Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2162 (ALL)

Shri Kant @ Kant (Jail Appeal) v. State of U. P.

2016-06-08

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Anil Kumar Srivastava-II, J. – Heard Mr. Abdul Rafey Siddiqui, learned Amicus Curiae for the appellant and Shri Umesh Verma, learned AGA for the State. 2. Instant appeal has arisen out of the judgment of conviction and sentence passed by Additional Sessions Judge, Court No.5, Unnao inSession Trial No.549 of 2004 arising out of Case Crime No.150 of 2004, under Sections 376 /302 IPC State v. Shri Kant, Police Station-Maurawan, District-Unnao whereby learned trial court has acquitted accused appellant under section 376 IPC and convicted under Section 302 IPC and sentenced him with imprisonment for life and along with fine of Rs. 1000/- with default stipulation of three months' simple imprisonment. 3. According to the prosecution version, deceased 'A'(name of victim is not being disclosed) wife of Bhagauti Prasad was living in village-Jangalia Khera, Mazre, P.S. Maurawan, District-Unnao. Complainant Bachchu Lal is brother-in-law (Dewar) of the deceased. Husband of the deceased was living in Punjab. On 23.05.2004 at about 10.30PM, appellant came in the house of deceased and committed rape upon her when she raised an alarm then she was strangulated to death. Dead body of deceased was thrown in the field of Mahraj Deen. Nanhaku @ Badri Vishal Mishra, Smt. Nanhi, Smt. Rekha, Rakesh, Ayodhya, Chhetrapal, Awadhesh Mishra, Smt. Rajwati and others have seen the occurrence, but nobody came to interfere. First information report was lodged on 24.5.2004 at about 11.05AM at Police Station-Maurawan which was registered as Crime No.150 of 2004, under Sections 302, 201, 376, 452 IPC. Investigation was handed over to S.I Smt. Mamta Vidyarthi Station House Officer, P.S. Maurawan. Inquest proceedings were conducted on 24.5.2004 at about 12.15 which concluded at 1.50pm. Dead body was sealed and sent for postmortem. Site plan of the house of deceased as well as the place from where dead body was recovered were prepared. Postmortem was conducted on 25.5.2004 at 3.10pm. Clothes of deceased were sent to Forensic Science Laboratory wherein a report was received that the clothes contains human blood. After investigation charge-sheet under sections 302, 201 and 376 IPC against appellant was submitted by the investigating officer. 4. Postmortem was conducted on 25.5.2004 at 3.10pm. Clothes of deceased were sent to Forensic Science Laboratory wherein a report was received that the clothes contains human blood. After investigation charge-sheet under sections 302, 201 and 376 IPC against appellant was submitted by the investigating officer. 4. In order to prove its case, prosecution has produced P.W.1 Bachchu Lal (complainant), P.W. 2 Nanhakau (eye witness), P.W.3 Rekha, who was declared hostile, P.W. 4, Smt. Rajwati (eye witness), P.W. 5 Head constable Ram Bahadur Yadav who had prepared the chik FIR and registered the case in G.D., P.W.6 S.I. Smt. Mamta Vidhyarti Upadhya investigating officer, P.W.7 Dr. J. Lal who had conducted the postmortem on the dead body of deceased. 5. In the postmortem following antemortem injuries were found on the body of the deceased. (1) Multiple abrasion mark 13cm x 4cm on the front of neck. Base of the mark is pale and margins red, on cutting of the mark ecchymosis present with laceration of snuff internal carotid artery hyoid bone is fractured. (2) Concentric abrasion mark on left side of chest. (3) Abrasion 2.5cm x 1cm on left elbow. (4) Contusion 1.5cm x 1cm right side of back. (5) Abrasion 3cm x 1.05cm on back at the level of scapula. 6. Cause of death was found as ante mortem strangulation. Rigor mortis passed from the body mouth and eyes were open lungs were found congested. Duration of death was about two days. 7. In the statement recorded under section 313 Cr.P.C, it is stated by the appellant that the deceased was of unsound mind and was suffering for fits. She was killed by Bachchu Lal who had falsely implicated him. 8. Learned trial court came to the conclusion that the prosecution has failed to prove the charge under section 376 IPC against the appellant. Accordingly, acquitted the accused-appellant for the offence punishable under section 376 IPC, but learned trial court found the charge under section 302 IPC proved against the appellant. 9. Learned Amicus Curiae for the appellant argued that the prosecution has failed to prove the charge under section 302 IPC against the appellant. Learned trial court has found the main charge under section 376 IPC not proved, hence, whole prosecution story becomes doubtful. It is further submitted that no witness has seen the occurrence. Place of occurrence has also been changed. Learned trial court has found the main charge under section 376 IPC not proved, hence, whole prosecution story becomes doubtful. It is further submitted that no witness has seen the occurrence. Place of occurrence has also been changed. First information report was lodged with considerable delay. 10. Per contra, learned AGA argued that the statement of P.W.3 Rekha who was declared hostile, is believable to the extent that she has stated that the appellant has committed rape upon the deceased. When she raised alarm, then all the persons reached there. Then the appellant ran away from the scene. It is further submitted that even though charge under section 376 IPC is not proved against the appellant, but charge under section 302 IPC is proved and trial court has rightly convicted and sentenced the appellant under section 302 IPC. 11. At the very outset, it is relevant that appellant has been acquitted for an offence punishable under section 376 IPC that part of the judgment of learned trial court has not been challenged by the State. Hence, that order of acquittal has attained finality. 12. Genesis of the occurrence relates to the commission of rape upon the deceased. P.W.1 Bachchu Lal has admitted in the examination-in-chief that when he reached at the spot, by that time appellant ran away from the place of occurrence. P.W.1 Bachchu Lal has not seen the occurrence. P.W.2 Nanhkau has also admitted that when he reached at the spot appellant has ran away from there and the body of deceased 'A' was recovered. It is also admitted by this witness that first information report was lodged after due consultation. P.W.2 Nanhkau is also not an eye witness. 13. P.W.3 Rekha has been declared hostile. She has stated that she reached at the spot on hearing the shrieks of deceased 'A'. She saw that appellant is committing rape upon deceased 'A' when she raised alarm, appellant ran away from the scene. In the morning she saw the dead body. She has admitted that she has not seen Shri Kant (appellant) committing murder of 'A'. P.W.4 Rajwati has also admitted that it was dark night. When she reached at the place of occurrence, appellant was not there. 14. All these four witnesses have given a categorical statement that they have not seen the appellant either committing rape or killing the deceased. P.W.4 Rajwati has also admitted that it was dark night. When she reached at the place of occurrence, appellant was not there. 14. All these four witnesses have given a categorical statement that they have not seen the appellant either committing rape or killing the deceased. Their evidence does not support the prosecution version that appellant has committed rape upon the deceased and murdered her. 15. Dead body of the deceased was found in the field of Mahraj Deen. Inquest proceedings were also conducted there. According to the site plan 'Ka-9' place where rape was committed shown by cross 'X' while dead body was found at place '(X)'. Dead body was found in the field of Mahraj Deen while place where rape was committed is an open space towards southern side of 'chhapar' of Beche Lal. According to P.W.6 S.I. Smt. Mamta Vidyarthi investigating officer place where rape was committed is about 150 yard from the place where dead-body was recovered. No witness has stated that the appellant dragged the dead body to the field of Mahraj Deen. How, dead body reached there could not be proved by the prosecution. Hence, the place of occurrence is also not established by the prosecution. 16. Occurrence has taken place on 23.05.2004 at 10.30 PM. While the first information report was lodged by the complainant on 24.5.2004 at 11.05AM. Distance of the police station was about 16 kilometers. P.W.1 Bachchu Lal has stated that since all the members of his family have gone in marriage and he was all alone in his house. So, he could not go to the police station while P.W.2 Nanhakau has specifically stated that the written report was scribed before him. It was scribed after due consultation. 17. It is settled legal position that first information report should be prompt. It should be lodged at the earliest possible opportunity. Promptness avoids consultation and manipulations. 18. In State of Himachal Pradesh v. Gian Chand (2001)6 SCC 71 , it is held by Hon'ble Apex Court that: Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Promptness avoids consultation and manipulations. 18. In State of Himachal Pradesh v. Gian Chand (2001)6 SCC 71 , it is held by Hon'ble Apex Court that: Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. 19. Admittedly, first information report was lodged after about more than 12 hours. While, the distance of police station from the place of occurrence is about 16 kilometers. P.W.2 Nanhkau himself has admitted that the first information report was lodged after due consultation, it means that after consultation first information report was lodged. Delay attains importance when there is no eye witness of the incident. Prosecution has failed to produce any witness who has seen the occurrence. In such circumstances, delay in lodging the first information report creates a doubt. 20. In this case, genesis of the occurrence is not proved by the prosecution. According to the prosecution version appellant has committed rape upon the deceased when she raised alarm then appellant strangulated her to death. Learned trial court has not accepted the theory of rape and acquitted appellant of the charge under Section 376 IPC. When genesis itself is doubtful then whole prosecution version becomes doubtful. Furthermore, nothing incriminating articles have been recovered from the possession of the appellant. 21. We are of the considered view that the prosecution has miserably failed to prove the charge of murder against the appellant. Learned trial court has misinterpreted the evidence on record. Appreciation of evidence was not done in accordance with law. 22. Hence, the appeal deserves to be allowed and is accordingly allowed. Judgment and order of learned trial court is set aside. Appellant is acquitted of the charge under section 302 IPC. He is in jail. Learned trial court has misinterpreted the evidence on record. Appreciation of evidence was not done in accordance with law. 22. Hence, the appeal deserves to be allowed and is accordingly allowed. Judgment and order of learned trial court is set aside. Appellant is acquitted of the charge under section 302 IPC. He is in jail. He shall be released forthwith if not wanted in any other case. 23. Office is directed to certify this order forthwith to the court concerned and also to send back the lower court record to ensure compliance. Appeal dismissed.