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2016 DIGILAW 387 (ALL)

OM WATI v. STATE OF U. P.

2016-02-01

RANJANA PANDYA

body2016
Judgment : Hon'ble Mrs. Ranjana Pandya,J. 1. Since both the afore-captioned criminal appeals have been filed by the appellants challenging the judgment and order dated 18.02.2013 passed in the Sessions Trial No. 94 of 2011 arising out same case crime number, hence they are being decided by this common order. 2. Challenge in these appeals is to the judgment and order dated 18.02.2013 passed by Shri Chandrodya Kumar, learned Additional District & Sessions Judge, Court No. 2, Pilibhit in Sessions Trial No. 94 of 2011 (State vs Rakesh Kumar and others), arising out of Case Crime No. 631 of 2009, under sections 376 and 306 IPC, Police Station Jahanabad, district Pilibhit, whereby the accused-appellant Rakesh Kumar was convicted under section 376 IPC and sentenced to ten years' rigorous imprisonment and a fine of Rs. 10,000/- and accused-appellant Om Wati was found guilty under section 306 IPC and sentenced to ten years' rigorous imprisonment and a fine of Rs. 8000/- with default stipulation. The accused Pooja being a juvenile, her case was separated. 3. Brief facts of the case are that an application under section 156(3) Cr.P.C. was moved by the informant Deen Dayal on 24.04.2009 stating that on 17.01.2009 his daughter aged 14 years at 8.00 p.m. had gone towards the west of the village to attend the call of nature, where she was caught by accused Rakesh Kumar, who raped her. When the victim returned home, she narrated the incident to her brother and mother, at which brother and mother of the victim went to complain about the matter to the family members of Rakesh Kumar, at which, Rakesh Kumar's father Nathu Lal, his mother and sister Pooja started abusing the informant, who came back home and did not lodge any report due to fear and reputation of family in the society. On 19.04.2009 at 7 O'clock, the victim was passing in front of the house of the accused, she was carrying cow-dung, at which Nathu Lal, his wife and Pooja, who were standing at their door passed comments on the victim that in spite of such an incident, she is still alive and has not died. The victim came back home and drunk insecticide in the house. She was taken to the hospital, where she died. Postmortem was conducted on her body. The victim came back home and drunk insecticide in the house. She was taken to the hospital, where she died. Postmortem was conducted on her body. After cremation, the informant went to lodge the FIR, but the FIR was not lodged, then he sent an application by Registered Post to the SSP, Pilibhit, but when no action was taken, he moved an application under section 156(3) Cr.P.C., on which an order was passed for registration of the FIR. Thereafter, investigation started, which ended into filing of the charge sheet against the accused persons. 4. The prosecution examined seven witnesses in support of the case. PW-1 Deen Dayal, the informant, who has proved the written report as Ext. Ka-1. PW-2 is Imarti Devi, mother of the victim. PW-3 is Jhanjhan Lal. PW-4 is Dr. Rajesh Kumar, who conducted the autopsy on the body of the victim and found the following ante-mortem injuries: (1) Abraded contusion on chin, round blue ecchymosis and three vertical abraded lines on it. (2) Left side of foot at dorsal side all fingers abraded. 5. The doctor opined that since the cause of death could not be ascertained, hence viscera was preserved. He proved the postmortem report as Ext. Ka-2. 6. PW-5 is Constable Member Singh, who prepared the chik report, which was proved as Ext. Ka-3. This witness further scribed the G.D. and proved its copy as Ext. Ka-4. PW-6 is S.I. Indradev Shukla, who conducted the investigation on 18.05.2009. He copied the FIR, inquest report and other papers in his case diary on 27.05.2009. He recorded the statements of Imarti Devi, informant Deen Dayal, Jhanjhan Lal and Monika and inspected the spot. He prepared the site plan and proved it Ext. Ka-5. He further recorded the statements of Smt. Ramwati, w/o Tej Shankar, Umashankar, Smt. Ramwati w/o Tularam, Munna Lal, Chhotey Lal, Chetram, Lokram and the accused persons and submitted final report against the accused persons. PW-7 prepared the inquest report, which was proved as Ext. Ka-6. 7. After investigation, a final report was submitted against the accused persons, the learned lower court on perusal of the final report summoned the accused persons to face trial. 8. Charges were framed against the accused persons, who denied the charges and claimed trial. 9. PW-7 prepared the inquest report, which was proved as Ext. Ka-6. 7. After investigation, a final report was submitted against the accused persons, the learned lower court on perusal of the final report summoned the accused persons to face trial. 8. Charges were framed against the accused persons, who denied the charges and claimed trial. 9. The learned lower court after hearing the learned counsel for the parties and perusal of the record awarded the sentence as mentioned in para -1 of the judgment. 10. Feeling aggrieved the accused have come up in appeal. 11. I have heard Shri Jitendra Pal Singh, learned counsel for the appellants, learned Additional Government Advocate and perused the trial court record. 12. Learned counsel for the appellants has submitted that this is a case of no evidence, in which even the police had submitted final report, but the learned lower court has wrongly convicted the accused persons. 13. On the other hand learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the witnesses. He has further contended that there was nothing to show that the accused have been falsely implicated and the appeal is liable to be dismissed. 14. As far as the delay in lodging the first information report is concerned, rape was said to have been committed on 17.04.2009, which has been explained by the prosecution that FIR for committing rape was not lodged because the informant thought that the reputation of the family of the victim was at stake. This is one aspect of the matter. 15. So far as the factum of suicide is concerned, suicide was committed on 19.04.2009. The informant has stated that after cremation, he went to lodge the report, but it was not lodged. Hence he submitted an application under section 156(3) Cr.P.C. delay of four days casts a shadow of doubt on the prosecution case. 16. As far as the occurrence is concerned, this is not a case of direct evidence. In case of circumstantial evidence, it is a duty of the prosecution to collect such materials so as to form a complete chain of links. 16. As far as the occurrence is concerned, this is not a case of direct evidence. In case of circumstantial evidence, it is a duty of the prosecution to collect such materials so as to form a complete chain of links. If any link is missing and the chain is broken, obviously the prosecution fails, but inference of guilt can be justified when all the incriminating circumstances are found to be compatible with the innocence of the accused or the guilt of any other person. Thus, circumstances have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances as had been laid down by the Hon'ble Apex Court in 2004 Supreme Court Cases (Criminal) 126, State of Haryana vs Jagbir Singh and another. 17. There is no direct evidence in this case about the crime and the prosecution story rests on circumstantial evidence. Thus, it is mandatory on the part of prosecution to prove the circumstances from which the conclusion of guilt has to be drawn. 18. As far as the evidence of rape on the victim on 17.01.2009 is concerned, there is neither any medical evidence to this effect nor any oral evidence except the statements of mother and brother of the victim, who have stated that when the victim returned home after the incident, she said that the accused Rakesh had raped her. Thus, there is no evidence of rape as against the accused Rakesh. 19. As far as the evidence of abetment of suicide is concerned, none of the witnesses have stated that they had heard what the accused had commented on the victim. However, PW-1 Deen Dayal has stated that on 19.04.2009 at 7.00 a.m. the accused persons asked the victim that she had not died till then. After returning, she drunk insecticide. In cross-examination, this witness has stated that the medicine, which was sprinkled on Laheta was drunk by the deceased, which medicine was purchased 4-5 days before the incident. PW-2 mother of the victim has stated that medicine drunk by the victim was 200 ml, which was brought by her husband two years back. Jhanjhan Lal, PW-3 is also the brother of the victim, who has stated that he could not know as to which medicine was consumed by his sister. PW-2 mother of the victim has stated that medicine drunk by the victim was 200 ml, which was brought by her husband two years back. Jhanjhan Lal, PW-3 is also the brother of the victim, who has stated that he could not know as to which medicine was consumed by his sister. Reverting back to the statement of PW-1 Deen Dayal, a perusal of his statement reveals that he did not know as to what was written in the application filed by him under section 156(3) Cr.P.C. PW-2 Imarti Devi, mother of the victim in cross-examination has stated that she did not witness any incident, but she is telling whatever her daughter told her. PW-3 Jhanjhan Lal has stated that he did not know what medicine was consumed by his sister. The empty bottle of the medicine or insecticide whatever is it, which was said to have been consumed by the deceased was not handed over to the Investigating Officer. PW-6 S.I. Indradev Shukla has stated that during investigation, the incident was found to be incorrect. The Investigating Officer has further stated that although the viscera was preserved, but as he did not think it fit to send the viscera for chemical examination, hence, he has not sent the viscera. As per post-mortem report since cause of death of the victim could not be ascertained, hence her viscera was preserved. Viscera report is not on record, because of which cause of the death could not be ascertained. Thus, in the absence of factum of death as to how the deceased died, the accused persons cannot be held guilty under section 306 IPC. There is no evidence as to how the deceased died and what was the cause of her death. 20. The learned lower court mislead itself by basing its finding on oral evidence without ascertaining the cause of death of the deceased. The prosecution has miserably failed to prove the case. Hence, the judgment has to be set aside. 21. Thus, what has been stated and discussed above, I conclude that the prosecution case is bundle of false allegations and improbable facts. Thus, the learned trial court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. 22. Thus, the learned trial court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. 22. Hence, the impugned judgment of conviction and sentence dated 18.02.2013 passed by Shri Chandrodya Kumar, learned Additional District & Sessions Judge, Court No. 2, Pilibhit in Sessions Trial No. 94 of 2011 (State vs Rakesh Kumar and others), arising out of Case Crime No. 631 of 2009, under sections 376 and 306 IPC, Police Station Jahanabad, district Pilibhit is hereby set aside. 23. Accordingly, the appeal is allowed. 24. The appellants- Om Wati and Rakesh Kumar are on bail. Their bail bonds are cancelled and the sureties are discharged. However, the both appellants are directed to comply with the provision of Section 437-A Cr.P.C. 25. Let a copy of this order be sent to the trial court concerned for compliance of the order. ——————