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Allahabad High Court · body

2019 DIGILAW 450 (ALL)

Rohit Kumar Vishwakarma v. State Of U. P.

2019-02-20

SIDDHARTH

body2019
ORDER : Siddharth, J. 1. Heard Sri Sanjay Singh, learned Counsel for the appellant and leaned AGA for the State. 2. This criminal appeal is directed against the judgment and order dated 23.7.2013 passed by Sessions Judge, Allahabad in S.T. No. 04 of 2013, arising out of Case Crime No. 229 of 2011, under Section 376 (D), Police Station Karchhana, District Allhabad. 3. The appellant has been convicted under Section 376 (D) IPC and sentenced to 20 years' rigorous imprisonment and fine of Rs.10,000/-and in default of payment of fine one year's simple imprisonment has been directed. 4. The prosecution story in brief is that informant, Ranglal Gupta, lodged the first information report dated 02.10.2011 at 00:45 at Police Station Karchhana, alleging that his daughter, Pinki, aged about 16 years, who is student of Class Xth, had gone to the side of the house on 01.10.2012 at 8:00 p.m. to attend the call of nature and then she was abducted by Rohit Kumar and Babau @ Suryadev and after gagging her mouth, they took her to Khandahar and forcibly committed rape on her. When she gained consciousness, she came to the house and informed the member of the family. The investigation was conducted by the police and charge-sheet under Sections 363, 366, 376, 342 IPC was submitted before the Magistrate and after committed of the case charges were, accordingly, framed by the trial court. The accused denied charges and sought trial. 5. The prosecution filed documents regarding the age of the victim, recovery memo of clothes of the victim and the charge-sheet and they were formerly proved. Statement of victim was recorded as PW-1 and she stated in her examination-in-chief that at about 8 p.m., when she went towards Khandahar, two boys forcibly dragged her inside and their intention appeared to be of committing rape. She raised alarm and after freeing herself from their clutches, she ran towards her house and informed the members of family. Being dark, she could not see the faces of the two boys. In court, she denied that accused, Rohit Kumar, caught her on that night or did anything wrong with her. Her father and villagers went to the police station, but she did not went there. Being dark, she could not see the faces of the two boys. In court, she denied that accused, Rohit Kumar, caught her on that night or did anything wrong with her. Her father and villagers went to the police station, but she did not went there. On the next day, police came and took her for medical examination and also to Kutcheri, where her statement was recorded before the Magistrate and her thumb impression was taken thereon. The victim, PW-1, was declared hostile. In her cross-examination, she stated that the Investigating Officer did not recorded her statement and she disowned her statement under Section 161 Cr.P.C. She further stated that the policemen took her to Kutcheri after one week and threatened her to make statement against the accuseds and therefore, she took the name of the appellant. In her statement under Section 164 Cr.P.C., she had clearly implicated both the accuseds for the offence of rape. 6. PW-2, Ranglal Gupta, stated in his examination-in-chief that the name of the his daughter is Pinki Devi. At the time of incident, she was aged about 19 years. On the fateful day, her daughter went outside the house at 8:00 p.m. for attending the call of nature and she did not came back after long time. When she came back, she informed that someone caught her hand and started pulling her to Khandahar, when she raised alarm, he ran away after leaving her there. In his cross-examination, PW-2 stated that what her daughter told him, he told to the police and the police said that you give a written report and then he stated that he is illiterate and cannot write. Thereafter, villagers got his signatures on paper, which is before him, but he does not knows what was written on the paper. He further denied that the appellant committed any wrongful act with his daughter. This witness was also declared hostile. In his cross-examination, he denied his statement under Section 161 Cr.P.C. and did not even informed, who were the persons, who accompanied him to the police station. On the question of court, he stated that after 3-4 days, appellant was arrested by the police. He never gave any information to the police and whatever he stated was under pressure. 7. In his cross-examination, he denied his statement under Section 161 Cr.P.C. and did not even informed, who were the persons, who accompanied him to the police station. On the question of court, he stated that after 3-4 days, appellant was arrested by the police. He never gave any information to the police and whatever he stated was under pressure. 7. Santlal Gupta was examined as PW-3, who stated that the victim is his niece, but he denied any offence by the appellant against the victim. He was also also declared hostile on the application of the prosecution. He also denied statement under Section 161 Cr.P.C. and his presence in the village at the time of incident. 8. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. and he denied the charges against him and stated that he has been falsely implicated. 9. The trial court has convicted the appellant on the basis of statement of the victim under Section 164 Cr.P.C. and the recital in the FIR which alleged offence of rape against the appellant. The conviction is based on the fact that the appellant has not stated anything why he has been falsely implicated. He has only stated that he has been falsely implicated, but not produced any evidence as to why, he has been implicated. 10. Learned counsel for the appellant has submitted that the conviction of the appellant, only on the statement of the victim under Section 164 Cr.P.C., is unwarranted under law. In her statement before the court, the victim disowned her statement under Sections 161 and 164 Cr.P.C. She refused to recognize te appellant in court. Once, the victim disowned her statement under Section 164 Cr.P.C., it was not open for the court below to record the judgment of conviction on its basis. Although the victim was declared hostile, but from her cross-examination also nothing could be extracted, which could go to implicate the appellant. The other prosecution witnesses PW-2 and PW-3, who were the father and elder uncle of the victim respectively also, did not supported the prosecution case. There is contradiction in the FIR version of the alleged crime and the statement of the victim before the court. 11. The medical evidence on record has not been discussed by the court below. The other prosecution witnesses PW-2 and PW-3, who were the father and elder uncle of the victim respectively also, did not supported the prosecution case. There is contradiction in the FIR version of the alleged crime and the statement of the victim before the court. 11. The medical evidence on record has not been discussed by the court below. From the record of the trial court, it is clear from the medical report that the victim is aged about 18 years and from her internal and external examination, no injury was found on her body. The medical examination of victim was conducted on the date of FIR itself and the doctor has not given any definite opinion of rape. Even in the pathological report, no trace of any incriminating fluid was found. 12. The finding of the court below that the accused in his statement under Section 313 Cr.P.C. did not stated why he has been falsely implicated and he did not produced any witness to prove why he has been falsely implicated, is unwarranted finding as per the law. 13. In criminal cases, the burden of proof is on the prosecution to prove the offence alleged and it is not for the accused to prove his innocence. This court in the case of Bhoora Yadav and others Vs. State of U.P., Manu/UP/0186/2016, has held that where the testimony of the prosecutrix was suffering from various inconsistency and her statement before police and the court were at variance, the conviction on such evidence is not safe. Paragraph Nos. 10 and 11 of the aforesaid judgment are relevant in the present case, which are as follows:- “10. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508 . 11. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her persons even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & others Vs. State of Maharashtra, (1999) 1 SCC 220 .” 14. A perusal of the record of the court below shows that prosecution has not examined any other witness except PWs 1, 2 and 3 in this case. Neither the doctor nor the formal police witnesses were examined and therefore, the record of investigation and the documents regarding medical examination of the victim were not proved before the court below. 15. In view of the above factual and legal position of this case, the judgment and order of the court below cannot be sustained. Accordingly, the judgment and order of conviction passed by the court below is set aside. Appellant is directed to be set at liberty forthwith. 16. This criminal appeal is allowed. 17. The record of this case be sent back to the court below for necessary follow-up action forthwith.