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2018 DIGILAW 858 (ALL)

RAJKUMAR KAHAR v. STATE OF U. P.

2018-04-10

BALA KRISHNA NARAYANA, RAJIV GUPTA

body2018
JUDGMENT : Heard Sri Nitin Sharma, learned counsel for the appellant, Sri Saghir Ahmad, assisted by Sri J.K. Upadhyay and Sri Virendra Pratap Singh, learned A.G.As for the State/respondent and perused the record. This criminal appeal has been filed by the appellant Raj Kumar Kahar challenging the legality and validity of the impugned judgment and order dated 31.08.2013, passed by Additional Sessions Judge, Court No.1, Gorakhpur, in S.T. No. 77 of 2009 (State Vs. Raj Kumar Kahar), arising out of Case Crime No. 1097 of 2008, by which the appellant has been convicted and sentenced to imprisonment for life under Section 376 IPC and a fine of Rs.10,000/- and in default of payment of fine, three years additional rigorous imprisonment. Briefly stated the facts of the case are that P.W.1 informant Shatrughan Nishad gave a written complaint at P.S.- Belipar, District-Gorakhpur on 16.09.2008 alleging therein that he is a resident of village Ekla Bazar, P.S.- Belipar, District-Gorakhpur and on 16.09.2008 at about 8:30 p.m. while appellant, Raj Kumar Kahar, son of Dholai, who is the resident of the same village as the informant, had come to his house to watch television at about 8:30 p.m. He took away his three years old daughter, Km. Saraswati to a nearby field and after committing rape on her, he fled away leaving her in the house. His daughter Km. Saraswati narrated the entire incident to his mother. On coming to know about the occurrence, a large number of villagers had gathered and beat the appellant Raj Kumar Kahar, inflicting multiple injuries on him and thereafter, he was taken to the hospital. On the basis of the aforesaid written report (Ex.Ka-1), Case Crime No. 1097 of 2008 under Section 376 I.P.C. was registered against the appellant Raj Kumar Kahar. The check F.I.R. (Ex.Ka.2) and relevant G.D. Entry (Ex.Ka.3) were prepared on the same day by P.W.3 Head Constable Manoj Kumar Tripathi. After registration of the F.I.R., the investigation of the case was entrusted to P.W.7 S.I. Lalji, who went to the hospital and met the victim and tried to record her statement. He also inspected the place of occurrence and prepared its site plan (Ex. Ka-7). Victim Km. Saraswati was medically examined on 17.09.2008 in District Hospital, Gorakhpur by P.W.5 Dr. Sushma Jaiswal, who also prepared her injury report (Ex.Ka.4) and her supplementary injury report (Ex.Ka.5). The injury report of the victim Km. He also inspected the place of occurrence and prepared its site plan (Ex. Ka-7). Victim Km. Saraswati was medically examined on 17.09.2008 in District Hospital, Gorakhpur by P.W.5 Dr. Sushma Jaiswal, who also prepared her injury report (Ex.Ka.4) and her supplementary injury report (Ex.Ka.5). The injury report of the victim Km. Saraswati indicates that her breasts were not developed, her abdomen was soft and no abnormality was found therein. Her supplementary report (Ext.Ka.5) is as follows :- 1) No spermatozoa seen. 2) No gonococci seen, plenty of R.B.C. seen. 3) Right elbow- around elbow joint centre of occipital of medial epicondyle not appear. Medial epicondyle present are not fused with the corresponding part. 4) Right knee- around knee joint all epiphysis not fused. 5) Right wrist- Four carpal bone present. Lower end of radius and ulna ephiphysis not fused. The doctor who had prepared the supplementary report of the victim was of the view that definite opinion of rape could not be given. The injuries of the appellant Raj Kumar were also examined on 17.09.2008 at about 12:50 a.m. by P.W.8 Dr. N.P. Gupta, District Hospital-Gorakhpur who prepared his injury report (Ex.Ka.8). His medical examination disclosed following injuries on his person:- 1) Contusion of 6.0 cm x over the upper lip 2) Contusion of 5.0 cm x over the lower lip 3) Abraded contusion of 3.0 x 2.0 cm on the left side of face just below jaws 4) Abraded contusion of 3.0 x 2.0 cm over the chin 5) Contusion of 3.0 x 3.0 cm over the left shoulder joint 6) Contusion of 6.0 x 4.0 cm on the front of left thigh 6.0 cm above the left knee joint 7) Contusion of 6.0 x 5.0 cm over the lower back mid region 8) Penile swab taken and handed over to the constable concerned and referred to Pathology Deptt. for examination 9) Contusion of 4.0 x 2.0 cm over the dorsum of left hand kept under observation and x-ray of left hand advised. Nature of injury :- Simple except injury no. 9 and x-ray of left hand advised. Injuries caused by hard and blunt objects. Injuries described as fresh. The investigation of the case was transferred to P.W.6 S.I. Rajeshwar Pathak, who after completing the investigation, filed charge-sheet under Section 376 I.P.C. against the appellant before the Chief Judicial Magistrate, Gorakhpur. Nature of injury :- Simple except injury no. 9 and x-ray of left hand advised. Injuries caused by hard and blunt objects. Injuries described as fresh. The investigation of the case was transferred to P.W.6 S.I. Rajeshwar Pathak, who after completing the investigation, filed charge-sheet under Section 376 I.P.C. against the appellant before the Chief Judicial Magistrate, Gorakhpur. The case was committed for trial of the accused to the Court of Sessions Judge, Gorakhpur, where it was numbered as S.T. No. 77 of 2009 and made over from there for trial to the court of Additional Sessions Judge, Court No.1, Gorakhpur, who after hearing the prosecution as well as the defence on the point of charge prima facie found ground for framing charge against the appellant under Section 376 I.P.C. Accordingly, he framed charge u/s 376 I.P.C. against the appellant who abjured the charge and claimed trial. The prosecution in order to prove its case against the appellant produced as many as 11 witnesses. P.W.1 informant Shatrughan Nishad, P.W.2 Bandana Devi, mother of the victim and P.W.4 Ram Bahal, neighbour of the informant were examined as witnesses of fact while P.W.3 Head Constable Manoj Kumar Tripathi, who had prepared and proved the check F.I.R., P.W.5 Dr. Sushma Jaiswal, who had examined the injuries of the victim, P.W.6 S.I. Rajeshwar Pathak, second Investigating Officer of the case, P.W.7 S.I. Lalji, first Investigating Officer, P.W.8 Dr. N.P. Gupta, who had examined the injuries of the appellant, P.W.9 Constable Ram Kishun Yadav, who had proved the G.D. Entry (Ex.Ka.3), P.W.10 Dr. Vijay Pratap Singh, who had proved the age of the victim and P.W.11 Dr. J.P. Singh, who had proved the age certificate of the victim, were produced as formal witnesses. The accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and further stated that he had a vegetable shop in the same village in which P.W.1 informant Shatrughan Nishad was residing. On the request of his wife, he used to deliver vegetables and other household articles at his house. The accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and further stated that he had a vegetable shop in the same village in which P.W.1 informant Shatrughan Nishad was residing. On the request of his wife, he used to deliver vegetables and other household articles at his house. The informant however, suspected that his wife was having an illicit relationship with him on account of which when on the date of the incident, somebody told him that the appellant had visited his house, he came to his house and beat him with kicks, fists and lathi causing serious injuries to him and when his condition got serious, he was taken to the hospital. He also stated that the local police had colluded with the informant in falsely implicating him in the present case. The defence examined Markandey Prasad, Rajmangal Paswan and Ramkishun Nishad as D.W.1, D.W.2 and D.W.3. Learned Additional Sessions Judge, Court No.1 Gorakhpur, after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant under Section 376 I.P.C. and awarded the aforesaid sentence to him. Hence, this appeal. Sri Nitin Sharma, learned counsel appearing for the appellant has vehemently submitted that the present case is based upon the circumstantial evidence and the prosecution has failed to prove its case by producing any reliable and legally admissible evidence indicating that the appellant was perpetrator of the crime and hence, the recorded conviction of the appellant on the basis of testimony of solitary witness P.W.1 informant Shatrughan Nishad, the other two witnesses of fact having failed to support the prosecution case during the trial who had neither seen the appellant taking away his daughter from his house nor returning with her daughter to his house and leaving her there, therefore, impugned judgment and order which is per se illegal is liable to be set aside. Learned counsel for the appellant has further submitted that there are glaring and material contradictions in the testimony of P.W.1 informant Shatrughan Nishad which unequivocally indicate that he had no knowledge about the identity of perpetrator of the crime. The prosecution also failed to explain by producing any cogent evidence with regard to the place of occurrence. Learned counsel for the appellant has further submitted that there are glaring and material contradictions in the testimony of P.W.1 informant Shatrughan Nishad which unequivocally indicate that he had no knowledge about the identity of perpetrator of the crime. The prosecution also failed to explain by producing any cogent evidence with regard to the place of occurrence. Moreover, P.W.2 Bandana Devi, mother of the victim who according to the F.I.R. recitals and the testimony of P.W.1 informant Shatrughan Nishad, was the witness of the appellant having left the victim in her house after committing the offence of rape on her, having failed to support the prosecution case in her examination-in-chief itself and declared hostile, no evidence worth of any credence is left on record indicating at the complicity of the appellant. Learned counsel for the appellant has lastly submitted that neither the recorded conviction of the appellant nor the sentence of imprisonment for life awarded to the appellant can be sustained and is liable to be set aside. Per contra, Sri Saghir Ahmad, learned A.G.A. appearing for the State has vehemently argued that it is fully established from the testimony of P.W.1 informant Shatrughan Nishad that the appellant had brought back the victim to her house after committing rape on her. Moreover, the medical evidence on record fully corroborates the prosecution case. It is established from the evidence of P.W.1 as well as that of the two Investigating Officers that the appellant was the author of heinous act perpetrated upon a three years old girl. The prosecution fully succeeded in proving the charge framed against the appellant by leading cogent and reliable evidence. Therefore, no interference with the impugned judgment and order is required and as such, this appeal, which lacks merit, is liable to be dismissed. We have heard learned counsel appearing for the parties and perused the entire lower court record. The only question which arises for our consideration is that whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts or not, specially in view of the admitted factual scenario that no one had seen the appellant either taking away the informant's daughter from her house or returning her back to her house after committing rape on her. The instant case is based wholly upon circumstantial evidence. The instant case is based wholly upon circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , it was held by the Apex Court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis of ignoring any serious infirmity or lacuna in the case of the prosecution. The Apex Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused". Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the Court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it. Now, we propose to examine the evidence available on record on the touchstone of the aforesaid principles. While dealing with a case of circumstantial evidence, the Court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it. Now, we propose to examine the evidence available on record on the touchstone of the aforesaid principles. The prosecution case as already narrated hereinabove is that the appellant had come to the informant's house for watching television on 16.09.2008 at about 8:30 p.m. While watching television, he suddenly lured away his three years old daughter with him to a nearby field on the promise of buying biscuits for her and committed rape on her and thereafter, he returned with the girl to her home and left her there. The entire incident was narrated by the victim to her mother and on coming to know about the incident, a large number of villagers had gathered and gave a sound beating to the appellant Raj Kumar and when his condition became serious, he was taken to the hospital for treatment. In order to establish the guilt of the appellant, the prosecution had examined P.W.1 informant Shatrughan Nishad, P.W.2 Bandana Devi and P.W.4 Ram Bahal as the witnesses of fact. It is noteworthy that P.W.2 Bandana Devi, mother of the victim and P.W.4 Ram Bahal had both failed to support the prosecution case in their examinations-in-chief during the trial and were declared hostile. It is noteworthy that P.W.2 Bandana Devi, mother of the victim and P.W.4 Ram Bahal had both failed to support the prosecution case in their examinations-in-chief during the trial and were declared hostile. P.W.2 was cross-examined by D.G.C. (Criminal) with the permission of trial Judge and on being contradicted with her statements recorded under Section 161 Cr.P.C. during the investigation in which she had supported the prosecution case, she categorically denied that the Investigating Officer had ever recorded her statement and she had no explanation as to how the Investigating Officer prepared her statement under Section 161 Cr.P.C. It is noteworthy that the prosecution did not draw the attention of P.W.7 S.I. Lalji, Investigating Officer of the case, who had allegedly recorded the statement of P.W.2 Bandana Devi under Section 161 Cr.P.C., in which, she had supported the prosecution case to the facts deposed by her in examination-in-chief and hence, it cannot be said that the prosecution successfully proved her statement under Section 161 Cr.P.C. As far as P.W.4 Ram Bahal is concerned, he was also cross-examined by D.G.C. (Criminal) with the permission of the Court after he failed to support the prosecution case during the trial and was also declared hostile and when his attention was drawn to his statement recorded by the Investigating Officer u/s 161 Cr.P.C., he denied that the Investigating Officer had ever recorded his statement. There is nothing in the evidence of P.W.7 S.I. Lalji which may show that his attention was invited by the D.G.C. (Criminal) to the aforesaid portion of the cross-examination portion of P.W.4 Ram Bahal. Moreover, the prosecution failed to elicit anything out of his cross-examination which may even remotely support the prosecution case. Thus, we are now left with the testimony of P.W.1 informant Shatrughan Nishad alone and after very carefully perusing the same, we are constrained to observe that this witness has throughout been inconsistent, vacillating and has kept changing his version with regards to the facts of the case although he in his examination-in-chief categorically stated that on the date of occurrence, he had gone to attend the Brahm Bhoj, leaving his wife and his minor daughter Saraswati aged about 3 and ½ years in his house. When he returned after taking the dinner, he found that his daughter Km. When he returned after taking the dinner, he found that his daughter Km. Saraswati was missing, on which he inquired from his wife about the whereabouts of her daughter, on which she told him that the accused-appellant Raj Kumar had come to the house and while watching television, he had taken away Km. Saraswati on the pretext of getting biscuits for her, then he went out in search of appellant Raj Kumar to his shop and then to his house but he did not find him. When after searching his daughter, he returned to his house, he found that the appellant Raj Kumar had fled away from his house after leaving his daughter. Thereafter, he took his daughter, who looked very scared and whose undergarment was bloodstained and her private organ was bleeding, on the roof of the house. When his wife came there and saw her daughter, she started weeping. In the meantime, several villagers also arrived at his house and when they came to know about the incident, they all went to the house of the appellant Raj Kumar and on founding Raj Kumar hiding under a cot in his house, in a spell of anger, they dragged the appellant Raj Kumar out from his house and gave him a sound beating and when they realized that the appellant Raj Kumar would die of the injuries received by him in the beating, they took him to the hospital for treatment. Thereafter, he took his daughter to the police station, where he lodged the F.I.R. of the aforesaid case. From the perusal of the facts stated by P.W.1 informant Shatrughan Nishad in his examination-in-chief, it is fully proved that he had neither seen the appellant taking away his daughter from his house nor the appellant returning to his house with his daughter after committing the heinous offence and leaving her in his house. From the perusal of the facts stated by P.W.1 informant Shatrughan Nishad in his examination-in-chief, it is fully proved that he had neither seen the appellant taking away his daughter from his house nor the appellant returning to his house with his daughter after committing the heinous offence and leaving her in his house. Another very interesting aspect of this matter is that although P.W.1 informant Shatrughan Nishad in the F.I.R. as well as in his examination-in-chief has categorically stated that the entire information about the appellant enticing away his daughter from his house and then returning with her to his house and fleeing away after leaving her in his house, was given to him by his wife but he in his cross-examination took a U-turn and deposed that he had lodged the F.I.R. against the applicant not on the basis of the information tendered to him by his wife but on his having himself seen the appellant. The evidence of P.W.1 informant Shatrughan Nishad is neither consistent nor clinching and wholly insufficient to convict the appellant for the offence with which he has been charged. Thus, in our opinion nothing turns on the testimony of P.W.1. Shatrughan Nishad. There is another aspect of the matter, which indicates that no effort was made by the prosecution to prove its case beyond all reasonable doubts. The Investigating Officer claims that he had inspected the place of occurrence at the behest of the P.W.1 informant Shatrughan Nishad and prepared the site plan of the spot but after going through the evidence of P.W.1 informant Shatrughan Nishad, P.W.3 Head Constable Manoj Kumar Tripathi and P.W.7 S.I. Lalji, we have not been able to find out the basis on which the place of occurrence was fixed and inspected by the Investigating Officer at the behest of the informant. It is not a case of the prosecution that the appellant Raj Kumar had made any disclosure statement before the Investigating Officer disclosing the place of occurrence. We have already noted that P.W.1 informant Shatrughan Nishad had neither seen the appellant Raj Kumar taking away his daughter nor leaving her in his house and hence, it cannot be said that he could have any knowledge about the place of occurrence. We have already noted that P.W.1 informant Shatrughan Nishad had neither seen the appellant Raj Kumar taking away his daughter nor leaving her in his house and hence, it cannot be said that he could have any knowledge about the place of occurrence. P.W.1 informant Shatrughan Nishad had also deposed that when the victim was left by the appellant Raj Kumar in his house, her private parts were bleeding and her undergarment had bloodstains but from the evidence of P.W.6 S.I. Rajeshwar Pathak, it is clear that he had not handed over any bloodstained undergarments of the victim to him. Even the medical evidence on record does not fully corroborate the prosecution allegation of rape. P.W.5 Dr. Sushma Jaiswal, who had examined the victim Km. Saraswati after the incident and prepared her medical report (Ext.Ka.4) as well as her supplementary report (Ext.Ka.5) has deposed on page 36 of the paper book in her cross-examination that swelling and redness was present in labia majora and labia minora. Vaginal smear taken out and sent to pathologist for examination. The mention of slight perineum tear by her could be as a result of injury caused as a result of victim falling on the ground or caused by any other person inflicting injury. She also deposed on the same page that it was not possible for her to give any definite opinion regarding rape being committed on the victim. Thus, upon a wholesome consideration of the facts of the case and a thorough analysis and scrutiny of the evidence available on record, we do not find that the prosecution has been able to prove its case against the appellant beyond all reasonable doubts. For the aforesaid reasons, neither the recorded conviction of the appellant nor the sentence of life imprisonment awarded to the appellant can be sustained. This appeal succeeds and is allowed. The accused-appellant Raj Kumar Kahar is acquitted of the charge framed against him. He is in jail. He shall be released forthwith unless he is wanted in some other case subject to his complying with the provision of Section 437-A of Cr.P.C. There shall be however no order as to costs.