State Of U.P. Thru. Prin. Secy. ... vs Ramesh Yadav And Another
2023 Latest Caselaw 4295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9
 

 
Case :- APPLICATION U/S 378 No. - 38 of 2023
 
Applicant :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lko.
 
Opposite Party :- Ramesh Yadav And Another
 
Counsel for Applicant :- G.A.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Brij Raj Singh,J.

This is an application filed by the State under section 378(3) of the Code of Criminal Procedure with the prayer to grant leave to file appeal against the judgment dated 16.11.2022 passed by the Additional Sessions Judge/F.T.C First, Faizabad, in Sessions Trial No.328 of 2018 which had arisen out of case crime no.351 of 2018, under section 376 of I.P.C., Police Station-Poorakalander, District-Ayodhya, whereby the respondent-Ramesh Yadav has been acquitted of the charge against him for the offence under section 376 of the Indian Penal Code.

The victim in this case submitted a written report on 22.07.2018 before the police station concerned for lodging the First Information Report stating therein that on 20.07.2018 she had gone to attend call of nature at 10.30 a.m. and suddenly the respondent committed rape on her and further that she somehow reached her home and became unconscious and thereafter her family members got her admitted in the district hospital from where she was discharged on the same day i.e. 20.07.2018 itself at 7.00 p.m. She also stated in the written report that on account of the incident which occurred on 20.07.2018 on the next day as well she was not in a position to narrate the incident and on 22.07.2018 when her family members made queries from her, she narrated the incident and accordingly she had gone along with her family members to the police station. On the basis of the said written report, F.I.R. was registered whereupon investigation was conducted and accordingly a charge-sheet was submitted against the respondent, who is the sole accused in this case, on 20.08.2018. Charge of an offence punishable under section 376 of I.P.C. was framed against the accused-respondent, who pleaded not guilty and claimed trial.

The prosecution produced three witnesses of fact, P.W.-1-Prosecutrix/victim, P.W.-3-R and P.W.-4-D (brother of the prosecutrix). The prosecution also included formal witnesses, namely, P.W.-4-Dr. Priyanka Jain, who had conducted the medical examination upon the person of the prosecutrix, P.W.-5-Head Moharir and P.W.-6-Sub Inspector. The prosecution also adduced documentary evidence, namely, the written report (Ext.Ka-1), statement of the prosecutrix under section 164 of Cr.P.C. (Ext.Ka-2), recovery memo (Ext.Ka-3), medical examination report (Ext. Ka-4), Chik First Information Report (Ext.Ka-5), G.D. Entry of registration of case (Ext.Ka-6), site plan (Ext.Ka-7) and charge-sheet (Ext.Ka-8). After conclusion of the evidence led by the prosecution, statement of the accused-respondent was recorded under section 313 of the Cr.P.C. where he stated that he had falsely been implicated in the case and further that the prosecution had relied upon on fabricated documents. The learned trial court after consideration of the entire evidence on record has concluded that the evidence of the prosecutrix-P.W.-1 is so full of major contradictions that it is not reliable on the basis of which the prosecution could be said to have proved guilt of the respondent-accused beyond reasonable doubt. Accordingly, the learned trial court has passed the judgment of acquittal which the State intends to challenge by filing an appeal and, hence, this application seeking leave of the Court.

We have heard learned State Counsel representing the State-appellant and have also perused the records available before us.

In order to prove its case, the prosecution, as observed above, produced three witnesses of fact, namely, P.W.-1-Prosecutrix/victim, P.W.-3-R and P.W.-4-D (brother of the victim). When we examine the evidence adduced by the prosecution in this case, what we find is that there are such gaps and lapses in the evidence of the prosecutrix that it will not be safe to convict the accused-respondent on that basis. The prosecutrix in her statement has stated that at her house there was a toilet and that her house is situated in a field and accordingly it has not been found to be believable by the learned trial court as to why at 10.30 a.m. in the day the prosecutrix would have gone 500 metres away on the other side of the village, though facility of toilet in her own house was available. The prosecution has utterly failed to explain such circumstances.

Similarly, it has also come in evidence that the alleged place of occurrence is situated about 500 metres away on the northern side of the village and the population of the villages is around 400-500 and the path leading from village to the place of occurrence goes through the village and accordingly no witness was produced who could testify that at the time of occurrence the prosecutrix had gone to the place of occurrence from her house through the village. The brother of the prosecutrix (P.W.-4) has also testified that in his house there existed a pukka latrine/toilet. In these circumstances, no explanation comes forth in this case as to why would the prosecutrix not use the latrine/toilet in the house and would go 500 metres away in a field at 10.30 a.m. in the day hours.

The prosecutrix in her statement has also stated in her cross-examination that there was a orchard adjacent to the place of occurrence on its southern side and in this orchard family of Gaya Prasad lives in a house, however, while returning from the place of occurrence though she on her own did not tell anything about the occurrence to the wife of Gaya Prasad, however, on her asking she narrated the incident to the wife of Gaya Prasad. Learned trial court has doubted the said statement of the prosecutrix giving the reason that in case statement of the prosecutrix is believed, it is the wife of the Gaya Prasad, who was the first person who was informed about the incident, however, neither during the course of investigation was she interrogated nor was her statement recorded either by the investigating officer or even during the course of trial before the court. Giving this reason as well, the learned trial court has not concluded that the evidence of the prosecutrix inspires confidence. There is yet another reason why the testimony of the prosecutrix does not appear to be truthful. The F.I.R., admittedly, was lodged with delay of two days. The prosecutrix in her statement before the court has stated that after the incident she somehow managed to reach her house where she fell unconscious and accordingly her family members took her to the district hospital, however, no document or medical papers have been produced by the prosecution which could prove that on 20.07.2018 the prosecutrix was admitted in the district hospital. The learned trial court has thus rightly recorded a finding that the district hospital is a government hospital and no patient can be admitted or can be treated there without any medical papers and in this view, the testimony of the prosecutrix has not been believed by the learned trial court.

We also notice that even the investigating officer-P.W.-6 (Sub Inspector, Nitish Kumar) did not investigate the fact as to whether the prosecutrix was admitted in the district hospital. The learned trial court has thus rightly concluded that there is no evidence available on record which could establish that the prosectrix was taken to the district hospital, Faizabad on 20.07.2018.

Another contradiction noticed by the learned trial court is that the prosecutrix has stated that she was discharged from the hospital on 20.07.2018 itself, however, the F.I.R. could not be lodged on the second day i.e. 21.07.2018 for the reason that she was not in a position to narrate the incident to her family members. But it is to be noticed that in case the petitioner was not well even on 21.07.2018, how was she discharged from the hospital on 20.07.2018 itself. Giving such reasons, the learned trial court has found that the fact that the prosecutrix was admitted in the district hospital, Faizabad on 20.07.2018 is not worthy of belief.

Further, even the written report, on the basis of which the First Information Report was lodged, has been found to contain overwriting not at one but two places where the date of incident has been described. The learned trial court has found that the said written report bears cutting and overwriting and initially date of incident described therein was 19.07.2018, whereas after overwriting it has been made 20.07.2015. The written report has been admitted in her statement by the prosecutrix.

There are very cogent reasons given by the learned trial court as to why the testimony of the prosecutrix cannot be believed and as to why her version cannot be accepted. In the cross-examination, the prosecutrix stated before the court during trial that she had resisted rape on her person which had resulted in bodily injuries and further that a thorn pricked her back and that on account of resistance, scratches and signs of biting by teeth were caused on her body. However, the doctor who conducted the examination of the prosecutrix, Dr. Priyanka Jain-P.W.-2 has reported that there was no sign of any external injury on the person of the prosecutrix. This witness, namely, P.W.-2, Dr. Priyanka Jain in her examination in cheif has clearly stated that at the time of medical examination, no external injury on the body of the prosecutrix was found. It is to be noticed that the prosecutrix was examined on the third day of the incident i.e. on 23.07.2018, who in her statement had not only deposed that she resisted rape on her but has also stated that she had suffered bodily injuries and further that a thorn had pricked her back and scratches and sign of biting by teeth were caused on her body. However, in absence of any such mention of any external bodily injuries in the medical report, which has been proved by the doctor conducting the medical examination of the prosecutrix, such statement of the prosecutrix clearly is unworthy of being given any credence.

  We are conscious of the fact that in a case relating to offence under section 376 of I.P.C. corroboration of the evidence of prosecutrix need not be necessarily required to prove the guilt of the accused by prosecution. However, in this case the statement of the prosecutrix relating to external bodily injuries having been caused on account of the resistance put up by her during the incident is completely belied by the medical report and the statement of the doctor who conducted the medical examination on her person.

We are also conscious that in a case in relation to offence punishable under section 376 of I.P.C. conviction of accused on the basis of testimony of the prosecutrix alone is very well permissible, however, it is permissible only in a case where the evidence of the prosecutrix inspires confidence. It is also legally settled that conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required but in case there are cogent reasons, the court can discard the testimony of the prosecutrix. For conviction, testimony of the prosecutrix should be found to be trust-worthy, worthy of reliance and natural. When we examine evidence available on record of the present case at the anvil of the aforesaid legal principles, what we find is that on account of various major contradictions and non-reliability of the testimony of the prosecutrix for unexplained circumstances, it will not be safe to convict the accused of the offence for which he was charged.

It is well settled that though in an appeal against the judgment of acquittal the appellate court can review the entire evidence however, the appellate court has to be conscious that the presumption of innocence in case of acquittal by the learned trial court gets further fortified. The law is also settled that in case on the basis of evidence available on record, if two views are possible, the view taken by the learned trial court should be accepted unless such a view taken by the learned trial court suffers from any manifest illegality or perversity.

In our considered opinion, the learned trial court has taken a possible view which is based on cogent reasons and further that the learned trial court has formed its opinion after appreciating the evidence available on record. The findings in our opinion cannot be said to be perverse in any manner.

Accordingly, we are of the opinion that in case leave to appeal in this case is granted, there is no chance of success of appeal.

Therefore, application seeking leave to appeal is hereby rejected. Consequently the appeal is also dismissed.

 
Order Date :- 10.2.2023
 
akhilesh/
 

 
[Brij Raj Singh, J.]       [D. K. Upadhyaya, J.]