Harihar Yadav vs State Of U.P. And 2 Others
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Allahabad High Court

Harihar Yadav vs State Of U.P. And 2 Others on 18 December, 2023

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


1
 
Neutral Citation No. - 2023:AHC:240385-DB
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 35 of 2021
 
Appellant :- Harihar Yadav
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Vivek Yadav,Amish Yadav,Ramesh Chandra Yadav
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Manish Kumar Nigam,J.

1. The present appeal has been preferred by the accused appellant against the judgment and order of conviction and sentence dated 8.12.2020, passed by the Special Judge (POCSO) - 01, District - Ghazipur in Session Trial No. 116 of 2017 (State vs. Harihar Yadav), arising out of Case Crime No.500 of 2017, Police Station - Karanda, District - Ghazipur, whereby the accused appellant has been convicted and sentenced to life imprisonment under section 376 IPC read with section 3/4 POCSO Act with fine of Rs.1,00,000/- and in default of payment of fine he is to further undergo one year additional imprisonment.

2. Prosecution case proceeds on a written report (Ex.Ka.1) of the informant (PW-1), who happens to be the mother of the victim. As per the informant, her minor daughter aged 11 years (victim) had gone to the fields for grazing goats when the accused came; caught her and committed sexual assault upon her. When the victim returned home, she was bleeding from her private parts and on enquiry by the informant she disclosed such facts to her mother. On the basis of such written report First Information Report came to be registered as Case Crime No. 500 of 2017 on 27.9.2017 at 02.45 am in respect of the incident taken place on 26.09.2017 at 05.00 pm.

3. Investigation proceeded in which statement of victim was recorded u/s 161 Cr.P.C., wherein she has specifically implicated the accused appellant. Statement of the victim was also recorded under Section 164 Cr.P.C. wherein she has also supported the prosecution case as per which the accused appellant inserted towel (gamchha) in the mouth of the victim and also tied her hands.

4. The victim was taken to the hospital where she was medically examined on 27.9.2017 itself. The doctor found no external injury on the victim. However, in the internal examination of the victim, the doctor found presence of vaginal bleeding. Hymen of the victim was found torned and lacerated. The victim also complained of abdomen pain. No other injury, however, was found on the victim.

5. During the course of investigation, the Investigating Officer recovered the clothes worn by the victim as also the bloodstains on it. The undergarments of accused appellant were also recovered by the Investigating Officer. On the basis of such material collected during the course of investigation, a charge-sheet came to be submitted against the accused appellant under sections 376 IPC read with section 3/4 POCSO Act. The concerned court took cognizance on the charge-sheet and framed charges against the accused appellant under section 376 IPC read with section 3/4 POCSO Act. The contents of the charges were read out to the accused appellant, who denied the charges and demanded trial.

6. During the course of trial, the informant has appeared as PW-1 and has supported the incident of sexual assault. However, in the cross-examination, she did not support the implication of the accused appellant and has stated that someone came from behind and covered the face of victim on account of which she could not see the accused. Similarly, PW-2 (victim) has also turned hostile and has stated that she has not been able to identify the author of crime. PW-3, who happens to be the father of victim, has also turned hostile.

7. Perusal of the records would go to show that three witnesses of fact have not supported the prosecution case.

8. PW-4 is the Head Constable, who has made G.D. entry as also the chik FIR. PW-5 is the doctor, who examined the victim on 27.9.2017 and has also proved the medico legal report. Injury was found on the private part of the victim and it was possible that the hymen may have been torned due to other injuries. PW-6 is the Investigating Officer, who submitted charge-sheet in the matter.

9. The incriminating material placed on record by the prosecution has been confronted to the accused appellant for recording his statement under section 313 Cr.P.C. The circumstances highlighted to the accused appellant have been put in a very casual manner and making of statement by the witnesses alone has been confronted to the accused appellant. The trial court, on the basis of evidence on record, has convicted the accused appellant vide impugned judgment and order of conviction after returning a finding that the prosecution has succeeded in proving the guilt of the accused appellant beyond reasonable doubts. Thus aggrieved, the accused appellant is before this Court.

10. Shri R. C. Yadav, learned counsel appearing for the accused appellant states that the accused appellant has been falsely implicated in the present case and that charges have not been established against the accused appellant beyond reasonable doubt. Learned counsel further submits that all three witnesses of fact have turned hostile. It is also submitted that injury on the private part of the victim could have been caused in some other manner and the implication on accused cannot be sustained when the victim herself has not supported the prosecution case. Learned counsel also submits that neither the medico legal report has been specifically confronted to the accused appellant nor he has been given any opportunity to come up with his explanation with reference to such evidence and, therefore, such evidence cannot be read or relied upon against the accused appellant. It is also submitted that the accused appellant has already undergone incarceration of nearly five years and has no criminal history otherwise. It is also submitted that appellant was around 62 years of age and is now nearly 70 years old.

11. Learned A.G.A. for the State, on the other hand, contends that the victim had specifically implicated the accused appellant in her statements under sections 161 & 164 Cr.P.C, which finds clear corroboration from the medico-legal report. It is also submitted that the victim is a minor girl and, therefore, the conviction and sentence of the accused appellant merits no interference. It is also stated that merely because for some extraneous reasons, the prosecution witnesses of fact have been win-over by the accused appellant, the guilt established, otherwise, cannot go unpunished.

12. We have heard learned counsel for the parties and have perused the materials brought on record, including the original records of the trial court.

13. The incident in the facts of the present case has been reported on the very next day inasmuch as the First Information Report has been lodged on 27.9.2017 at 02.45 am, in respect of the incident occurred on 26.9.2017 at 05.00 pm. Some delay in lodging the First Information Report in respect of sexual offence otherwise cannot be viewed with any seriousness. The victim in her testimony under sections 161 & 164 Cr.P.C. has clearly implicated the accused appellant.

14. However, during the course of trial, all witnesses of fact have turned hostile. So far as implication of the accused appellant for committing the offence is concerned, all witnesses of fact have stated that accused could not be recognized as the eyes of the victim were covered by the accused who came from behind.

15. The medico-legal report is an important document in the facts of the present case, which clearly lends support to the prosecution case. The medical examination of the victim has been conducted on 27.9.2017. Such document has also been proved by the prosecution witness. The doctor has clearly noticed that while the victim had gone in the agricultural field, she was apprehended by the accused appellant, who is the resident of the same village and had grabbed her for sexual assault. No mark of external injury was found on the victim. However, the doctor on the internal examination of the victim made following comments:-

- vaginal bleeding present.

- Hymen torn and lacerated.

- Perineum intact

- Pain abdomen

16. The medico-legal report has also been proved by PW-5. We find some substance in the argument advanced on behalf of the State that the medico-legal report since supported the prosecution case and the victim had otherwise implicated the accused appellant under sections 161 & 164 Cr.P.C., and the victim otherwise had implicated the accused even before the doctor as such the guilt of accused is substantiated. However, these material can be relied upon against the accused-appellant only if the medical report was specifically confronted to the accused appellant for recording his explanation u/s 313 Cr.P.C. We find that the incriminating material in the nature of the medico-legal report or the testimony of the victim under sections 161 & 164 Cr.P.C. have not been specifically confronted to the accused appellant. Question No.6, which is the only relevant question put to the accused appellant is as under:-

"प्रश्न-6 क्या आपने अभियोजन साक्षी पी०डब्लू०-5 डा० प्रियंका राय का बयान सुना। इस साक्षी ने पीड़िता की मेडिकल रिपोर्ट, पूरक रिपोर्ट व डी०एन०ए० हेतु प्रपत्र तैयार किया जिन पर क्रमशः प्रदर्श क-5, प्रदर्श क-6 डाला गया। इस सम्बन्ध में आपको क्या कहना है?

उत्तर- ऑपचारिक साक्ष्य दिये हैं।"

17. Neither the medico-legal report nor the testimony of victim under sections 161 & 164 Cr.P.C. has been put to the accused appellant. Unless the accused-appellant is confronted with such material, the court below could not have relied upon such material to implicate the accused appellant. Law with regard to recording of statement under section 313 Cr.P.C. has been clarified in a series of judgments. It has been held that recording of statement under section 313 Cr.P.C. confers an important right upon the accused appellant to explain his innocence with reference to the evidence led during trial against him. Such proceedings cannot be conducted casually. The material, which has not been confronted to the accused appellant u/s 313 Cr.P.C., cannot be relied upon against the accused appellant. In the facts of the present case, we find that the relevant material in the form of medico-legal report has not been confronted to the accused appellant. The victim otherwise has turned hostile. Doctor has also opined that injuries on the private part could have been caused to the victim for other reasons. In such circumstances, we find that as the prosecution witnesses have turned hostile and the material which could have been relied upon against the accused appellant since has not been confronted to him for recording his statement under section 313 Cr.P.C., as such, no legally admissible evidence survives on record, on the basis of which, the conviction and sentence of the accused appellant could be sustained.

18. We have also perused the judgment of the conviction and sentence, which clearly omits to consider the aforesaid aspects. The court below though has relied upon the statement of the accused under section 313 Cr.P.C. but the fact that material evidence in the form of medico legal report was not confronted to the accused appellant has clearly been omitted from consideration.

19. Section 29 of the POCSO Act has also been relied upon by the Court below but the court below has overlooked the fact that presumption under section 29 of the Act is a rebuttable presumption and once the victim herself has not supported the prosecution case, and other evidence are not legally admissible against the accused appellant, the presumption ipso facto would not justify the conviction and sentence of the accused appellant.

20. For all reasons enumerated above, we find that the accused appellant is clearly entitled to the benefit of doubt and his conviction and sentence cannot be sustained.

21. Consequently, the appeal succeeds and is stands allowed. The judgment and order of conviction and sentence dated 8.12.2020 is hereby set aside. The accused-appellant is acquitted of the charges levelled against him. Since the appellant is on bail, his bail bonds and sureties shall stand discharged, subject to compliance of Section 437A Cr.P.C.

Order Date :- 18.12.2023

Rishabh