State Of U.P. vs Prem & 3 Ors.
2021 Latest Caselaw 11056 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9
 
Case :- U/S 378 CR.P.C. No. - 1 of 2021		    (A.F.R)
 
Applicant :- State of U.P.
 
Opposite Party :- 
 
1. Prem S/o Ramadhar
 
2. Rameshwar S/o Ramadhar
 
3. Ramteerth S/o Ramadhar
 
4. Parmeshwar S/o Ramadhar
 
Counsel for Applicant :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Manish Kumar,J.

(Per Manish Kumar, J. for the Bench)

1. This Criminal Appeal has been filed by the appellant-State of Uttar Pradesh against the judgment and order dated 22.09.2020 passed by Additional Sessions Judge (POCSO Act and Created for adjudication of Rape Cases), Court No.14, Hardoi in Sessions Trial No.451 of 2016, Crime No.592 of 2016, registered under Section 363, 366, 376D I.P.C. and Section 3/4 of The Protection of Children from Sexual Offences Act, 2012 ( in shourt POCSO Act), in Police Station - Kotwali Sahar, District - Hardoi, whereby the Court acquitted the accused- respondents Prem, Rameshwar, Ramteerth and Parmeshwar.

2. In compliance of this Court's order dated 08.01.2021, the notices have been issued and as per office report dated 27.08.2021, notices have been served personally upon Respondent Nos. 1. Prem, 2. Rameshwar and 4. Parmeshwar, whereas served upon Respondent No.3 Ramteerth through heir.

3. Heard Smt. Smriti Sahai, learned A.G.A. for the State -appellant and perused the impugned judgement and order passed by the trial court and the lower court record.

4. The brief facts necessary for disposal of this appeal as culled out from the case of prosecution are :-

i. On 26.10.2016 a First Information Report ( in short F.I.R) was registered in Crime No.592 of 2016 under Section 363 and 366 I.P.C. disclosing therein, that daughter of the informant aged about 15 years had disappeared while she was sleeping with her family and after enquiring it has been told to the informant that one Prem, resident of same village with the help of his brothers Rameshwar, Ramteerth and Parmeshwar enticed his daughter and took her away.

ii. After investigation the chargesheet was filed under Section 363, 366, 376D I.P.C. and Section 3/4 POCSO Act, in the Court against the accused persons. The concerned Magistrate after taking cognizance committed the case to the Sessions Court for trial.

iii. The trial court framed charges against the accused Prem, Rameshwar, Ramteerth and Parmeshwar under Section 363, 366, 376D I.P.C. and Section 3/4 POCSO Act. The accused persons denied the charges and claimed to be tried.

iv. The prosecution in order to prove its case examined P.W.1 Gopal (informant), PW.2 the Prosecutrix (X), PW. 3 Dr. Smita Singh, PW.4 Dr. Indu Singh, Radiologist, PW.5 S.I. Javed Akhtar, PW.6 Lady Constable Harjit Kaur and PW.7 S.I. Rajkishor Kanaujiya.

v. As a documentary evidence, the prosecution has proved copy of F.I.R. Ext. Ka -1, statement of prosecutrix recorded under Section 164 Cr.P.C. Ext. Ka-2, Medical Examination Report of the prosecutrix Ext. Ka-3, Supplementary Medical Examination Report of the prosecutrix Ext. Ka-4, X-ray report Ext. Ka-5, Site Plan Ext. Ka-6, Chargesheet Ext. Ka-7 , Chick F.I.R. Ext. Ka-8, Mukadama Kaymi/ General Diary Ext. Ka-9, Student Admission Register Ext. Ka-10, Fard Baramadgi Ext. Ka-11, and Fard Supurdginama Ext. Ka 12.

vi. Thereafter the statements of the accused persons were recorded under Section 313 of Code of Criminal Procedure (in short Cr.P.C.), wherein, they denied the commission of crime and stated that the case has been registered falsely.

5. The trial court after hearing the arguments of both the parties and analyzing the evidence came to the conclusion that the F.I.R. has been lodged with the delay of four days without assigning any reason particularly, when the informant on the very next day of the incident came to know that his daughter was enticed and taken away by Prem and his two brothers. Neither in the F.I.R. nor in the statements / depositions, examination-in-chief and cross-examination the informant had never disclosed that from whom he got the information that the accused persons enticed his daughter and took her away.

6. It is further observed by the trial court that there are contradictions in the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the deposition during examination-in-chief and cross-examination and at every stage the version has been changed. In her statement recorded under Section 164 Cr.P.C., the prosecutrix has stated that in the night of 21-22.10.2016 at about 12-01 AM Prem, Rameshwar and Ramteerth enticed her on the pretext of taking her for a ride and gagged her by using clothes and all these three persons took her on a motorcycle and Permeshwar joined them later on.

7. It is also observed by the trial court that it is highly improbable that four persons would go on one motorcycle.

8. The trial court has further observed that in her cross-examination, the prosecutrix has stated that four accused persons came to her house and gagged her and took her away and after coming out from the village, Parmeshwar also met them on his motorcycle.

9. The trial court further observed that as per version by the prosecutrix that she was sleeping with her mother, brother and sister and in her cross-examination at Page No.7, she has admitted that her father was sleeping in the courtyard, so it is naturally not possible to gag her and take her away while she was sleeping in between her mother, brother and sister. In her cross-examination at Page No.7, the prosecutrix has stated that Prem had called her then she came out and while she was going to wake up her father, Prem gagged her, so she introduced a new story. It is also not believable when she was sleeping with her other family members, instead of waking up her mother, brother and sister, she tried to woke up her father, who was sleeping in the courtyard.

10. The trial court further observed that in her cross-examination at Page No.5, the prosecutrix has stated that she went to the terrace through stairs, but the same has not been shown in the site plan i.e. Ext. Ka-6.

11. The trial court has also observed that there is a delay in lodging of the F.I.R. for the reason as per the prosecution case the prosecutrix was recovered after lodging of the F.I.R., whereas as per defence, the F.I.R. was lodged after the recovery of the prosecutrix and in support thereof it has been argued that no time has been mentioned in the recovery memo of "X" i.e. Ext. Ka-11 except the time has been mentioned of handing over of the prosecutrix to the police constable i.e. at 4.00 PM and that too by putting an arrow.

12. The trial court has further observed that the informant in her application has written that one month ago Vimlesh Pradhan had threatened him as his father was contesting the election against him, that is why, due to election of Pradhan, Vimlesh enticed his daughter through Prem, whereas as per the prosecution story, the prosecutrix was brought to the police station by Vimlesh and called the informant to reach the police station but at no point of time Vimlesh Pradhan was examined by the prosecution. How it could be believed that the person who is keeping enmity with the informant could come alongwith the prosecutrix i.e. daughter of the informant to the police station and intimate the informant and roped his friend Prem, who is accused in the present case specially when the case of the informant is that on the directions of the Vimlesh Pradhan, Prem had took his daughter.

13. The trial court has further observed that on the very same day the medical examination of the 'X' (prosecutrix) was conducted, in which neither any internal nor any external injury was found and no sperm has been found in the vaginal smear and pregnancy test reported was negative. The hymen was old torn and healed.

14. PW.3 Dr. Smita Singh -Medical Officer in her deposition has stated that no sign of rape has been found. The hymen was old torn and healed. The hymen healed within 15 days. She has specifically opined that she has not found any violence marks on the body of the prosecutrix. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out.

15. Learned A.G.A. assailed the judgement of the trial court and submitted that :

i. The judgement of the trial court is against the evidence produced by the prosecution, all the accused persons are guilty beyond any reasonable doubt and the offence is proved.

ii. The prosecutrix was forcibly took by gagging by all the four accused persons to an unknown place and outraged her modesty for four days.

iii. The trial court has taken into consideration that the minor contradictions in the statements / depositions of the prosecutrix, which have been at different stages, which is not proper.

iv. For an offence of rape, motive is not necessary. The trial court has acquitted the accused persons on the basis of surmises and conjecture.

16. After hearing the learned A.G.A. and as per the settled law that in an appeal against the acquittal the Court has to examine the evidence keeping in mind that accused has been found not guilt by the trial court which gives force to the principle that accused is considered innocent until proved guilty, beyond reasonable doubt except where the law provides otherwise.

17. Hon'ble Apex Court in the case of Achhar Singh Vs. State of Homachal Pradesh reported in 2021 SCC Online HP 870 in this regard has laid down as under:

"13. It is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty, for criminal accusations can be hurled at anyone without him being a criminal. The suspect is therefore considered to be innocent in the interregnum between accusation and judgment. History reveals that the burden on the accuser to prove the guilt of the Accused has its roots in ancient times. The Babylonian Code of Hammurabi (1792-1750 B.C.), one of the oldest written codes of law put the burden of proof on the accuser. Roman Law coined the principle of actori incumbit (onus) probatio (the burden of proof weighs on the Plaintiff) i.e., presumed innocence of the Accused. In Woolmington v. Director of Public Prosecutions [1935] AC 462 (HL), the House of Lords held that the duty of the prosecution to prove the prisoner's guilt was the "golden thread" throughout the web of English Criminal Law. Today, Article 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights all mandate presumption of innocence of the Accused.

14. A characteristic feature of Common Law Criminal Jurisprudence in India is also that an Accused must be presumed to be innocent till the contrary is proved. It is obligatory on the prosecution to establish the guilt of the Accused save where the presumption of innocence has been statutorily dispensed with, for example, Under Section 113-B of the Evidence Act, 1872. Regardless thereto, the 'Right of Silence' guaranteed Under Article 20(3) of the Constitution is one of the facets of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure, 1973 amplifies that the presumption of innocence, until the Accused is proved to be guilty, is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent Court analyses the material evidence, examines witnesses and acquits the Accused. Keeping this cardinal principle of invaluable rights in mind, the appellate Courts have evolved a self-restraint policy whereunder, when two reasonable and possible views arise, the one favourable to the Accused is adopted while respecting the trial Court's proximity to the witnesses and direct interaction with evidence. In such cases, interference is not thrusted unless perversity is detected in the decision-making process.

15. It is thus a well crystallized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal Under Section 378 Code of Criminal Procedure are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal1. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka (2007) 4 SCC 415, p. 42, State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582, p. 20-21 and Raveen Kumar v. State of Himachal Pradesh, 2020 SCC Online SC 869, 11.) that the Code of Criminal Procedure does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the Accused."

18. In Chaman Lal Vs. The State of Himachal Pradesh reported in 2020 SCC online SC 988, the Hon'ble Apex Court in this regard has expressed the similar views.

19. Now in the present case having examined the rationale behind the conclusion arrived at by the trial court while acquitting the accused persons after analyzing the judgement and evidence available on record, it appears that the contentions of the learned A.G.A. have no force for the reason that the F.I.R. has been lodged with the delay of four days without explaining the reason for the same, particularly when the informant on the very next day in the morning came to know about the persons behind the offence alleged in the F.I.R. Neither in the F.I.R. nor in the statement, the informant had ever taken the name of a person from whom he came to know that her daughter was taken away by the present accused persons.

20. There are contradictions in the statements / deposition of the prosecutrix recorded under Section 164 Cr.P.C., in her examination-in-chief and her cross-examinations, at all the stages she came with a different story. At one place, she has stated that she was kidnapped by three accused persons namely, Prem, Ramteerth and Rameshwar, but at other place she came with a story that Prem called her while she was sleeping. At one place she has stated that Rameshwar took her at his motorcycle to an unknown place and at other place she has come with a case that Prem, Rameshwar and Ramteerth took her on their motorcycle and Parmeshwar joined them later on, but how it can be possible that four persons had gone on one motorcycle. At one place, she has come with a case that all had come to her house and gagged her and took her from terrace and when reached outside the village, there Parmeshwar came with a motorcycle. It is also unbelievable that she was sleeping alongwith her mother, brother and sister but instead of waking them, she tried to wake up her father who was sleeping in the courtyard when Prem had called her. At one place, she has stated that Prem had asked her let us go for a ride to his Jijaji's place. At one place, she has stated that she reached terrace by using staircase of her house, whereas no stairs were shown in site plan prepared by the Investigating Officer Ext. Ka-6.

21. From the medical examination report of the prosecutrix and the statement of the PW.3 Dr. Smita Singh, the offence of outraging the modesty of the prosecutrix has not been found, as the medical examination of the prosecutrix was conducted on the very same day of her recovery and as per her statement she was raped by four persons from last four days, then somthing should have come in the medical examination report, but nothing in the medical examination report, so the ocular evidence of the prosecutrix does not corroborate with the medical evidence.

22. The Hon'ble Apex Court in the case of Batcu Venkateshwarlu and others Vs. Public Prosecutor High Court of Andhra Pradesh reported in (2008) 16 SCC 256 has held as under: -

"12. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be uilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court."

23. The Hon'ble Supreme Court in its judgement dated 14.02.2020 passed in Criminal Appeal No.264 of 2020, arising out of SLP (Criminal) No.3780/2018; Santosh Prasad @ Santosh Kumar vs. The State of Bihar, has held that it cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy.

24. The Hon'ble Supreme Court in the case of Rajoo and others vs. State of Madhya Pradesh (2008) 15 SCC 133 has held as under:

" 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants,but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

12. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."

25. In the case of Rai Sandeep @ Deepu Vs. State (NCT of Delhi) (2012) 8 SCC 21, Hon'ble Supreme Court has held as under:

"22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

26. Having gone through the evidence and considered the deposition of the prosecutrix, we find that there are material contradictions and change of the version by the prosecutrix at every stage, made the evidence of prosecutrix unreliable and untrustworthy. In these circumstances the deposition / evidence of prosecutrix does not inspire the confidence to place implicit reliance to act on its basis to record the conviction of the respondents.

27. In the light of the above discussions and the principles of law laid down by the Hon'ble Apex Court cited above, there is no perversity and reasonable ground to interfere with the acquittal recorded by the trial court.

28. Hence the application for leave to appeal against the acquittal moved under Section 378(3) Cr.P.C. is rejected, therefore no order requires to be passed on the memo of appeal filed alongwith the application to grant leave to file the appeal.

				(Manish Kumar,J.)     (Ramesh Sinha,J.)
 
Order Date :- 6.9.2021
 
S. Kumar