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2018 DIGILAW 2001 (ALL)

Lallan Ahir v. State Of U. P.

2018-09-14

RAJESH SINGH CHAUHAN

body2018
JUDGMENT : 1. Heard Sri Pawan Kumar Mishra, Sri Rajeiu Kumar Tripathi and Sri Rama Kant Dixit, learned counsel for the revisionists in Criminal Revision No.374 of 1985 and Sri Rajeiu Kumar Tripathi and Sri Pramod Kumar Mishra, learned counsel for the revisionists in Criminal Revision No.471 of 1985, while Sri Aniruddha Singh, learned Additional Government Advocate has advanced his arguments in both the criminal revisions on behalf of the State. 2. In both the criminal revisions filed under Sections 397/401 Cr.P.C., the order impeached are the judgment and order dated 24.11.1984 passed by the then Assistant Session Judge, Bahraich in Session Trial No.173 of 1983 convicting the accused Ram Khelawan @ Nankau, Kashi Ram, Budhai, Kesho Ram, Lallan Ahir and Pati Ram for the offence punishable under Section 366 I.P.C. and sentencing them to undergo four years rigorous imprisonment. Further, the accused Ram Khelawan @ Nankau, Kashi Ram were also convicted for the offence punishable under section 376 I.P.C. and sentencing them to undergo five years rigorous imprisonment and the trial court further observed that the sentence of accused Ram Khelawan @ Nankau and Kashi Ram shall run concurrently. The second order under challenge is the judgment and order dated 24.07.1985 passed by the then Session Judge, Bahraich in Criminal Appeal No.141 of 1984: Lallan Ahir and Budhai vs. State of U.P., Criminal Appeal No.142 of 1984: Kesho Ram vs. State of U.P. and Criminal Appeal No.143 of 1984; Ram Khelawan @ Nankau, Kashi Ram and Pati Ram vs. State of U.P., whereby the appellate court was pleased to acquit the accused Pati Ram but uphold the order of the learned trial court in toto so far as the remaining accused are concerned. 3. At the outset, it is to be noted that the Criminal Appeal No.374 of 1984 was admitted by this Court vide order dated 29.07.1985 and the accused persons, namely, Lallan Ahir, Budhai and Kesho Ram were granted bail accordingly. Likewise, the Criminal Appeal No.471 of 1985 was admitted by this Court vide order dated 19.09.1985 and the accused persons, namely, Ram Khelawan @ Nankau, Kashi Ram were granted bail accordingly. 4. However, the prosecution story has been narrated in detail in the order of the trial court but the brief facts of the incidence in question are indicated here-in-below. 5. 4. However, the prosecution story has been narrated in detail in the order of the trial court but the brief facts of the incidence in question are indicated here-in-below. 5. The First Information Report was lodged by Sri Sohan Lal, who happens to be grand-father of the prosecutrix. According to the prosecution story, on the relevant night i.e. 9/10.12.1982 Sri Sohan Lal, the informant had come to the residence of his son Sri Raghunandan Prasad, who resides at village Dedaura. Further, in the intervening night between 09/10.12.1982, the prosecutrix Km. Suggi was kidnapped by adducing her by the accused persons, namely, Budhai, Lallan Ahir and Kesho Ram and the first informant started searching her and reached at Badle crossing where he was informed by the prosecution witnesses, namely, Babboo son of Khalil and Babadin that the accused Budhai, Kesho Ram and Lallan Ahir have taken his grand daughter towards Bahraich by bus. Thereafter, the first informant had kept on searching her till 11.12.1982 but when he could not trace his grand daughter, he lodged the First Information Report at Police Station-Sonwa, District-Bahraich bearing Case Crime No.113 of 1982, under Sections 363 & 366 I.P.C. on 11.12.1982, at 4:35 p.m. 6. It would be apt to note here that Sri Sohan Lal son of Baldev, the first informant, is the resident of village Dadaura. The accused Ram Khelawan @ Nankau and Pati Ram are father and son and are the resident of village Kudali, Police Station-Malhipur, the accused Kashi Ram is a resident of village Aitha, accused Budhai and Kesho Ram are the resident of village Dadaura whereas the accused Lallan Ahir is the resident of village Bhitiya Chichri. Raghunandan Prasad is the real son of the first informant (Sri Sohan Lal), who resides with his family in village Dadaura, which is Sasural of Raghunandan Prasad and the prosecutrix, aged about 13 years (at that point of time, as alleged by the first informant), is the daughter of Raghunandan Prasad and the grand daughter of the first informant Sri Sohan Lal. 7. On the basis of the aforesaid First Information Report, the investigation was started by Sub-Inspector Sri Dhananjay Singh and he visited the place of occurrence and recorded the statement of the first informant (Sri Sohan Lal) and other prosecution witnesses under Section 161 Cr.P.C. 8. On 21.01.1983, the Police Team recovered the prosecutrix Km. 7. On the basis of the aforesaid First Information Report, the investigation was started by Sub-Inspector Sri Dhananjay Singh and he visited the place of occurrence and recorded the statement of the first informant (Sri Sohan Lal) and other prosecution witnesses under Section 161 Cr.P.C. 8. On 21.01.1983, the Police Team recovered the prosecutrix Km. Suggi from the custody of the accused Pati Ram and thereafter got her medically examined by a lady doctor. Her statement was recorded under Section 161 Cr.P.C. and thereafter under Section 164 Cr.P.C. wherein she implicated the accused Ram Khelawan @ Nankau, Kashi Ram and Pati Ram for the offence under Section 366 I.P.C. and also Ram Khelawan @ Nankau and Kashi Ram for the offence under Section 376 I.P.C. The Investigating Officer thereafter prepared a site plan of the place of recovery and handed over the prosecutrix Km. Suggi in the custody of her father by preparing memo to that effect and finally submitted the charge-sheet against the accused persons under Sections 363/ 366/ 376 I.P.C. All the accused persons, namely, Lallan Ahir, Budhai, Kesho Ram, Ram Khelawan @ Nankau, Kashi Ram and Pati Ram were committed to the court of session to face their trial. 9. All the six accused persons examined under Section 313 Cr.P.C. and they denied the charges framed under Sections 363 & 366 I.P.C. and submitted that the entire prosecution story is false and concocted based on long standing enmity. Further, the accused Ram Khelawan @ Nankau and Kashi Ram denied the charges framed under Section 376 I.P.C. against them and submitted that they have been falsely implicated in the aforesaid case and the charges under Section 376 I.P.C. is baseless. 10. After examining all the prosecution witnesses and defence witness, namely, Puchey (DW-1), the learned trial court arrived at the conclusion that the prosecution was successful in proving the guilt of the accused persons for the charges framed under Sections 363/ 366/ 376 I.P.C. beyond all reasonable doubts and for which the accused deserve to be convicted. However, the learned trial court considered the age of the prosecutrix at about 17 years. Accordingly, the learned trial court convicted the accused Ram Khelawan @ Nankau and Kashi Ram, Budhai, Kesho Ram, Lallan Ahir and Pati Ram for the offence punishable under Section 366 I.P.C. and sentencing them to undergo four years rigorous imprisonment. However, the learned trial court considered the age of the prosecutrix at about 17 years. Accordingly, the learned trial court convicted the accused Ram Khelawan @ Nankau and Kashi Ram, Budhai, Kesho Ram, Lallan Ahir and Pati Ram for the offence punishable under Section 366 I.P.C. and sentencing them to undergo four years rigorous imprisonment. Further, the accused Ram Khelawan @ Nankau, Kashi Ram were also convicted for the offence punishable under section 376 I.P.C. and sentencing them to undergo five years rigorous imprisonment. 11. While arriving at the conclusion, the learned trial court has however considered the submission of learned counsel for the defence that the Investigating Officer had not prepared any site plan of the place from where the prosecutrix was forcibly kidnapped but it has been observed by the learned trial court that it was desirable on the part of the Investigating Officer to have made such site plan but this lacuna on his part will not least help the accused persons in any manner. The learned trial court was of the view that perusal of the statement of the prosecutrix recorded before the Magistrate under Section 164 Cr.P.C. also reveals that actually the prosecutrix was kidnapped from the field of "Arhar" of village Dedaura where she had gone for easing herself. The aforesaid statement of the prosecutrix is duly corroborating with the statement of the first informant as indicated in the First Information Report. 12. As per the learned trial court, the main point which was to be considered was whether the aforesaid six accused persons forcibly kidnapped the prosecutrix and further the accused Ram Khelawan @ Nankau and Kashi Ram ravished her against her will. As per the learned trial court, on this point the testimony of the prosecution witnesses namely PW-1 Sohan Lal, PW-2 Babboo and PW-3 Km. Suggi, the prosecutrix, is sufficient. 13. Learned trial court has observed that the PW-3, Km. Suggi the prosecutrix stated on oath in her Examination-in-Chief that she resided with her father in village Dedaura where her grand-father (PW-1) often used to go. At the relevant time at 5-00 a.m. (morning), she had gone to ease herself in the field where the accused Budhai, Lallan, Kesho, Pratap Narain and Guddu met her and these accused persons threatened her and forcibly kidnapped her. At the relevant time at 5-00 a.m. (morning), she had gone to ease herself in the field where the accused Budhai, Lallan, Kesho, Pratap Narain and Guddu met her and these accused persons threatened her and forcibly kidnapped her. Thereafter, she was taken to Pundli at the house of accused Pati Ram where she was kept under lock in the room where accused Nankau forcibly raped her against her will. 14. The learned trial court has however considered the arguments advanced on behalf of the defence that the prosecutrix was a consenting party and she did not raise any alarm when she was being kept in different places in certain intervals but the trial court observed that she did not raise alarm for reason that the prosecutrix was with three or more persons all the times and those persons did not allow the prosecutrix to be alone, therefore, she was afraid that if she would raise any alarm she would be in great trouble. The learned trial court has considered another arguments of learned counsel for the defence that when the prosecutrix was ravished by the accused Kashi Ram and Ram Khelawan @ Nankau, the force must have been applied by the accused persons and injury on private and other parts of the prosecutrix should have been caused, but the medical report of the prosecutrix shows that no such injury was found on the body of the prosecutrix when she was medically examined by a lady doctor. In view of the above, the learned counsel for the defence had suggested that she was not subjected to sexual intercourse by any of the accused. The learned trial court observed that this argument has got no substance inasmuch as the offence of rape has been defined under Section 375 I.P.C. and according to which a man is said to commit rape who has sexual intercourse with a women against her will and without her consent. The learned trial court has also observed that in the instant case all the ingredients of offence of rape as defined under Section 375 I.P.C. were being attracted. Besides, this is a case of continuous rape for more than one month, therefore, this plea of the defence may not be said to be tenable in the eyes of law. 15. The learned trial court has also observed that in the instant case all the ingredients of offence of rape as defined under Section 375 I.P.C. were being attracted. Besides, this is a case of continuous rape for more than one month, therefore, this plea of the defence may not be said to be tenable in the eyes of law. 15. Considering the statement of the prosecution, PWs and DW and relevant material on record, the learned trial court was pleased to hold all the accused persons guilty and accordingly passed the conviction order dated 24.11.1984. 16. Thereafter, three appeals bearing Criminal Appeal No.141 of 1984; Lallan Ahir and Budhai vs. State of U.P., Criminal Appeal No.142 of 1984; Kesho Ram vs. State of U.P. and Criminal Appeal No.143 of 1984; Ram Khelawan @ Nankau, Kashi Ram and Pati Ram vs. State of U.P. have been filed before the Court of the Sessions Judge, Bahraich and the learned Sessions Judge was pleased to consider the each facts and circumstances in detail, perused the material evidence on record vis-a-vis paper book of the lower court. Learned counsel for the appellants and the learned Government Advocate for the prosecution have also been heard. 17. Learned appellate court has given the same findings as has been given by the learned trial court and by agreeing with all the findings and observations of the learned trial court, the appeals of the accused persons were rejected vide judgment and order dated 24.07.1985. However, the learned appellate court i.e. the Sessions Judge, Bahraich was of the view that perusal of the relevant material on record and circumstances of the issue revealed that the accused-Pati Ram cannot be said to be an abductor, as no specific role was assigned to him, so his conviction was wrong. Accordingly, the learned appellate court acquitted the accused-Pati Ram from the charges levelled against him under Section 366 I.P.C.. It is noted here that the State has not assailed the acquittal order of the accused-Pati Ram nor the complainant/ informant has filed any revision etc. against acquittal order of the accused-Pati Ram. 18. Feeling aggrieved out of the judgment and order dated 24.11.1984 passed by the learned trial court and the judgment and order dated 24.07.1985 passed by the learned appellate court, the accused persons have filed the aforesaid revisions assailing the correctness of the aforesaid judgments and orders. 19. against acquittal order of the accused-Pati Ram. 18. Feeling aggrieved out of the judgment and order dated 24.11.1984 passed by the learned trial court and the judgment and order dated 24.07.1985 passed by the learned appellate court, the accused persons have filed the aforesaid revisions assailing the correctness of the aforesaid judgments and orders. 19. The arguments of learned counsel for the revisionists are more or less the same which have been advanced before the learned trial court and before the learned appellate court. 20. Learned counsel for the revisionists have submitted that the age of the prosecutrix was more than 17 years and since she was a consenting party, therefore, the conviction may not be awarded on her sole testimony. It has also been submitted by learned counsel for the revisionists that since the site plan was not prepared by the Investigating Officer, therefore, the prosecution story may not be said to be trustworthy. It has also been submitted that the facts and circumstances of the issue indicate that the offence of rape was not committed. 21. On the strength of the aforesaid submissions, learned counsel for the revisionists has placed reliance upon the judgment of Hon'ble Apex Court rendered in the case of Radhu vs. State of Madhya Pradesh reported in (2007) 12 SCC 57 . The relevant para-16 of the aforesaid judgment is being reproduced here-in-below:- "16. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutrix was indebted to Radhu's father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai's father Mangilal was indebted to Radhu's father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt." 22. Learned counsel for the revisionists has also placed reliance upon the judgment of Hon'ble Apex Court rendered in the case of State of Rajasthan vs. Babu Meena reported in AIR 2013 SC 2207 thereby submitting that since the statement of the prosecutrix was not worth acceptable, therefore, the conviction on the basis of her sole testimony is bad in law. The learned counsel for the revisionist placed reliance in para-8 of the aforesaid judgment, which is being reproduced here-in-below:- "8. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused." 23. The perusal of the prosecution case indicates that the accused persons have not been convicted on the sole testimony of the prosecution, but the testimony of other witnesses and material on record have also been appreciated by the trial court. The prosecutrix was recovered from the custody of two accused persons after about one month. In her statement recorded before the Police or Magistrate or the trial court she had reiterated that she was ravished without her consent forcibly and had been subjected to rape continuously till she was recovered by the police from their custody. 24. The prosecutrix was recovered from the custody of two accused persons after about one month. In her statement recorded before the Police or Magistrate or the trial court she had reiterated that she was ravished without her consent forcibly and had been subjected to rape continuously till she was recovered by the police from their custody. 24. I have perused the judgment of both the learned courts below and find that the conviction order has not been passed only on the sole testimony of the prosecutrix but on the basis of the testimony of other prosecution witnesses and material on record which are corroborating with each other. Apart from it, this Court is not adjudicating the appeal against conviction order. These conviction orders have been assailed by filing revisions under Sections 397/401 Cr.P.C. The revisional jurisdiction of the High Court is not so exhaustive as is in appellate jurisdiction. 25. A very relevant aspect of the matter is that this Court, while sitting in the revisional jurisdiction and exercising the power of revision, should not interfere with the concurrent findings of fact recorded by the learned Courts below unless there is a case of misreading of evidence or of non consideration of material and admissible evidence or of considering of such evidence which is not admissible at all. The Hon'ble Supreme Court in the case of State of Kerala Versus Puttumanaillath Jathavedan reported in (1999) 2 SCC 452 , has held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." 26. Similarly, the Hon'ble Supreme Court in the case of Duli Chand Vs. Delhi Admn. reported in (1975) 4 SCC 649 , has held as under:- "The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned additional Sessions Judge was correct. But even so the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse." 27. The judgment of the Hon'ble Supreme Court in the case of Duli Chand (supra) was approved and referred to in a subsequent judgment of the Hon'ble Supreme Court rendered in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others reported in (2004) 7 SCC 659 , in which the Hon'ble Supreme Court has held as under:- "The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power." 28. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power." 28. The perusal of the grounds taken in the revision does not make out any manifest illegality in the judgment of the learned courts below or in the order of conviction or any grounds which indicates grave miscarriage of justice. It is settled proposition of law as laid down by the Hon'ble Apex Court that the revisional jurisdiction of the High Court should not be exercised lightly or casually unless and until there exists a manifest illegality in the judgment or order of the learned courts below convicting the accused persons. 29. In the instant case, the findings of both the courts below i.e. the learned trial court as well as the learned appellate court are concurrent. Therefore, those judgments and orders are not liable to be interfered with by this Court. Besides, this court may not re-appreciate the evidences so adduced before the learned courts below as the evidences have already been appreciated by the learned trial court as well as by the learned appellate court and both the courts below have given their concurrent findings on the facts. Thus, the law that emerges on the issue is to be effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. Therefore, I find no infirmity, illegality or perversity in the conviction and orders dated 24.11.1984 passed by the Assistant Session Judge, Bahraich in Session Trial No.173 of 1983 and the judgment and order dated 24.07.1985 passed by the then Session Judge, Bahraich in Criminal Appeal No.141 of 1984: Lallan Ahir and Budhai vs. State of U.P., Criminal Appeal No.142 of 1984: Kesho Ram vs. State of U.P. and Criminal Appeal No.143 of 1984; Ram Khelawan @ Nankau, Kashi Ram and Pati Ram vs. State of U.P., whereby the appellate court was pleased to acquit the accused Pati Ram but uphold the order of the learned trial court in toto so far as the remaining accused persons are concerned. Both the revisions lack merit and deserve to be dismissed. Both the revisions lack merit and deserve to be dismissed. 30. Accordingly, both the revisions are dismissed and the orders of learned courts below (supra) are hereby upheld. Consequence to follow. 31. No order as to the costs. 32. Let the lower court record be remitted back along with a certified copy of this judgment to the trial court within a period of one month for necessary compliance.