State Of U.P. vs Kallu
2021 Latest Caselaw 589 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 10
 

 
Case :- U/S 378 CR.P.C. DEFECTIVE No. - 63 of 2020
 
Applicant :- State of U.P.
 
Opposite Party :- Kallu
 
Counsel for Applicant :- G.A.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Mohd. Faiz Alam Khan,J.

Heard Sri Rajesh Kumar, learned Additional Government Advocate and perused the record.

The State has filed this application praying to grant leave under Section 378 (3) Cr.P.C. to file appeal against the impugned judgment and order dated 12.12.2019, passed by the Additional District and Sessions Judge/F.T.C., Sitapur in Sessions Trial No.937 of 2008, State v. Kallu, arising out of Case Crime No.303 of 2001, under Section 376 I.P.C., P.S.Ramkot, District Sitapur, whereby the sole respondent (accused person) was acquitted of the charges under Section 376 I.P.C.

Brief facts necessary for the disposal of this application are that a written application was presented by the informant Sri Krishna on 30.08.2001 at about 14.30 hours to Station House Officer, Ramkot stating therein that on 30.8.2001 at about 9 a.m. his daughter (prosecutrix) aged about 18 years had gone to ease herself in the field of one Goverdhan Yadav, where she was overpowered by the accused, who committed rape on her and fled thereafter.

On the basis of the above written information, an F.I.R. at Case Crime No.303 of 2001, under Section 376 I.P.C. was registered at P.S.Ramkot and the investigation of the same was entrusted to P.W.5, Sub Inspector Amit Kumar, who recorded the statement of prosecutrix, inspected the spot on the same day, prepared a site plan and after recording the statement of witnesses and collecting the medical reports pertaining to the prosecutrix submitted charge sheet against the respondent Kallu under Section 376 I.P.C.

It is also pertinent to mention here that the prosecutrix was medically examined by P.W.4, Dr. Sunanda on 31.8.2001 at 2 p.m. and according to the medical report, the hymen of the prosecutrix was intact. No blood or any discharge was seen and vaginal smear prepared by cotton swab was sent to the pathologist for evidence of spermatozoa. However in the supplementary report submitted, no spermatozoa was seen and the bone age of the prosecutrix was found about 13 years. No injury of any kind was found on the person of the prosecutrix and according to P.W.4, Dr. Sunanda, no definite opinion about the rape could be given.

The prosecution in order to bring home the charges against the respondent Kallu, apart from the documentary evidence relied upon the testimony of P.W.1- Sri Krishna (father of the prosecutrix), P.W.2-Prosecutrix, P.W.3--Gargi, P.W.4-Dr. Sunanda, P.W.5-Sub Inspector Amit Kumar (Investigating Officer), P.W.6- Sub Inspector Virendra Kumar Singh (who recorded the chik F.I.R. and G.D.Qaymi and P.W.7-Dr.K.L.Sindhi, who proved the supplementary medical report and X-ray reports).

After recording of the evidence of the prosecution, statement of respondent was recorded under Section 313 Cr.P.C. wherein he denied the evidence of the prosecution and stated that he has been falsely implicated in this case.

The trial court after appreciating the evidence available on record came to the conclusion that the prosecution has failed to prove its case against the respondent beyond reasonable doubt and, therefore, by passing the impugned judgment acquitted the respondent of the charges under Section 376 I.P.C.

Aggrieved by the impugned judgment and order passed by the trial court, the State has filed this application requesting for grant of leave to appeal.

Learned counsel for applicant State while pressing the application for grant of leave submits that the trial court has committed manifest error in appreciating the evidence on record and has recorded a finding of acquittal in utter disregard to the settled principles of appreciation of evidence. It is further submitted that the trial court has given much weight to insignificant contradictions, which have occurred in the testimony of prosecutrix and unnecessarily treated the evidence of the prosecutrix as unreliable and untrustworthy, while the law with regard to the victim of rape is well settled, that the evidence of the victim of rape is at par with the evidence of injured witness and, therefore, the same could not be brushed aside or disbelieved on the basis of minor omissions or contradictions.

It is also submitted that the trial court has completely misread the evidence of the prosecutrix and other prosecution witnesses and has disbelieved the prosecution evidence without any basis and, therefore, the State be granted leave to file appeal in order to challenge the order of acquittal passed by the courts below.

We have heard learned State counsel. Perusal of record would reveal that the F.I.R. of this case was lodged by the father of the prosecutrix and he while appearing as P.W.1 has stated that the prosecutrix had gone to ease herself in the field of Goverdhan where respondent had overpowered her and committed rape. He further stated that on a hue and cry made by his daughter, he along with Gargi and Rakesh arrived in the field of Goverdhan and had seen the respondent running away from the spot towards south. He further stated to have lodged the F.I.R.

P.W.2 (prosecutrix), who is an important witness of this crime has stated that at the relevant date and time respondent committed rape with her and when an alarm was raised by her, her father, Gargi and Rakesh arrived. P.W.3-Gargi is a witness of the fact that he had seen the prosecutrix coming from the field of Goverdhan Yadav and on being asked she told her that she has been subjected to rape by respondent Kallu. All other witnesses of the prosecution are official witnesses who have proved the medical reports, chik F.I.R. and the investigation part of the crime.

We have very carefully perused the evidence of the prosecution which was placed before the trial court and have found that the testimony of P.W.2 (prosecutrix), who is the star witness of the crime could not be believed due to inherent inconsistency. The incident is stated to have happened at 9 a.m. in the morning when some villagers were working in the nearby fields. However, no independent witness of the crime has been produced and the only witness P.W.3-Gargi, who was produced by the prosecution had only stated that he saw the prosecutrix coming from the field of Goverdhan and on being asked she narrated the whole story. However, in his examination in chief, P.W.3-Gargi had stated that prosecutrix herself came to him and had told the whole story. P.W.3, Gargi in his statement has further stated that he did not see respondent running from the scene of crime while the informant (P.W.1) has stated that he arrived at the scene of crime along with P.W.3-Gargi. In this factual matrix, the trial court was of the view that there is material contradictions in the evidence of P.W.1 (informant) and P.W.3-Gargi. Perusal of record would also reveal that prosecutrix in her evidence has stated that her Salvar was blood stained after the incident and the bangles which she was wearing were broken and the respondent has inserted his private part to the full extent. The trial court having regard to the medical report of the prosecutrix came to the conclusion that the evidence of the prosecutrix could not be believed on the score that no injury has been found on the person of the prosecutrix in her medical report and no spermatozoa was also found in the supplementary medical report and no cloth of the prosecutrix, having blood stains and broken bangles were collected by the Investigating Officer, therefore, having regard to the above material contradictions the trial court was of the view that the testimony of the prosecutrix could not be believed. The perusal of the judgment of the trial could would also reveal that P.W.1 (informant) has also admitted in his cross examination that a dispute between him and the respondent, pertaining to the lease of a pond, was existing and in fact the pond had been illegally possessed by the respondent pertaining to which he had moved complaints to Sub Divisional Magistrate, Sitapur praying to evict the respondent.

There cannot be any other stipulation than the fact that the golden principle which runs through the web of criminal jurisprudence is, that the accused of a crime is presumed to be innocent unless the prosecution is able to prove its case beyond reasonable doubt. In other words, the evidence of the prosecution, to bring home the charges in criminal cases, should be of such a character that a reasonable person of normal prudence may arrive at a conclusion that the crime has been committed by the accused person. Needless to say, a criminal trial proceeds with the presumption of innocence of the accused person and this presumption of innocence stands fortified with the acquittal of the accused person by the trial court. So, very strong and cogent reasons are required for interfering in the judgment of acquittal.

Having perused the evidence of the prosecution available on record vis-a-vis the judgment of acquittal passed by the trial court, we are of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt and it cannot be said that the view taken by the trial court is perverse or unreasonable. Per contra, in our considered opinion the view taken by the trial court is a possible view and the judgment of the trial court cannot be said to be not based on evidence on record.

Accordingly no interference in the judgment of the trial court is called for. Thus, the prayer for grant of leave to appeal and, consequently, the application seeking leave to file appeal are rejected.

Since the application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive and consequently the appeal is also dismissed.

Order Date :- 11.1.2021/Irfan