Sumer vs State Of U.P.
2022 Latest Caselaw 8187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 91
 
Case :- CRIMINAL APPEAL No. - 2233 of 1982
 
Appellant :- Sumer
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Viresh Misra,Abhilasha Singh,Anwar Hussain
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. The present criminal appeal under Section 374(2) Cr.P.C. has been filed by the appellant Sumer against the judgement and order dated 2.9.1982 passed by IInd Additional Sessions Judge, Aligarh, in Session Trial No. 128 of 1982, State vs. Sumer, under Section 376 I.P.C., P.S.- Gangiri, District Aligarh, by which he has been convicted and sentenced under Section 376 I.P.C. to three years rigorous imprisonment.

2. 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.

3. The prosecution case as per the G.D. report dated 1.3.1980, is that on 1.3.1980 Megh Singh (P.W.-1) got a report lodged, scribed by Lala Ram Vimal, alleging therein that he had gone outside his village on 29.2.1980 for some work and his son Narain had also gone out in connection with his profession, leaving the ladies being the wives of both persons at the house. Smt. Budhiya the wife of the first informant and ''X' the victim who is the daughter-in-law of the first informant were present in the house. At about 3.00 p.m. the victim ''X' had gone to ease herself in the wheat field of Natthu who is resident of village Naugawan, District Aligarh, wherein the appellant who is also the resident of same village and is Yadav by caste, reached there from his nearby field, caught hold of the victim ''X' from back side and committed rape on her. She raised hue and cry, on which Mohar Pal (P.W.-2), Raghubir and his brother Dhani Ram reached the place of occurrence, who were seen by the accused, he then went of running from the field. When the first informant came back to his house he was then told about the incident by the victim ''X'. In the evening whole village was surrounded by the persons of Yadav community and as such he could not go to lodge a First Information Report. Next day in the morning at about 7.15 a.m. he got the First Information Report lodged. The original of the said F.I.R. is not available on record. The same was lodged as Case Crime No. 21 of 1980, under Section 376 I.P.C. at Police Station Gangiri, District Aligarh.

4. The victim ''X' was medically examined by the doctor on 1.3.1980 at about 4.30 p.m. The doctor referred her to radiological department and also sent her vaginal smear to pathological department. She did not find any injury both external and internal on her body. A supplementary medical report was prepared by the doctor on 11.3.1980 in which opinion of the doctor was that she is running a pregnancy of about six months and no definite opinion can be given about rape and she is accustomed to intercourse. She was opined to be aged about 17 years. The doctor was not examined in the trial as the genuineness of medical examination report and the supplementary medical examination report were admitted under Section 294 Cr.P.C. and hence formal proof of the same was dispensed with, for which learned counsel appearing for the accused in the trial made an endorsement dated 31.8.1982 in the same.

5. The investigation concluded and charge sheet no. 16 dated 16.3.1980 was submitted under Section 376 I.P.C. against the appellant. The same is Ex. Ka-6 to the records.

6. Subsequently vide order dated 28.6.1982 passed by IInd Additional Sessions Judge, Aligarh charge under Section 376 I.P.C. was framed against the appellant who pleaded not guilty and claimed to be tried.

7. In the trial Megh Singh was produced and examined as P.W.-1 who is informant of the case and father-in-law of the victim ''X', Mohar Pal was produced and examined as P.W.-2 who claims himself to be an eye witness of the incident, the victim ''X' was produced and examined as P.W.-3 and Rishi Pal was produced and examined as P.W.-4 who was the investigating officer of the case.

8. The accused under Section 313 Cr.P.C. denied the incident and stated to have been falsely implicated in the present case due to village party-bandi as he states that he was to contest elections of village Pradhan and in an attempt to oust him from it, he has been falsely implicated due to enmity with collaterals. The trial court after going through the evidence convicted the appellant as stated above against which the present appeal has been preferred.

9. Heard Ms. Abhilasha Singh, learned counsel for the appellant, Sri Sanjay Kumar Singh, learned Additional Government Advocate for the State of U.P. and perused the material on record.

10. Learned counsel for the appellant argued that medical evidence does not corroborate with the prosecution case. In the alleged medical examination the doctor did not find any injury on her person either externally or on her internal parts. It is argued that the accused has pleaded false implication and the same has been specific in his statement under Section 313 Cr.P.C. also which was the reason for his false implication as he was contesting elections of village Pradhan and as such his collaterals under conspiracy with others falsely implicated him. It is argued that the prosecutrix in her cross-examination has stated that when the appellant caught hold of her from back side, she raised hue and cry on which Mohar Pal, Raghubir and his brother Dhani Ram reached there after which the accused ran away and the said incident took place for about a minute only and as such the story of rape being committed on the victim ''X' was a false story and in between there was no description given by the prosecutrix about rape being committed on her. It is further argued that Raghubir who has also alleged to have reached the place of occurrence with Mohar Pal (P.W.-2) has not been produced and examined as a witness before the trial court. It is next argued that although the investigating officer has recovered a ''petticot' allegedly worn by the victim ''X' at the time of incident but there is no report of serologist to corroborate any act of rape being committed on her. It is argued that as such implication of the appellant is false. The appellant deserves to be acquitted of the charge levelled against him.

11. While rebutting the arguments learned State counsel vehemently argued that the appellant is named in the F.I.R. There are specific allegations against him for committing rape upon the victim who is daughter-in-law of the first informant. It is argued that although the F.I.R. was lodged on the next date of the incident but there is sufficient and justifiable reason mentioned in the same with regards to reason for lodging of the F.I.R. on the next date. It is argued that the prosecutrix has also named the appellant and has stated that he committed rape on her. It is argued that the prosecution has proved the case beyond reasonable doubt and as such the present appeal deserves to be dismissed.

12. P.W.-1 Megh Singh is the first informant and father-in-law of the prosecutrix. He states that he had gone outside and his wife and daughter-in-law were at the house. In the evening when he came back to his house, his daughter-in-law and son came crying to him on which he asked the reason and then they stated that they have been tortured. The story which was narrated by them was then got transcribed by Lala Ram at the crossing. He then affixed thumb impression on the same and went to the police station and lodged the F.I.R. Due to fear of the persons of Yadav community he did not go in the night to the police station.

13. P.W.-2 Mohar Pal states that on the day of incident in the evening he was going towards his wheat field and as soon as he reached near a pond he heard shirks of someone. On hearing it he reached the field of Natthu. When reached there Dhani Ram was coming from the front and Raghubir was also going. He saw the plants of wheat broken and the accused Sumer was going. When he reached there the victim ''X' had also left for her house. He then left the place of occurrence and went to his house. In the evening some persons armed with lathi and ballam went to the house of Megh Singh.

14. The victim ''X' was produced and examined as P.W.-3. She states of the incident as narrated in the F.I.R. She states of the appellant committing rape upon her. She states that she went to the field to ease herself where the appellant caught hold of her from behind and then committed rape on her. She raised hue and cry. On hearing it Mohar Pal and Raghubir reached there. On seeing them the accused ran away. Her bangles got broken, then she came back to her house. She then told about the incident to her mother-in-law. When her father-in-law came back, her mother-in-law told her father-in-law about the incident who stated to go to the police station and lodge a F.I.R. but since the house was surrounded by Yadav community out of fear they did not go to the police station to lodge the F.I.R. As soon as they got time they went to the police station and after getting the report transcribed at the crossing got it registered. In her cross-examination she stated that she was having upset stomach. She states that her medical examination was conducted. She further states that she had shown the injuries received by her and also told the fact to the doctor that blood had come out from her mouth. She had fallen on the ground and wheat crops had broken. The wheat crops had caused injuries on her body. She was having pregnancy at that time. She states that when the accused sat on her stomach she felt pain but there was no injury. She further states that as soon as the accused/Sumer caught her, she raised hue and cry on which the witnesses came and as soon as the witnesses came, the accused left her and ran away. The entire episode took about a minute. She denies the fact that the accused did not commit rape on her and she is falsely implicating him on being tutored.

15. P.W.-4 Rishi Pal is the investigating officer of the matter. He took up the investigation and then recovered broken bangles from the place of occurrence of which recovery memo was prepared which is Ex. Ka-4 to the records. He prepared the site plan of the place of occurrence which was marked as Ex. Ka-3. He concluded investigation and submitted charge sheet against the appellant which is Ex. Ka-5 to the records.

16. As per prosecution case the appellant is stated to have committed rape upon the prosecutrix while she was at the field to ease herself after catching her from behind and throwing her on the wheat plant which got broken. On hue and cry of the prosecutrix it is stated that P.W.-2 Mohar Pal and two other persons who were not produced and examined as witness, reached at the place of occurrence who are stated to be eye witness. The statement of Mohar Pal does not in any manner show that he was an eye witness to the incident though he states to have reached at the place of occurrence and at that time the prosecutrix had left the place and gone to her house and similarly the appellant had also left the place of occurrence when he reached at that place.

17. In so far as the F.I.R. is concerned the same has been lodged on the next date of the incident. The incident is alleged to have taken place on 29.2.1980 at 3.00 p.m. but the F.I.R. was lodged on 01.3.1980 at about 7.15 a.m. The prosecutrix states of her receiving injuries on her body from the broken plants of wheat but the doctor did not find any bodily injuries on her person. Even the doctor was not sure of any opinion with regards to rape being committed on her and as such no opinion was given by the doctor with regards to rape being committed on her. In the cross-examination she states of the accused caught hold of her from behind after which she raised hue and cry and then the alleged witnesses came there and then the accused-appellant ran away from the place of occurrence. The entire episode took only a minute and at that point of time there was no version of her being raped. She was carrying a pregnancy of six months as has been mentioned in the medical examination report, but even then she has not received any injury whatsoever. There is no corroboration of rape through the ''Petticot' which has been recovered with regards to the alleged incident and there is no report of any expert which would corroborate the incident.

18. Looking to the facts and circumstances of the case, the appeal is allowed. The judgement and order dated 2.9.1982 passed by IInd Additional Sessions Judge, Aligarh, in Session Trial No. 128 of 1982, State vs. Sumer, under Section 376 I.P.C., P.S.- Gangiri, District Aligarh is hereby set aside.

19. The appellant is acquitted of the charge levelled against him. The appellant is on bail. His bail bond is cancelled and sureties discharged.

20. 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 :- 27.7.2022

Naresh