Jivreel And Ors.2 vs The State Of U.P.
2023 Latest Caselaw 25314 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:59903
 
Reserved on 22.08.2023
 
Delivered on 19.09.2023
 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW
 
Court No. - 13
 
Case :- CRIMINAL APPEAL No. - 455 of 2002
 
Appellant :- Jivreel and others 2
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dr. L.P. Misra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard Shri L.P. Mishra, learned counsel for the appellants as well as Shri Jayant Singh Tomar, learned A.G.A. for the State.

2. Present appeal has been preferred against the judgment and order dated 26.03.2002 passed by the learned Sessions Judge, Shrawasti Sri R.P. Singh convicting appellant no. 1 under Section 363/366/376 IPC I.P.C. sentencing him three years, four years and seven years rigorous imprisonment with a fine of Rs. 1000/- each for the offence under Section 363 and 366 IPC, with a fine of Rs. 2000/- for the offence under Section 376 IPC and convicting appellant no. 2 and 3 under Sections 363/366 IPC sentencing them for three years and four years rigorous imprisonment and a fine of Rs. 1000/- for each offence, with default provisions.

3. The prosecution case in brief as per the written report exhibit Ka-A is that the complainant Ram Kewal (PW-1) gave a written report/information on 22.05.2000 at about 21:20 hours at P.S. Gilaula, District Shravasti alleging that on 18.05.2000 at about 7-8 pm, his minor daughter Bitiya Rani (PW-2) aged about 16 years has been enticed away by the accused Jibril and Bekaru with malicious intent and they have been seen going on bycycle by Hariram (DW-1) and Manshram of the same village and identified by them. The complainant and his family members kept on searching Bitiya Rani and accused persons Jibril and Bekaru and when no trace could be found, consequently, a written report was given at the Police Station which is exhibited as ex. Ka-1 and on that basis F.I.R. Ex.Ka-10 was written and the accused persons namely Jibril and Bekaru were made accused of the offences under Section 363/366 IPC.

4. The investigation of the case has been done by Sub Inspector Avadhuram (PW-3). It is alleged that Bitiya Rani was recovered by the police on 22.05.2000. The statement of PW-1 and PW-2 were recorded by the I.O. The prosecutrix Bitiya Rani was medically examined by Doctor Shashi (PW-5) at Women's Hospital Bahraich and prepared the medical report Ex.Ka-2. For testing of semen, a sample was sent on 23.05.2000 which is exhibited as Ex.Ka-4. On 29.05.2000 for assessing age of the prosecutrix, x-ray of wrist and elbow of the prosecutrix was taken. The x-ray report is exhibited as Ex. Ka-3. A supplementary medical report was prepared on 29.05.2000 which is exhibited as Ex.KA-5 by Dr. Shashi.

5. Site inspection was conducted by PW-3 on 24.05.2000 and site plan Ex.Ka-6 was prepared. The investigating officer after recording statement of the prosecutrix under Section 161 Cr.P.C. and after completing formalities, filed charge sheet which is Ex. Ka-7 against Jibril on 05.07.2000, against accused Bekaru and Munijar on 11.07.2000 and 25.07.2000 which is exhibited as Ex. Ka-8 and Ka-9.

6. To prove the charges, the prosecution has produced only three witnesses Ram Kewal (complainant) as PW-1, Bitiya Rani (victim) as PW-2 and Avadhuram (investigating officer) as PW-3.

PW-1 Ram Kewal, the complainant in his examination-in-chief has alleged that Gibril, Munijar and Bekaru had enticed away the prosecutrix. At that time, she was fifteen years old. He further stated that when she went missing, he was not at home. When he returned, on that day he came to know about missing of her daughter/prosecutrix through Mansharam and Hariram and two days after, he reported the incident.

PW-1/complainant went to the police station after getting information and there he got the custody of the prosecutrix. He denied suggestion that due to enmity, he has falsely implicated the accused persons.

PW-2 Bitiya Rani, the prosecutrix, in her examination has stated that she was 16 years old at the time of incident. While she went outside the village to attend call of nature, Jibril, Munijar and Bekaru forcibly made her to sit on the bicycle and from there she was taken to Mohammadpur, there she was kept at the in-laws place of Bekaru in the night where accused Jibril raped her. On the second day, she was kept at Dargah at the place of Gibril's sister and for one night there nobody raped her. On the next day she was left near the canal at Dharsama and the accused ran away. After some time, the inspector came and took her into the jeep to the police station and called her father and after medical examination of the prosecutrix, she was given into the custody of her father.

In the cross, PW-2 has stated that while she went to attend the call of nature, her parents, mother and father and her brother were present at home. On the field she was forcibly made to sit on the bicycle of Munijar. When she raised alarm, she was slapped twice/thrice. In the night, she was taken to Mohammadpur and from there to the place of Jibril's sister and in the end, she was left at Dharsama near the canal. The police inspector was coming in the jeep and when he saw Bitiya Rani, he took her to the police station. She remained there for one day and then she went to her home.

While deposing before the Court, the prosecutrix has denied her statement under Section 161 Cr.P.C. stating that she had told name of Munijar, however, she does not know why I.O. has not written his name. She further admitted enmity between her father and Jibril's father. She denied suggestion that the accused persons have not enticed her away, neither Jibril has raped her. She further denied that her father has falsely implicated the accused persons.

PW-3 investigating officer has supported the prosecution case. In the cross he stated that the prosecutrix Bitiya Rani and the complainant came together at the police station and the F.I.R. was lodged. He denied the suggestion that he has prepared all the documents while sitting at the police station and has not conducted investigation.

7. DW-1 who is the eye witness of the fact denied that the prosecutrix was enticed away by the accused persons. He has outrightly denied the prosecution case.He further denied that he has not informed the family members of the prosecutrix regarding the alleged incident.

8. Learned counsel for the appellants has contended that in the written report, only names of Jibril and Bekaru were mentioned. The prosecution has not produced Hariram and Munsharam who were the eye witnesses of the fact that the prosecutrix was enticed away by the accused persons.

Learned counsel for the appellants submits that improvement has been made by the prosecutrix from her statement under Section 161 Cr.P.C. to the statement under Section 164 Cr.P.C. For the first time, while giving statement under Section 164 Cr.P.C., she has taken name of the accused Munijar.

Learned counsel for the appellants further submits that regarding age there is contradiction in the statement of PW-1 and PW-2. There is improvement made by the prosecutrix/PW-2 during course of trial. It is next submitted that the doctor has not been examined who medically examined the prosecutrix. It is also submitted that in site plan, place of recovery has not been shown by the investigating officer. Statement of PW-1 and PW-2 are contradictory. According to the statement of PW-1 and PW-2, the prosecutrix could not have been recovered on the alleged date. According to the statement of PW-1 and PW-2, the recovery is doubtful.

9. Learned A.G.A. has opposed the petition submitting that the prosecution witnesses PW-1 and PW-2 have supported the prosecution case. PW-3 has also supported the prosecution case and according to the statement of PW-1 and PW-2, the prosecutrix was below 18 years of age. There is no illegality in the impugned judgment passed by the trial court.

10. Perusal of the written report shows that the allegation of enticing away is only on Jibril and Bekaru; the alleged incident of enticing away the prosecutrix has been seen by Hariram and Munsharam and they recognized the accused persons as per the written report which was given on 22.05.2000, however, as per the statement of the prosecutrix under Section 164 Cr.P.C., all three accused persons Jibril, Munijar and Bekaru enticed her away.

Before the Court, PW-2 has again made allegations against all three accused persons Jibril, Munijar and Bekaru. According to her statement, on the day when she was enticed away from her village, she was taken to Mohammadpur and kept there for one night and thereafter on the second day, she was taken at the place of sister of Jibril and was against kept there for one night and on the third day, she was left near the canal at Dhasama.

In the cross, there is slight variance where she has stated that from Mohammadpur, she was taken to the place of sister of Jibril on the second day in the first half of morning and on the same day in the second half, she was left near canal at Dharsama. This statement is slightly contradictory with the examination-in-chief. She, in her cross, further stated that she was weeping near the canal; she was taken to the police station by the Police Inspector where she remained for one day and then went home.

She denied the statement under Section 161 Cr.P.C., recorded by the investigating officer where PW-1 stated that the prosecutrix was recovered by the police on the fifth day of the incident. This is in contradiction to the statement of PW-2.

In the cross, PW-1 has stated that when the prosecutrix went missing, he was not at home for 2-3 days. When he returned on that day, Munsharam and Hariram told him regarding the enticement of the prosecutrix and after two days, he lodged the report. He was given custody of the prosecutrix in the police station.

The investigating officer PW-3 has stated that he received the investigation on 23.05.2000 and on the same day, he recorded the statement of the prosecutrix as well as the complainant in the police station. In the cross, he has stated that the prosecutrix Bitiya Rani and the complainant came together at the police station and the F.I.R. was registered at that time.

11. A cumulative reading of the statements of PW-1, PW-2 and PW-3 shows that the investigating officer nowhere has stated that he recovered the prosecutrix, rather, it has been stated that she came with the complainant at the police station and F.I.R. was lodged. On the contrary, PW-1 stated that after five days of the incident, the police recovered the prosecutrix.

In the cross, PW-1 has stated that after five days, he reported the matter to the police station and there he met the prosecutrix, whereas PW-2 in her statement as well as cross has stated that she was left near the canal at Dharsama, on the second day of the incident and from there, police inspector took her on the jeep to the police station. Thereafter, they called her father and after medical examination, her custody was given to her father. Therefore, the recovery of the prosecutrix in view of these three contrary statements of PW-1, 2 and 3 becomes totally doubtful.

While preparing site plan, the investigating officer has not shown the place of recovery in site plan. In his statement, PW-3 (investigating officer) has not said anything about recovery of the prosecutrix, rather he has stated that he received the investigation on 23.05.2000 and on the same day, statement of the prosecutrix was taken at the police station. Nothing at all has been said by the investigating officer regarding recovery of the prosecutrix. Thus, there is a complete contradiction in the statement of the prosecution witnesses regarding the date of incident and regarding recovery of the prosecutrix.

So far as the age of the prosecutrix is concerned, PW-1 has stated that age of the prosecutrix is 15 years; she further stated that she is 16 years old and in the radiological examination, her age has been assessed after conducting ossification test by the doctor to be 18 years.

Since, the statements of PW-1 and PW-2 regarding the age are contradictory, no other proof of age has been filed by the prosecution, therefore, the only thing left is the radiological examination i.e. supplementary medical report and according to that, the age of the prosecutrix is about 18 years.

As per the medical report dated 23.05.2000, the hymen of the prosecutrix has been found old and torn. No corroborative material such as cloths of the prosecutrix or the FSL report have been produced by the prosecution in support of this case.

So far as the testimony of the prosecutrix is concerned, there is improvement made in the testimony of the prosecutrix. She has denied her statement given to the I.O., under section 161 Cr.P.C. In the statement under Section 164 Cr.P.C., she has added name of one accused Munijar. Thus, she has made improvement from her earlier statement under Section 161 Cr.P.C.

While giving statement before the Court, she has stated in chief that for two nights, she was kept by the accused persons firstly at Mohmmadpur and secondly at Dargah and on the next day she was left near the canal at Dharsama and from there she was taken by the inspector on the jeep to the police station and from the police station, her father was called upon and after medical examination, she was given in the custody of her father.

In the cross-examination, she has stated that on the first day, she was kept at Mohammadpur and on the second day she was kept in the morning at the place of sister of Jibril and on the same day afternoon, she was left near canal at Dharsama, from there she was taken to the police station by the investigating officer. She remained at the police station for one day and thereafter she went home. She has admitted enmity with her father and the father of the accused Jibril. Thus, statement of PW-2 contradicts the statement of PW-1.

Regarding the recovery as well as date of incident, both PW-1 and PW-2 have not stated any date and time of the incident. According to PW-1, the prosecutrix was recovered by the police on the fifth day of the incident and after medical examination, she was given in his custody. According to PW-2 on the second day she was taken by the Inspector to the police station where she resided for one day and then went home. PW-3 has not even made any whisper regarding the recovery of the prosecutrix. On the contrary, he has stated in the cross that the prosecutrix and the complainant went together at the police station and F.I.R. was lodged at that time.

The statement of PW-1, PW-2 and PW-3 are contradictory regarding the recovery and date of incident. In fact, the date of incident has not been stated at all by both the witnesses of fact.

The prosecution has not produced the doctor who had conducted medical examination of the prosecutrix; no corroborative medical evidences other than the medical report has been produced by the prosecution; the medical report produced by the prosecution does not support the prosecution case; two eye witnesses of the fact namely Hariram and Munsharam have been withheld by the prosecution, therefore, adverse inference under Section 114 (g) of Indian Evidence Act is required to be taken against the prosecution as one of the eye witness has been examined by the defence as DW-1 who has denied the prosecution case.

Oral evidences given by PW-1 and PW-2 and utterly contradictory and therefore, the oral evidence given by PW-1 and PW-2 are not proved under Section 60 of the Evidence Act, coupled with the fact that the doctor who has conducted the medical examination of the prosecutrix has not been produced; place of recovery has not been shown in site plan by the investigating officer; recovery of the prosecutrix is highly doubtful as per the contradictory statement of PW-1, PW-2 and PW-3, thus, prosecution has utterly failed to prove its case beyond reasonable doubt.

12. The Supreme Court in the case of "Jaya Mala v. Govt. of J & K, (1982) 2 SCC 538" has held that margin of error in age ascertained by radiological examination is two years on either side. The appellants are entitled to give benefit on the higher side, thus, it can be safely said that the prosecutrix was major at the time of the incident and therefore, no offence under Section 363 IPC against the appellants is made out.

So far as the offence under Section 376 IPC is concerned, it is significant to note that no date and time of the incident has been alleged by PW-1 and PW-2; the fact witnesses/independent witnesses namely Hariram and Munsharam have been withheld; DW-1 Hariram who is the eye witness, according to the prosecution case in the written report, of the fact that the prosecutrix was enticed away by the accused persons, out-rightly denied the prosecution case.

The testimony of the prosecutrix suffers from improvement. Statement under Section 161 Cr.P.C. has been denied by the prosecutrix before the Court. In the statement under Section 164 Cr.P.C., she has made improvement from the prosecution story in the written report and added the name of Munijar as accused even in her examination-in-chief and cross-examination. There is contradiction to the effect that in the examination-in-chief, it has been stated by her that she was kept at Mohammadpur in the night and on the second day, she was kept at Dargah in the night and on third day she was left near the canal at Dharama, whereas in the cross-examination, she has improved the statement stating that on the second day of the incident, she was left near the canal at Dharsama. Thus, statement of the prosecutrix suffers from material contradictions and improvement and does not inspire confidence. The prosecutrix has admitted enmity between Jibril's father and father of the prosecutrix.

No other corroborative material such as cloths of the prosecutrix or the FSL report or anything short of corroboration has been produced by the prosecution to prove its case.

Perusing the material on record, I disagree with the finding of the trial court that the ocular evidence and the medical evidence are in conformity with the case of the prosecution to convict the accused. The trial court has failed to notice the vital defects in the prosecution case and in a very mechanical way convicted the accused.

13. In view of the observations made hereinabove, the appeal is allowed. The impugned judgment and conviction order dated 26.03.2002 passed by the learned Sessions Judge, Shravasti, in Session Trial No. 89/2000 "State Vs. Jibril", P.S. Gilaula, District Shravasti is set aside. The appellant no. 1 is acquitted of the offences under Section 363/366/376 IPC and appellant no. 2 and 3 are acquitted of the offences under Section 363/366 IPC. Appellants are on bail. Their bail bonds are cancelled and sureties discharged.

Let a copy of this judgment be sent to the District Court concerned along with the lower court record.

(Karunesh Singh Pawar,J.)

Order Date :- 19.09.2023/R.C.