Prem Pal Singh And Others vs State Of U.P.
2022 Latest Caselaw 9789 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 91
 
Case :- CRIMINAL APPEAL No. - 993 of 1981
 
Appellant :- Prem Pal Singh And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- A.P. Saxena,A.P.Srivastava,A.P.Tiwari,Chandra Jeet Singh,J.S.Tomar,Mithilesh Kumar Tewari,R.S.Tripathi,S.Tomar
 
Counsel for Respondent :- Govt. Advocate
 
With
 
Case :- CRIMINAL APPEAL No. - 1014 of 1981
 

 
Appellant :- Jahuri Alias Kanishak Pal Singh
 
Respondent :- State
 
Counsel for Appellant :- K.R.Singh,Suved Kumar Sharma (Ac)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. These two appeals filed by the appellants arise out of same judgment and order of conviction and sentence, are connected together and therefore both appeals are being heard and decided together by this common order.

2. Heard Sri R.S. Tripathi, learned counsel for the appellant no. 1/Prem Pal Singh and also as an Amicus Curiae for the appellant Jahuri @Kanishak Pal Singh in Criminal Appeal No. 1014 of 1981, Sri B.B. Upadhyay, learned Additional Government Advocate for the State of U.P. and perused the records.

3. Name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgements and Section 228 of the Indian Penal Code. She is, thus, referred to as ''X' in the judgement.

4. Criminal Appeal No. 993 of 1981 in so far as the appellant no. 2/Birendar is concerned, stands abated vide order dated 17.2.2016 passed by a co-ordinate Bench of this Court.

5. By means of these Criminal Appeals under Section 374(2) Cr.P.C. the appellants Prem Pal Singh, Birendar and Jahuri @Kanishak Pal Singh have challenged the impugned judgement and order dated 23.1.1981 passed by Vth Additional District and Sessions Judge, Budaun in Session Trial No. 413 of 1979, by which they been convicted and sentenced under Section 376 I.P.C. for five years rigorous imprisonment.

6. The prosecution case as per oral report of the victim ''X' she is daughter of Mohammad Jan and belongs to Teli by caste, residing in village- Baripura which falls within Police Station Wazirganj, District- Budaun. Yesterday at about 6.00 p.m. she went to her maize field to guard it where Prem Pal Singh of her village, Birendra Singh and Jahuri came and caught hold of her together and threw her on the ground. Prem Pal Singh flashed a knife on her and gagged her mouth and threatened her of life and stated that if she raises shout he will murder her. She got frightened. Birendar broke the string of her clothes of waist and tried to commit rape on her. Jahuri caught hold of both her legs and immobilized her, after which due to fear she did not raise shout. Birendar Singh committed rape on her after which Prem Pal Singh and then Jahuri in the last committed rape on her. While Jahuri was doing the act, her father came to the place of occurrence and shouted for her on which the said three persons left her and ran away. They were seen by her father, Hari Bhajan Singh and Chhotey who tried to apprehend them but they ran away. She then told of the incident to her father. As it was late night she could not come, but today she has come with her father to lodge a report. Her report be lodged and appropriate legal action be taken. The same was read to her which she verified and then put her thumb impression. The distance between the place of occurrence and the police station was 7 miles. The chik F.I.R. is Ex. Ka- 1 to the records.

7. The victim ''X' was medically examined by Dr Meera Singh on 28.8.1989 at about 9.00 a.m. The doctor noted her findings as follows :-

"No mark of violence on any part of body.

Hymen torn and represented in the form of old tags. Uterus admits two fingers. Ut. Normal size. OS close."

A vaginal smear was taken and she was referred for X-ray for ascertainment of her age and the conclusion by the doctor was that she used to have sexual intercourse. The said medical examination report is Ex. Ka- 6 to the records.

The vaginal smear report did not find any sperm present. On the basis of X-ray report the victim ''X' was found to be above 18 years. The supplementary report is Ex. Ka-8 to the records.

8. The investigation concluded and a charge sheet no. 153 dated 06.9.1979 was filed against the accused Prem Pal Singh, Birendra Singh and Jahuri @ Kanishk Pal Singh, under Section 376 I.P.C. The same is Ex. Ka-5 to the records.

9. Vide order dated 6.5.1980 passed by the Vth Additional Sessions Judge, Budaun, charge was framed under Section 376 I.P.C. against all the accused.

All the accused denied the charges and claimed to be tried.

10. Learned counsel for the appellants argued that the appellants have been falsely implicated in the present case. It is argued that although as per the prosecution case three persons are alleged to have committed rape upon the victim ''X' but the medical evidence does not corroborate with the prosecution story. The doctor did not find any mark of violence on her external part of body. In so far as the internal part is concerned there was no injury found and opinion of the doctor was that she is used to sexual intercourse. The victim ''X' as per the radiological report was opined to be above 18 years of age as stated in the supplementary report. The pathological report with regards to vaginal smear was found to be negative and no spermatozoa was found. Learned counsel further argued that the F.I.R. which is an oral report, has been lodged after an unexplained delay of about 20 hours. It is further argued that although ''Shalwar' of the victim ''X' was taken by the Investigating Officer for which she is alleged to have worn at the time of incident but the same was not sent for analysis to the chemical examiner by the Investigating Officer who is P.W.-5 Vijipal Singh who in his statement in court stated that he had not sent ''Salwar' to the chemical examination and he is unable to state any reason for the same. It is argued that in the F.I.R. Mohammad Jan father of the vicim, Hari Bhajan and Chhotey are alleged to be the eye witnesses but Chhotey has not been produced and examined as a prosecution witness. It is argued that in so far as the accused are concerned, they have in their statements under Section 313 Cr.P.C. given a cogent reason for their false implication. It is argued that implication of the appellants is on the basis of malafide intentions and there is no corroboration of the allegation from any cogent evidence. It is further argued that although it is stated that at the place of occurrence some plants of maize were broken but site plan of the place of occurrence does not show any such plants to be broken which were stated to have been found by the Investigating Officer and as such the same is an improvement just to falsely implicate the appellants. It is argued that the side from where the alleged witnesses were coming, was the same route taken by the accused persons to run away as is evident from the statement of P.W.-2 Mohammad Jan and even from the site plan and as such running of the accused persons and their not being apprehended, was not possible. It is argued that looking to the same the present appeal deserves to be allowed and the impugned judgement and order of conviction deserved to be set aside.

11. Per contra, learned Additional Government Advocate while replying to the arguments of learned counsel for the appellants, argued that the prosecution case in so far as the allegation of rape is concerned, is consistent. It is argued that P.W.-2 Mohammad Jan who is father of the victim ''X' in his testimony stated that when the accused persons tried to run away from the place of occurrence, he made an effort to chase and catch them but failed. It is argued that in so far as the medical evidence is concerned, the victim ''X' was married three years back and the victim ''X' in her statement stated that she was married and established physical relationship with her husband, and as such receiving no injury on her private parts, would be possible.

12. In the trial the prosecution examined the victim ''X' as P.W.-1, Mohammad Jan her father as P.W.-2, Hari Bhajan co-villager and alleged witness of the incident as P.W.-3, Head Constable Nawab Sher Khan as P.W.-4, Sub Inspector Vijaipal Singh as P.W.-5 and Dr. Meera Singh as P.W.-6.

13. The accused appellants in their statement under Section 313 Cr.P.C. denied the accusation levelled against them. Prem Pal Singh stated that he has enmity with Hari Bhajan Singh who has got the false case lodged, the accused Birendar Singh stated that he had a love affair with the victim ''X'. She initially did not wanted to depose anything against him up to 10.00 a.m. but later on under pressure she gave her statement. Her father demanded money and was ready to marry her with him on payment of money and on refusal by him to make any payment of money, he has been falsely implicated. Accused Jahuri @ Kanishka Pal Singh has stated that he had stated to the father that victim ''X' was of loose character and he should keep control over her. This annoyed him and as such he has been implicated in the case.

14. In defence Dina Nath was examined as D.W.-1 who is the Lakhpal of area Gargaima, under which village Baripura falls. He stated that in the said village there is no land which is recorded in the name of Battu Lal.

15. The trial court after considering the entire evidence on record and considering the same came to a conclusion that the case against the accused has been proved beyond reasonable doubt and the testimony of D.W.-1 is of no avail to the accused and hence convicted them as aforesaid.

16. P.W.-1 the victim ''X' corroborated the version given by her orally to the police on the basis of which the present F.I.R. has been lodged. She states that her Shalwar got stained because of the said act. In her cross-examination she states that at the time of incident she was married around three years ago. Her husband is aged about 19 years. She states that the field is situated at about 8-10 steps from the village. Maize was sown in the fields and everyone used to guard their fields. She states that the accused persons after throwing her on the ground dragged her to about 8-10 steps. She further states that witness Chhotey is her relative. She denies the suggestion that she is having an illicit relationship with the accused Birendar and her father had seen her talking to Birendra while she was sitting in his lap, after which the present F.I.R. was lodged.

17. P.W.-2 Mohammad Jan who is the father of the victim ''X' states that he had taken the field of Battu Lal on sharing basis in which crops of maize and arhar were standing. He also corroborates the prosecution version as stated in the F.I.R. He further states that his daughter was married around four years back. In his cross-examination he states that he had dropped his daughter to the field after which he had came back to fed his meal and then after about an hour he again went there. Chhotey was cutting the grass and Haribhajan was guarding his jwar field which was nearby. Haribhajan and Chhotey came from west and the accused persons also ran away in the same direction. To a suggestion that Birendar Singh has illicit relationship with his daughter, he denies. Further he denies the suggestion that he had demanded money for not lodging of report from the accused persons but on not getting the money false case has been lodged.

18. P.W.-3 Hari Bhajan is the alleged witness of incident. He states that on the day of incident he was in his field. The field of Battu Lal was taken on sharing basis by Mohammad Jan in which maize crops were sown. The accused ran from the field of Mohammad Jan who were chased by him but could not be apprehended. He then came to the field of Mohammad Jan where the victim ''X' told that three accused persons raped her.

19. Head Constable Nawab Sher Khan P.W.-4 transcribed the chik F.I.R. on the basis of oral version given by the victim ''X'. He proves the same. He further proves the recovery memo of Shalwar which was taken into possession by Harnam Singh before him.

20. S.I. Vijaipal Singh P.W.-5 is the Investigating Officer of the case who took up the investigation and concluded it by submitting charge sheet. In his cross-examination he stated that he did not send Shalwar to the chemical examiner. He states that he cannot tell the reason about the same. He further states that in the site plan he has not shown the broken crops in the field. He states that he had found broken crops in the field at place ''B' in the site plan. He was given a suggestion that there was no crop broken in the field to which he denies.

20. Dr. Meera Singh P.W.-6 was posted as Medical Officer, Women Hospital, Budaun. She medically examined the victim ''X' and gave her medical report. A supplementary medical report was given by her also. The details of the same have already been given above in the judgement.

21. After having heard learned counsels for the parties and perusing the records, it is evident that as per the prosecution case ''Shalwar' of the victim ''X' which was alleged to have been taken into custody by the Investigating Officer which was wearing at the time of incident, was not sent to chemical analyst for examination and as such corroboration of the incident from the same was not done. The victim ''X' was married about three years back. The First Information Report although is an oral report of the victim ''X' herself but the same has been lodged on 27.8.1979 at about 14.30 hours and the incident in the present case is of 26.8.1979 at about 6.00 P.M. and as such the same was delayed for which there is no explanation given by the prosecution. The Investigating Officer also in his cross-examination states that he has not mentioned of plants of maize found to be broken at the place of occurrence. The accused in their statement under Section 313 Cr.P.C. have given cogent reasons for their false implication. The accused Prem Pal Singh has stated that he has enmity with Hari Bhajan Singh who has got a false case lodged. The accused Jahuri @ Kanishka Pal Singh has stated that he asked the father of the victim ''X' not to report the matter and he had complaint of the victim of being loose character and had also told him of keeping her in control due to which he felt annoyed and then falsely implicated them in the case. The victim ''X' states that she was dragged in the field for 8-10 steps but the doctor did not find any external bodily injury on her. The evidence of D.W.-1 Dina Nath would go to show that the field where the incident is alleged to have taken place was not recorded in the name of Battu Lal. Looking to the overall situation the appellants Prem Pal Singh and Jahuri @ Kanishkapal Singh deserve to be extended the benefit of doubt.

22. Looking to the facts and circumstances of the case and in view of the above discussion the appeal is allowed in so far as it relates to the appellants Prem Pal Singh and Jahuri @ Kanishkapal Singh. The impugned judgement and order dated 23.1.1981 passed by Vth Additional District and Sessions Judge, Budaun in Session Trial No. 413 of 1979 is hereby set aside.

23. The appellants Prem Pal Singh and Jahuri @ Kanishkapal Singh are acquitted of the charge levelled against them. The appellants are on bail. Their bail bonds are cancelled and sureties discharged.

24. Sri R.S. Tripathi, learned Amicus Curiae who was appointed an Amicus Curiae vide order dated 26.7.2022 passed by this Court, assisted the Court in deciding the appeal of accused-appellant Jahuri @Kanishk Pal Singh.

25. Office is directed to pay a sum of Rs. 8,000/- for assistance of the Court to learned Amicus Curiae within two months from today.

26. Office is directed to transmit the copy of this judgement along with the lower court records to the court below forthwith for its compliance and necessary action.

(Samit Gopal,J.)

Order Date :- 10.8.2022

Naresh