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Allahabad High Court · body

2014 DIGILAW 1529 (ALL)

Mahesh Gupta v. State of U. P.

2014-05-12

ARVIND KUMAR TRIPATHI II

body2014
JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. 1. Heard Smt. Neelam Srivastava, learned counsel for the appellant, and Shri Sharad Dixit, learned AGA for the State respondent. 2. This criminal appeal has been filed challenging the judgment and order dated 30.5.2009 passed by the learned Additional Sessions Judge/Fast Track Court No.1, Unnao in case crime no.142 of 2008, Police Station Vihar, District Unnao (State v. Mahesh Gupta) in Sessions Trial No.433 of 2008 by which the appellant was convicted under Section 376 IPC and was directed to undergo 10 years RI, and also directed to pay fine of Rs.2000/-. In default of payment of fine, he was directed to undergo three months additional RI. 3. As per factual matrix of the case, daughter of Ramesh Chandra Sharma, the victim, aged about 18 years, committed suicide by consuming poison on 12.2.2008. Information regarding committing suicide was given to police out post concerned. When a note of dying declaration was found in the papers of the deceased, FIR was lodged in Police Out Post Bhagwant Nagar, Police Station Bihar, District Unnao on 14.2.2008 by the father of deceased, at about 12.10 noon. It was mentioned in the FIR tat when inquired of the reasons of suicide he came to know that on 11.2.2008, his daughter - the victim was alone in her house. In the meantime, Mahesh Gupta, son of Mahadev Gupta entered into her house and committed rape. The victim has informed her mother on the same day in the evening, but her mother did not inform him due to fear. The victim has committed sucide on 12.2.2008 by consuming poisonous substance. Along with this FIR, suicide note written by the victim/deceased was annexed. On this, a case under Section 376 , 306 IPC was registered. During investigation suicide note was taken by the Investigating Officer. A fard Ex.Ka.2 was prepared. In order to ascertain that the hand writing on the suicide note is of the victim, a copy containing the hand writing of the victim was also taken by the Investigating Officer, and a fard Ex.Ka.4 was prepared. Post mortem was conducted. Viscera was preserved. After investigation charge under Sections 376, 306 IPC was framed. Accused pleaded not guilty and claimed to be tried. 4. Prosecution examined Ramesh Chandra Sharma as PW-1, Kusuma as PW-2, Dr. Post mortem was conducted. Viscera was preserved. After investigation charge under Sections 376, 306 IPC was framed. Accused pleaded not guilty and claimed to be tried. 4. Prosecution examined Ramesh Chandra Sharma as PW-1, Kusuma as PW-2, Dr. P.B.S. Chauhan as PW-3, Sub Inspector, Satyapal Pathak as PW-4, H.C.R. Narendra Bahadur Singh as PW-5, and S.I. Suresh Chandra Shukla as PW-6. The statement of accused under Section 313 Cr.P.C. was recorded in which he denied his involvement in rape, and also stated that she committed suicide due to harassment of her family members, and he has been wrongly implicated, and wrong suicide note has been prepared. 5. Learned court below, after going through the evidence on record and hearing the arguments, acquitted the accused for the charge under Section 306 IPC and convicted him under Section 376 IPC, and directed to undergo 10 years RI and also to pay fine of Rs.2000/-. Feeling aggrieved, this criminal appeal has been filed. 6. It was submitted by the learned counsel for the appellant that there is no independent witness of rape and of the fact that accused appellant entered into the house and exited from the house of victim on 11.2.2008. There is sufficient delay in lodging of report. Occurrence took place on 12.2.2008 and FIR was lodged on 14.2.2008, but there is no plausible explanation. It was further submitted that prosecution has failed to prove the case beyond reasonable doubt. Statement of other three sisters of the victim has not been recorded. Container of poison was not recovered from the possession of victim and source of procurring poision has not been proved. There is no report of hand writing expert to prove that suicide note is in the hand writing of the victim. The evidence of father is hearsay evidence and is not believable. 7. Learned AGA has opposed the appeal and submitted that viscera was sent for chemical analysis and from the report it contains aluminium phosphide, hence the theory of suicide is proved. As father and mother of the deceased has proved the hand writing, then if, at all, there was any doubt, then the appellant could have prayed for hand writing expert, but that has not been done. As father and mother of the deceased has proved the hand writing, then if, at all, there was any doubt, then the appellant could have prayed for hand writing expert, but that has not been done. It was further submitted that there cannot be eye witness of rape and simply no body saw him into the house and exiting from the house is no proof of his innocence. 8. From a perusal of entire evidence on record it is clear that dying declaration or letter in which the victim has mentioned her plight and reasons for committing suicide is most important piece of evidence and if letter is found to be written by the victim, then it will certainly lead to the guilt of the accused appellant. 9. Ex.Ka.21 is the information, which father of the deceased has given to the Incharge Out Post Bhagwant Nagar, Police Station Bihar, District Unnao on 12.2.2008 regarding suicide of his daughter - the victim, aged about 18 years. In this, it has specifically been mentioned that his daughter has consumed some poisonous substance. 10. Ex.Ka.20 is copy of G.D. Entry of this information. It reveals that at about 3: 05 PM, this letter was given at Out Pose Bhagwant Nagar, Police Station Bihar, District Unnao. On receiving this information, S.I. Suresh Chandra Shukla started for the place of occurrence. He was examined as PW-6. 11. S.I. Suresh Chandra Shukla has stated on oath that on receiving information regarding suicide of the victim he recorded the statement of Ramesh Chandra Verma. 12. PW-5 Head Constable Narendra Bahadur Singh has stated on oath that on 12.2.2008 he was posted at Out Pose Bhagwant Nagar, Police Station Bihar, District Unnao and on that date, at about 3: 05 PM, Ramesh Chandra Sharma gave a written information regarding suicide of her daughter. An entry to that effect was made in G.D. As Item No.12. This witness has proved the entry of G.D. As Ex.Ka.20. S.I. Suresh Chandra Shukla PW-6 has stated in his examination in chief that on receiving this information, he visited the place of occurrence, prepared inquest report and letters to CMO and other officers. This witness has proved panchayatnama Ex.Ka.17 and other letters Ex.Ka.14, 15, 16, 18 and 19. He further stated in his cross examination that it was evident from the dead body that deceased has consumed some poisonous substance. This witness has proved panchayatnama Ex.Ka.17 and other letters Ex.Ka.14, 15, 16, 18 and 19. He further stated in his cross examination that it was evident from the dead body that deceased has consumed some poisonous substance. He did not find any suicide note in the room where dead body was found. Suicide note was given to him after two days, i.e. on 14.2.2008 by the informant, and on that very day, case was registered. He further stated in his cross examination that the statement of the informant was recorded on 14.2.2008, and statement of his wife was recorded on 11.2.2008. he received suicide note on 14.2.2008, and copy of victim's hand writing was handed over him on 17.2.2008. He further stated that in the suicide note date and time of rape has not been mentioned. 13. PW-2 is mother of deceased. She has stated that on 11.2.2008 her husband had gone to work as carpenter in Bagwant Nagar market. She had also gone to the market for some work, and her daughter was alone in the house. When she returned his daughter was weeping. When asked, she told her that Mahesh Gupta has committed rape. The clothes of her daughter were torn, then she asked her daughter to remain silent, as it will be treated as disgrace. She further stated that she ask her daughter not to tell this to her father, as there talk of her marriage was going on. When her husband returned from the market it was late night. On next morning her husband went to Bhagwant Nagar early with other relatives with whom he had returned on 11.2.2008. She has further stated that on next day, at about 10 AM, she had gone to wash clothes on nearby hand pump and when she returned after two hours, she found the victim lying on the cot, and her breath was very shallow. When asked, she informed her that there is no purpose for her to live and as Mahesh Gupta has committed rape she is not able to show her face and due to which she has consumed poison. She has further stated that then she informed her husband, but before any treatment could be provided she breathed her last. Then she lost consiousness. She was sent to the doctor accompanied by another person. She remained ill for 2 - 3 days. She has further stated that then she informed her husband, but before any treatment could be provided she breathed her last. Then she lost consiousness. She was sent to the doctor accompanied by another person. She remained ill for 2 - 3 days. When her husband returned after last rites it was late night and she was sleeping after taking some medicine. She has further submitted that when panchayatnama was prepared she was with the doctor at Bhagwant Nagar. Next day her younger daughter Arti gave diary of the victim in which suicide note was kept. This witness proved the suicide note to be in the hand writing of her daughter. After getting the suicide note her husband asked her, then she narrated entire story. She was further asked that as to why he was not informed earlier, then she replied that she kept mum because publicity would have given her daughter bad name. Then her husband went to Bhangwant Nagar Out post and lodged report. This witness has further proved copy of her daughter, which is material Ex.Ka.1. This witness has further stated that songs in the copy are in the hand writing of her daughter. She has seen her daughter writing songs in that copy. In her cross examination she has admitted that she is educated up to class V. 14. There is evidence on record that the deceased committed suicide on 12.2.2008, at about 11 AM, and the information of suicide was given by the father of the deceased to In-charge, Police Out Post, Bhagwant Nagar through his written application Ex.Ka.21, and it was registered in G.D. on that date at entry no.12, at about 3: 05 PM. G.D. entry is Ex.Ka.2. In this application, it has been clearly mentioned that his daughter is consumed poison, and committed suicide, please inquire about the reasons of suicide and take necessary steps. This information of death clearly suggests that information of suicide was given in police out post Bhagwant Nagar at the earliest. After that when a suicide note was received by family members, then FIR was lodged in police out post on 14.2.2008, at about 12: 10 PM. 15. This information of death clearly suggests that information of suicide was given in police out post Bhagwant Nagar at the earliest. After that when a suicide note was received by family members, then FIR was lodged in police out post on 14.2.2008, at about 12: 10 PM. 15. The suicide note reads as follows: - "vkRegR;k T;ksrh vknj.kh; iz/kkukpk;Z vkidks lknj ueLrs eEeh ikik dks lknj ueLrs /kqUuq dks I;kjA eSa fdlh ls fcuk dqN dgs vkRegR;k dj jgh gwWaA iz/kku th egknso xqIrk ds yM+ds egs'k us esjs ?kj esa esjs lkFk xyr dke fd;k gS blesa esjh eEeh ikik eq>s ekQ djuk esjh tSlh fdLer Hkxoku fdlh dks er nsuk eSa vius vkidks jksd ugha ldh blfy, vkRegR;k dj jgh gwWaA vkidh csVh T;ksrh 'kekZ eq>s ekQ dj nsuk" 16. This has been proved by PW-2 mother of the deceased to be in the hand writing of the deceased. The mother has stated that she has seen her daughter writing songs in the copy material Ex.1. 17. The most important question arises as to whether PW-2 was a competent witness under Section 47 of the Indian Evidence Act to provide evidence regarding the hand writing of deceased. In this regard, reference may be had to Section 47 of the Indian Evidence Act, which reads as follows: - "47. Opinion as to handwriting, when relevant - When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact." 18. Under Section 47 of the Indian Evidence Act, the hand writing must be known on the basis of familiarity resulting in frequent observation and experience. Mother has claimed to have seen the deceased writing songs in the copy Material Ex.1. Thus, she was acquanted with hand writing of the deceased. The statement of PW-2, on this aspect, is uncrossed version. In the absence of any cross examination on that part and especially the fact that accused appellant have not produced any report/opinion of hand writing expert to rebut the claim of prosecution, the suicide note Ex.Ka.11 is proved to be in the hand writing of the deceased. The statement of PW-2, on this aspect, is uncrossed version. In the absence of any cross examination on that part and especially the fact that accused appellant have not produced any report/opinion of hand writing expert to rebut the claim of prosecution, the suicide note Ex.Ka.11 is proved to be in the hand writing of the deceased. There is one more evidence against the appellant. The mother of the deceased have stated in her examination in chief that when she returned on 12.2.2008, she saw the deceased lying on a cot with shallow breathing, then she asked her as to what happened, then she told that Mahesh Gupta has committed rape with her and due to which, feeling ashamed, she has consumed poison. This statement can also be treated as dying declaration of the deceased. PW-2 Kusuma has also not been cross examined on this aspect, and during cross examination she has narrated the verbatim statement, which she has given in examination in chief. This oral statement/narration of the cause of death is somewhat identical with the suicide note Ex.Ka.11. 19. The suicide note left by the deceased is admissible in evidence being indicative of cause of death of the victim. It also supports the prosecution version that the deceased was raped by the present appellant, and due to which she committed suicide. Unfortunately, the appellant was acquitted under Section 306 IPC, and the prosecution, reasons best known to them, have not filed any appeal against the acquittal, but the fact remains that she was raped by the appellant. The offence of rape is proved by the suicide note and her narration before her mother. Unfortunately, the victim is not alive to tell her plight, but the circumstances clearly establish that she was raped by the appellant. 20. Narration of fact, mentioned above, clearly suggests that timely information of suicide was given to the In-charge Out post Bhagwant Nagar. It also proves that as soon as suicide note was discovered, it was handed over to the Investigating Officer by the father of the deceased and mother PW-2, who is fit person to be familiar with hand writing of her daughter has proved the hand writing of suicide note to be of her daughter, who had committed suicide. Viscera report Ex.Ka.22 clearly proves consumption of poison aluminium phosphide. 21. Viscera report Ex.Ka.22 clearly proves consumption of poison aluminium phosphide. 21. During cross examination though it has been said that the appellant has been implicated due to enmity, but there is no cogent evidence regarding enmity. The absence of motive for false implication also proves the prosecution version. 22. From the discussions made above, it is clear that prosecution has established beyond doubt that victim/deceased was raped by the appellant on 11.2.2008 in the noon. 23. The prosecution has been able to prove the charge of offence under Section 376 IPC beyond reasonable doubt. The appellant has rightly been convicted by the trial court. The judgment of trial court is based on record. There is no need for interference in the judgment of conviction, and the order of sentence passed by the trial court. 24. In the result, the criminal appeal is liable to be dismissed, and is hereby dismissed. The appellant is in jail. He shall remain in jail to serve out the sentence awarded to him.