State Of U.P. vs Devendra Kumar
2022 Latest Caselaw 657 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 49
 
Case :- GOVERNMENT APPEAL No. - 2229 of 1995
 
Appellant :- State of U.P.
 
Respondent :- Devendra Kumar
 
Counsel for Appellant :- A.G.A.
 
Counsel for Respondent :- Raghuvansh Chandra, Ram Jee Saxena, Rohit Kumar
 
Hon'ble Suneet Kumar,J.

Hon'ble Umesh Chandra Sharma,J.

1. Heard learned A.G.A. for the State and Shri Chandan Sharma, learned Advocate, assisted by Shri Raghuvansh Chandra, learned counsel for the accused-respondent and gone through the lower court record with assistance of the respective counsels.

2. The instant appeal has been filed against the judgment and order dated 31.08.1995 passed by learned Additional Sessions Judge, District- Ghaziabad in Sessions Trial No.692 of 1994, under Section 376 I.P.C. whereby, the accused-respondent has been acquitted.

3. As per the prosecution case, it is alleged that on 29.05.1994 at about 08:30 P.M., daughter of the informant, aged about 15 years, while returning home was dragged by the accused-respondent and thereafter offence of rape was committed; it is further alleged that on her screaming, Ran Singh, Charan Singh and several other resident villagers came on the spot; accused-respondent escaped in the jungle.

4. The prosecution to prove the charge, examined 07 witnesses, P.W.-1 Victim, P.W.-2 Ran Singh who claims to be eye-witness, was declared hostile, P.W.-3 Jai Pal/informant (father of the victim), P.W.-4 Charan Das, who claims to be eye-witness, was declared hostile, P.W.-5, Dr. Smt. Mamta who examined the prosecutrix, P.W.-6 and P.W.7 are the formal witnesses police officials.

5. The prosecution exhibited material documents being Exhibit Ka-1 to Ka-11 which includes the blood stained apparels of the victim. The accused-respondent on being confronted with the prosecution evidence and documentary material denied the allegation and submitted that he has been falsely implicated at behest of the owner of the brick klin; the owner had paid money to the father of the victim to falsely implicate the accused-respondent.

6. The trial Court upon cumulatively scrutinizing the prosecution evidence, was of the opinion that the prosecution failed to prove the charge against the accused-respondent beyond reasonable doubt. Accordingly, the accused-respondent, herein, came to be acquitted. Hence, the present appeal.

7. Learned State Counsel submits that Trial Court committed an error in not relying upon the sole testimony of the prosecutrix. The testimony of the prosecutrix being trustworthy, truthful and credible would qualify as a sterling witness. The victim in her testimony reiterated the prosecution version and in her cross-examination, she stated that after the incident she returned home and informed her father; thereafter, her father lodged the F.I.R. at 09:45 P.M.; she further stated that accused-respondent caught her from behind and dragged her, thereafter, committed the offence of rape; the entire incident lasted for approximately 10 minutes; she further stated that her mouth was gagged with a cloth; she stated that she recognized the accused-respondent. She further stated that she had earlier not indulged in sexual intercourse; at the time of the incident, she was not having menstrual bleeding; blood was easing from her private part after the incident. She further stated that accused-respondent forced himself upon her after dropping her on the ground, thus, the victim incurred injury on her right arm with the wrist watch of the accused-respondent.

8. P.W.-5 conducted the medical examination of the prosecutrix on the following day i.e. 31.05.1994 at 02:10 P.M. She opined that the injuries are simple in nature caused by blunt object, duration is 12-24 hours. On external examination, she noted contusion on the front of the forearm and on left elbow; contusion in front of the left forearm; contusion on ante part of right thigh. In internal examination, she found that the organs of the prosecutrix were well developed, there is no mark of laceration in the vagina; she was having menstrual bleeding. In her cross-examination, she categorically stated that at the time medical examination, the victim was having menstrual bleeding and there was no internal injury; the victim was habitual of sexual intercourse. In the opinion of P.W.-5, the injuries incurred on the external body could not have been caused by the forceful commission of rape.

9. In the backdrop of the testimony of the victim, the Trial Court was of the opinion that testimony of the victim cannot be relied upon blindly as it does not corroborate with the medical report and expert opinion. She categorically stated that she incurred injury on her right arm caused by the wrist watch of the accused-respondent, whereas, there was no such injury found on the right arm; further, the victim stated that before the incident, she had not indulged in any sexual intercourse and the injury sustained was due to rape, whereas, as per the medical report and expert opinion, the victim was having menstrual bleeding and in the opinion of P.W.-5, she had earlier indulged in sexual intercourse i.e. she was habitual. The Forensic Science Laboratory (F.S.L.) report upon examining the apparel of the victim was of the opinion that apparel had stains of blood which had disintegrated; no spermatozoa or stains of semen were found.

10. In the circumstances, testimony of the victim(P.W.-1) was not found to be trustworthy, truthful and credible as she declined of having menstrual bleeding and has not indulged in sexual act earlier. Learned counsel for the accused-respondent has placed reliance on the decisions rendered by the Supreme Court in Santosh Prasad Vs. The State of Bihar1 and Rai Sandeep Vs. State of NCT of Delhi2 . In Santosh Prasad (supra), the Court declined to rely upon the sole deposition of the prosecutrix relying, upon the medical examination report and the opinion of the medical expert. In Rai Sandeep(supra), Court was of the opinion that ''sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court upon 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 be relevant is the truthfulness of the statement made by such a witness. What would be relevant is the truthfulness of the statement made by such a witness. What 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. The witness should be in a position to withstand the cross-examination of any length and however, strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence.

11. Leaned counsel appearing for the State has placed reliance upon the decision rendered by Supreme Court in Phool Singh Vs. State of Madhya Pradesh3, wherein, the Court opined that conviction can be sustained on the sole testimony of the prosecutrix provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be sterling quality. There can be no dispute with the preposition of law, however, the prosecutrix has to qualify as a sterling witness.

12. The Trial Court has acquitted the accused-respondent relying upon the prosecution evidences, in appeal, the appellate Court on the same very evidence which has been duly relied upon by the trial Court would decline to arrive at a different opinion until perversity is writ large in appreciating the evidence and convicting the accused. If two opinions are possible based on the same cumulative evidence, the opinion of the Trial Court would prevail and the appellate Court refrain in interfering with the Trial Court opinion.

13. Learned Counsel for the State, on a specific query, admits that there is no element of perversity, the Trial Court after considering the material prosecution evidence and on cumulative secrutinty and analysis of the evidence has acquitted the accused-respondents.

14. Learned A.G.A. failed to point out any illegality, infirmity or perversity in the impugned judgment.

15. We are unable to persuade ourselves to take an opinion different from that of the learned trial court.

16. The leave to appeal application is, accordingly, rejected..

17. The appeal, in consequence, stands dismissed.

18. The office to sent back the Trial Court record.

Order Date:- 07.04.2022.

 
Sachin 
 
(Umesh Chandra Sharma,J)         (Suneet Kumar,J.)