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2012 DIGILAW 547 (UTT)

SHAMSHER v. STATE OF UTTAR PRADESH

2012-09-07

PRAFULLA C.PANT

body2012
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973, is directed against judgment and order dated 31.03.1999, passed by learned Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 47 of 1998, whereby said court has convicted the accused/appellants Sharnsher and Gangu @ Subhash under Section 323/34, 504, 376 of I.P.C. Each one of the accused/appellants has been sentenced to rigorous imprisonment for a period of eight years and directed to pay fine of Rs. 4000/- under Section 376 of I.P.C., rigorous imprisonment for a period of six months under Section 323/34 of I.P.C., and rigorous imprisonment for one year under Section 504 of I.P .C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 01.01.1998, PW5 Sukhwati had gone to cut the grass in the field, in village Jaitpur Ghosi. It is alleged that accused/appellants Shamsher and Gangu @ Subhash came there and hurled abuses at her and assaulted her. A non-cognizable report was got registered by PW1 Prem Pal (husband of Sukhwati), after two days of incident on 03.01.1998, relating to offences punishable under Section 323, 504 of I.P.C. It appears that later, the offence punishable under Section 376 of I.P.C., was added to the Non Cognizable Report No. 01 of 1998, and investigation was done. Sukhwati was medically examined by PW 4 Dr. Vandana Goyal, but no injury was said to have been found on her person. However, after interrogation of the witnesses, PW7 Sub Inspector P.C. Verma submitted charge sheet against the accused/appellants Shamsher and Gangu @ Subhash for their trial in respect of offences punishable under Section 376, 323/34 and 504 of I.P.C. 4. Learned Chief Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned Sessions Judge, Udham Singh Nagar, after hearing the parties, framed charge of offences punishable under Section 376, 323/34 and 504 of I.P.C., against both the accused namely Shamsher and Gangu @ Subhash, to which, they pleaded not guilty and claimed to be tried. Learned Sessions Judge, Udham Singh Nagar, after hearing the parties, framed charge of offences punishable under Section 376, 323/34 and 504 of I.P.C., against both the accused namely Shamsher and Gangu @ Subhash, to which, they pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Prem Pal (informant), PW2 Budhiya (eye witness), PW3 Constable Gopal Sharma (who prepared Non Cognizable Report No 01 of 1998, relating to offences punishable under Section 323, 504 of l.P.C.), PW4 Dr. Vandana Goyal (who medically examined the victim), PW5 Smt. Sukhwati (allegedly injured and raped), PW6 Vimla and PW7 Sub Inspector P.C. Verma (who investigated the crime). Oral and documentary evidence were put to the accused under Section 313 of Cr.P.C., in reply to which, they pleaded that they have been falsely implicated in the crime. However, no evidence in defence was adduced. 5. Before further discussion, this Court thinks it just and proper to mention here that the alleged incident had taken place on 01.01.1998, but for the reasons best known to the informant and his wife, the report was lodged on 03.01.1998, and that too in respect of offences punishable under Section 323 and 504 of LP.C. only. As such, Non Cognizable Report was registered against the accused/appellants Shamsher and Gangu @ Shamsher. Strangely, without explaining on the record, it appears that the investigation was done on the non-cognizable report, and offence punishable under Section 376 of I.P.C., was added. It can be understood that if some accused have committed many offences, including minor and major ones in an incident, the normal person would report at the Police Station without fail, in respect of the major offence. In the present case, the report was lodged after two days of the incident, and still there was no mention of commission of rape by the victim. This creates reasonable doubt in the prosecution story that the crime was committed in a manner suggested by prosecution. 6. On going through the statement of PW4 Dr. Vandana Goyal read with medical report (Ex. A3), this Court finds that there was no external injury found on the person of the victim (Sukhwati). Learned counsel for the accused/appellants argued that had the rape being committed in a field, which was a grove, in the manner suggested by the prosecution. 6. On going through the statement of PW4 Dr. Vandana Goyal read with medical report (Ex. A3), this Court finds that there was no external injury found on the person of the victim (Sukhwati). Learned counsel for the accused/appellants argued that had the rape being committed in a field, which was a grove, in the manner suggested by the prosecution. The victim, who was a married woman, would have resisted and as such absence, of the external injury further creates doubt in the prosecution case. 7. What is more important, which creates doubt in the prosecution story is that PW2 Budhiya, PW5 Sukhwati and PW6 Vimla all had gone to cut the grass at the time of incident and it can be presumed that all of them were in possession of sickles. It is nobody’s case that accused/appellants were armed with any weapon. The names of both the witnesses PW2 Budhiya and PW5 Vimla are not mention in the Non Cognizable Report. 8. PW5 Sukhwati simply stated that she had gone to cut the grass with her sister Vimla and one Budhiya, from where, she was taken towards the grove by the accused and she further told that “IN DONO NE MERE SAATH BURA KAAM KIYA”. Neither it is mentioned who committed rape first on her, nor any other details of commission of rape and how the two accused left her are given in her short statement of two paras. PW5 Sukhwati in her cross examination admits that she did not know the accused from before. She further told that on the very day, when she had gone to cut the grass, she had also gone to Police out post (But appears that she did not get lodged any report on that day). From the cross examination of PW6 Vimla, it appears that it was a case where the two accused only stopped PW2 Budhiya, PW5 Sukhwati and PW6 Vimla from cutting the grass and they were made to go back. 9. In the above circumstances, having re-appreciated the entire evidence on record, this Court comes to the conclusion that the trial court has erred in law in holding that prosecution has successfully proved the charge of offences punishable under Section 376, 323/34 and 504 of I.P.C., against the accused/appellants Shamsher and Gangu @ Subhash. Therefore, the appeal deserves to be allowed. 10. Accordingly, the appeal is allowed. Therefore, the appeal deserves to be allowed. 10. Accordingly, the appeal is allowed. The impugned judgment and order dated 31.03.1999, passed by Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 47 of 1998, recording the conviction and sentence against the accused/appellants Shamsher and Gangu @ Subhash is hereby set aside. They are acquitted from the charge of offences punishable under Section 376, 323/34 and 504 of I.P.C. Let the accused/appellants be set at liberty forthwith, if not required, in connection with any other crime. The lower court record be sent back. The copy of this judgment be sent to the Superintendent of the jail concerned.