IPC. The averments of FIR in brief are as under:-

"That the victim, sister of the first informant, student of Class 9 aged about 13 years 3 months (D.O.B. 15.02.1989) proceeded to meet to her friend from the house of first informant; that there is a P.C.O. of Ram Dularey Yadav, who has enticed away the first informant's sister at about 10.00 a.m. on 14.05.2002 when she was going to meet her friend and had taken her somewhere else from Rasoolpur Market; that the first informant made search of his sister for several days, but could not know her whereabouts and when he asked the accused persons, instead of making any help in search of his sister, they threatened him."

After lodging of FIR, investigation was completed by the Investigating Officer and charge sheet was submitted against four accused named in the FIR and after taking cognizance, the case was committed to the court of Sessions. After committal of case, in Sessions Trial No.111 of 2003, charges were framed against all the four accused for committing the incident in question under Sections 363/ 34 and 366/34 IPC. The accused denied from the charges and claimed trial.

In order to prove its case and charges against the accused persons, the prosecution produced Laxmi Yadav and Kripa Yadav as eye witnesses as PW-1 and PW-2, Virendra Kumar Yadav being first informant as PW-3, Shiv Kumar Singh, Sub-Inspector, Investigating Officer of the case as PW-4, Jagdish Yadav, Head Constable to prove the Chik FIR as PW-5 and Satya Ram, Assistant Teacher, to prove the age of the victim according to School Register as PW-6.

After completion of prosecution evidence, statements of the accused persons were recorded under Section 313 Cr.P.C., who did not produce any witness in defence evidence. The learned Additional Sessions Judge after hearing the parties' counsel and perusal of record, by the impugned judgment and order acquitted the three persons named in the FIR and convicted the appellant Ram Dularey Yadav for the offence under Section 363 & 366 read with Section 34 IPC and sentenced him as mentioned above.

Heard Shri Jitendra Kumar Yadav, Advocate holding brief of Shri S.N. Yadav, learned counsel for the appellant in criminal appeal no.1426 of 2006 and counsel for the opposite parties in criminal revision no.2218 of 2006 and learned A.G.A. for the State. No one appeared for the first informant in criminal appeal no.1426 of 2006 or for revisionist in criminal revision no.2218 of 2006.

Learned counsel for the appellant assailed the impugned judgment and order on various points, which will be discussed hereinafter while the learned A.G.A. supported the impugned judgment and order and submitted that the appeal has been filed with false and baseless allegations and is liable to be dismissed.

None appeared to argue the revision filed by the first informant against the acquittal of three accused and the learned counsel for the opposite parties submitted that the acquittal of opposite parties does not suffer from any illegality, irregularity or incorrectness and so the revision is liable to be dismissed. It is pertinent to mention that in the above revision, the convict accused/ appellant Ram Dularey Yadav has not been arrayed as opposite party, but in the prayer clause of revision the prayer for enhancement of sentence of Ram Dularey Yadav has also been sought, which is legally not maintainable. It is also pertinent to mention that the trial court has sentenced the appellant Ram Dularey Yadav with maximum sentence provided under Sections 363 & 366 IPC and the sentence so imposed may not be enhanced to any extent beyond provisions of Sections 363 & 366 IPC.

The point-wise discussions of the arguments raised on behalf of the appellant are being made as under:

The incident in question is alleged to have been taken place on 14.05.2002 at about 10.00 a.m., of which FIR has been lodged on 18.05.2002 at 00.10 a.m., which has been assailed by appellant on following points:

(a) FIR has been lodged with inordinate delay of 4 days, at 00.10 hours in the midnight.

(b) The first informant is cousin brother of the victim and is an Advocate, but the FIR has been got scribed by Harish Chandra Yadav, who has not been produced by the prosecution.

(c) As per FIR the first informant was not the eye witness of the incident and there is no mention of any eye witness in the FIR.

(d) The parents of the victim have neither been shown as witnesses in the charge sheet nor were produced before the court nor their statements under Section 161 Cr.P.C. were recorded.

(e) PW-1 and PW-2, the alleged eye witnesses of the incident, who allegedly seen the victim at the time when she was being carried out by the appellant through Jeep, are closely related with the first informant as well as father of the victim and belong to the same village and not making of any disclosure by any of them to the first informant or father of the victim is quite unnatural and makes the prosecution story false and highly improbable.

(f) There is property dispute between the father of the victim and the accused/ appellant and the first informant Virendra Kumar Yadav, uncle of victim is an Advocate and has fabricated the false prosecution story in the FIR, for falsely implicating the appellant and others due to above property dispute.

(g) The nature of offence requires its committal in the darkness in hiding manner in absence of general public and allegations of its committal in broad day light at about 10.00 a.m. is absolutely wrong and highly improbable.

(h) The appellant is a handicapped person with 60% disability in his right leg and the victim may not have eloped with a disable person, under any imagination, particularly when there is no whisper of any love affair between the two.

(i) The learned trial court acted wrongly and illegally in convicting the appellant while acquitted the three others on same set of evidence.

(j) The victim was major at the time of alleged incident and appears to be living somewhere else under the knowledge of her parents.

(k) For not producing the parents of victim before the trial court, adverse inference ought to have been drawn against the prosecution and accused/ appellant should have been acquitted by giving benefit of doubt.

(l) The conviction of appellant is based on misreading of the evidence, and surmises and conjectures and is liable to be set aside.

The first informant- PW-3 and parents of victim are not alleged to be the eye witness as of the incident of enticing away the victim by Ram Dularey Yadav or other accused. The prosecution has produced Laxmi Yadav and Kripa Yadav as PW-1 and PW-2, who have stated that on 14.05.2010 at about 10.00 a.m. when they were coming back after distributing the milk, they saw that accused/ appellant Ram Dularey Yadav and the victim girl, who were talking each other at the temple of Shiv Ji at Parikhapur and at some distance co-accused Ramgyan, Surendra Nath Yadav and Smt. Subhawati were standing and in the meantime a Jeep came from west, in which Ram Dularey made to sit the victim by catching hold of her arm. PW-1 at Page 3 has stated that after distributing the milk in the Market at about 9.00 a.m., he remained in the Market upto 10.00 a.m. and before leaving for home, PW-2 Kripa Yadav met him in the Market and asked him to have a cup of tea, which took sometime, while victim and accused/ appellant were talking at the door of temple and thereafter on road, but he did not go there and kept watching from a distance of about 20 steps. He has further stated that next day at about 4.00 p.m. he told the police, that he had seen the accused persons enticing away the victim. On this point PW-2 Kripa Yadav has made a different statement that he was returning to home after distributing milk in the Market along-with Laxmi Yadav and when they reached near the temple of Shiv Ji on roadside, the appellant and victim were laughing and talking with each other while co-accused Ramgyan, Surendra Nath and Subhawati were standing near the temple and when Jeep came from western side, the appellant and victim left by the Jeep and co-accused also left to their homes after a while. He has also stated that, they asked co-accused Ramgyan as to where Ram Dularey and victim had gone, but he did not reply and next day on i.e. 15th May he had told the entire story to first informant Virendra Kumar Yadav, about seeing the victim and appellant Ram Dularey talking each other and of his leaving with victim by Jeep.

Upon going through the statements of the above witnesses, I find that there are material contradictions in their statements as to the narration of the incident allegedly seen by them. While PW-1 has sated to have seen the appellant and victim talking with each other from a distance of 20 steps, the PW-2 has stated that after taking tea, at the tea stall of Sintu at a distance of 30-35 steps, when they left after 15-20 minutes, they saw the appellant and victim talking with each other. PW-1 has stated at page 6 of his cross-examination that first informant Virendra Kumar Yadav belongs to his family (Khaandan) and father of the victim lives in Jaunpur and similarly PW-2 at Page 3 of his cross-examination has stated that first informant Virendra Kumar Yadav happens to be his nephew as both of them belongs to the same village, but later on he has admitted that father of victim as well as father of first informant Virendra Kumar are his cousin brothers. Both the above witnesses have admitted that there is enmity between the prosecution party and the accused/ appellant over alleged forcible construction of gate by father of victim after encroaching upon the land of co-accused Ramgyan, the real brother of accused/ appellant Ram Dularey.

It is also pertinent to mention that in the nature of offence of enticing away of a minor or major girl, the natural conduct of any person is of having sympathy and of extending a helping hand towards the victim and her family. Sometimes a stranger may avoid poking his nose in such matters under apprehension that the family of victim may feel bad of interference in private matters for making girl or her family defamed, but when the family members of the victim themselves came into contact with such persons like PW-1 and PW-2 during search operations, it is quite improbable and highly unnatural conduct of such persons (howsoever distant relative he may be) not to tell him the whereabouts or facts known to them. In the facts and circumstances of the case the PW-1 being relative of the victim, as well as first informant and PW-2 being Chacha (close relative of victim and PW-3) would certainly have told him the entire story whatever had they seen with names of culprits, the very next day when they admittedly met the first informant, and not disclosing of these facts by them to the first informant or father of the victim (who is also alleged to have come from Jaunpur on the next day of incident) is quite unnatural and unbelievable. There is no whisper in the FIR lodged in the midnight, after about more than four days of the incident that the alleged eye witnesses PW-1 and PW-2 were the eye witnesses of the incident and ever told the first informant of the occurrence having been seen by them. The FIR is not alleged to have been lodged on the information received from PW-1 and PW-2.

In the case of Gopal, Krishnaji Ketkar vs Mahomed Haji Latif & Ors, 1968 AIR 1413, a Three Judges Bench of Apex Court has held that:

"Where a party in possession of the best evidence which would throw light on the issue in controversy withholds it - Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him."

Undisputedly the parents of the victim were living at Jaunpur and as first informant PW-3, they are also not alleged to be eye witnesses of the incident. However, they were the best witnesses to depose before the trial court that their daughter is missing since 14.10.2002 and is alleged to have been enticed away by the accused/ appellant or his associates. They could also have deposed the fact of victim having been fetched by accused/ appellant by Jeep at 10.00 a.m. on the basis of hear-say as their position would have been similar to that of first informant/ PW-3, who is also not eye witness of enticing away. For not producing the best evidence by the prosecution before the trial court about missing of the minor girl without assigning any reason, adverse inference ought to have been drawn by the trial court against the prosecution to the effect that had they been produced as witnesses, they would not have been able to support the prosecution case and conceal the truth of having knowledge of the whereabouts of victim or her being a major girl. In view of adverse inference so drawn against the prosecution for suppressing the truth, it is a fit case where accused/ appellant becomes entitled to a benefit of doubt and consequentially acquittal.

It is not disputed that the accused/ appellant Ram Dularey is a handicapped person, who has filed his disability certificate issued by Medical Board of Chief Medical Officer, Mau certifying 60% disability in his right leg and it has been admitted by PW-2 and PW-3 that accused/ appellant is a handicapped person disabled with one leg and cannot walk properly because of problem with one leg. It is not the case of the prosecution that the accused/ appellant was having love affair with the victim, the minor girl and enticed her away on account of the love affair. It is also pertinent to mention that since the accused/ appellant is a handicapped person until and otherwise proved, no girl is supposed to fall in love with such a disabled person and so even in case of any one side liking of victim by accused/ appellant, there can be no reason for the victim to go with the accused/ appellant at her own. There is no whisper of any force having been used by the accused/ appellant or other accused persons in forcibly sitting the victim in Jeep with the accused/ appellant. However, in case of use of forcible kidnapping, the victim would have raised alarm and the persons inside and outside the Jeep (by which she was allegedly taken away) including the alleged eye witnesses PW-1 & PW-2 (who being relatives, were her well wishers, would have come rushed for her rescue and would have immediately informed the parents as well as Vakil, Chacha of the victim, PW-3. In absence of any evidence to above effect, the prosecution has also failed to prove any motive of accused/ appellant behind the crime.

It has been contended by the accused/ appellant that the victim was major and was living with her parents in Jaunpur and the police have not made any efforts to trace out the victim at Jaunpur or anywhere else or either in or towards the Police Station Madhuban, where the appellant allegedly taken her away. It is pertinent to mention that the first informant is a law graduate and it is expected from him as a prudent man, to inform the police immediately after the incident, so that there could have been better possibility of tracing out the victim. The prosecution has also not made any efforts of tracing the victim by taking the accused/ appellant on police remand. The prosecution has failed to explain the inordinate delay of around 4 days in lodging FIR (from 10 a.m. on 14.05.2002 to 00.10 a.m. on 18.05.2002) and for lodging it urgently at midnight at 00.10 a.m. It has also been contended that as per entries in the family register, the victim was major at the time of incident. The possibility of eloping of victim in the darkness of night without knowledge of anybody, may not be ruled out.

Admittedly the first informant/ PW-3 is highly educated person and postgraduate as has been admitted by him in his cross-examination at Page 8 of his cross-examination that he is M.A., LL.B. He has stated that he lives at home and does agricultural work and since the matter was related to his prestige he was very much nervous and so instead of writing the written report himself, got it written by Harishchandra Yadav on his dictation and in dictating there was no problem. It is pertinent to mention that the father of the victim had come the very next day, but no reason has been assigned as to why the FIR (which was lodged after around 4 days at midnight) was not lodged by father himself.

PW-1 and PW-2 are only chance witnesses and have also stated to have enquired into with co-accused Ramgyan, Subhawati and Surendra Nath as to where the victim and accused/ appellant have gone, but even when no reply was given by them, they did not inform the first informant or father of the victim, which is also quite unnatural and their conduct in not doing so despite being related, makes their contention of being eye witnesses doubtful and untrustworthy. Similarly on alleged asking by PW-1 and PW-2 from Ramgyan and others, not giving any threat by them is quite unnatural, while on mere enquiry by the first informant, they allegedly threatened him. The first informant has not assigned any reason when neither he was eye witness of the occurrence nor got any information from alleged eye witnesses then why and on what ground he approached the family members of accused/ appellant i.e. co-accused persons for enquiring about the victim.

It is settled principle of law that the evidence of interested or related witnesses should be considered with caution and until and unless it is found to be trustworthy the conviction of accused on the basis of evidence of related or interested witness is not justified. In view of the discussions made above and considering the unnatural conduct of PW-1 and PW-2, I am of the considered view that they are not proved to be eye witnesses of the incident of enticing away victim by accused/ appellant in presence of co-accused persons or otherwise and their testimony is neither reliable nor trustworthy.

In the present case the only eye witnesses of the incident, PW-1 and PW-2, are admittedly related/ closely related witnesses and their conduct has been found unnatural in not disclosing and not helping the first informant. The conduct of father of the victim in not lodging the FIR and not appearing before the trial court for stating on oath that his daughter is missing and has been enticed away by the accused/ appellant with the help of other co-accused or otherwise and the conduct of PW-3/ first informant, who himself is a law graduate and is also alleged to be an Advocate in not mentioning the names of alleged eye witnesses in the FIR and lodging of FIR with inordinate delay of 4 days at midnight without any whisper about the love affair if any, between the victim and the accused/ appellant and further the undisputed disability of accused/ appellant makes the entire prosecution story highly improbable and doubtful and gives strength to the arguments that the father of victim and his family members including first informant, on account of property dispute have falsely implicated the accused/ appellant and his family members, due to suspicion.

In view of the facts and circumstances of the case, there is sufficient reason for drawing adverse inference against the prosecution for not producing the parents of victim to the witness box before the trial court. The evidence on record shows that PW-1 and PW-2 were not the eye witnesses of alleged incident of fetching the victim by accused/ appellant in broad day light at 10.00 a.m. instead of choosing sometime of loneliness in the late evening or early morning, and they have been set up subsequently in order to improve the case against the accused persons. The above witnesses are interested witnesses and their unnatural conduct and contradictory testimony is not reliable for holding the accused/ appellant guilty and the learned trial court has misread the evidence on record. I am of the considered view that the prosecution has failed to prove its case to the hilt beyond any shadow of reasonable doubt and has failed to bring home the charges against any of the accused by any cogent, reliable, independent and trustworthy evidence. Considering the totality of facts and circumstances, it is a fit case where the accused/ appellant is entitled to be given the benefit of doubt and the prosecution case is liable to be rejected. The accused/ appellant is also entitled for an order of acquittal.

It is settled principle of law as has been held by the Apex Court in the case of K. Prakashan Vs. P.K. Sunderan (2008) 1 SCC 258 that -

"When two views are possible, appellate court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial court was neither perverse nor suffered from any legal infirmity or non-consideration/ misappropriation of evidence on record, reversal thereof by High Court is not justified."

In view of the discussions made above, the appeal is liable to be allowed. Since in the order of acquittal of opposite party nos.2 to 4 Ramgyan, Surendra Nath Yadav and Smt. Subhawati, against whom there is virtually no evidence at all, there is no illegality, irregularity, impropriety, incorrectness or perversity, there is no sufficient ground for interfering with or setting it aside order of their acquittal. The criminal revision has no force and is liable to be dismissed.

The appeal is allowed accordingly and the impugned judgment and order of conviction and sentence of appellant Ram Dularey Yadav is set aside and he is held not guilty of the offences under Sections 363 & 366 IPC. Dismissing the criminal revision no.2218 of 2006 impugned judgment and order of acquittal of opposite party nos.2 to 4 Ramgyan, Surendra Nath Yadav and Smt. Subhawati is confirmed.

The prosecution case stands failed and the accused/ appellant Ram Dularey Yadav is acquitted of the charges under Sections 363 & 366 read with Section 34 IPC. He will be released, if in custody, forthwith unless wanted in some other case.

Let a copy of this order be immediately sent to the Sessions Judge, Mau through e-mail, fax and ordinary post for ascertaining immediate release of accused/ appellant Ram Dularey Yadav unless wanted in some other case.

Let the lower court record be sent to the court below along with copy of this judgment and order without any delay.

Order Date :- 02.09.2016

Anoop