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2019 DIGILAW 873 (ALL)

Munna Sahu v. State of U. P.

2019-04-05

SIDDHARTH

body2019
JUDGMENT : Siddharth, J. 1. Heard Sri. Amit Kumar Singh, learned counsel for the appellant and the learned AGA for the State. 2. This criminal appeal is directed against the judgment and order of conviction dated 17.08.2015 passed by Additional Sessions Judge/Fast Track Court, Chitrakoot in S.T. 60 of 2012, State v. Munna Sahu, convicting the appellant, under Sections 376, 504, 506, I.P.C. and sentencing him to undergo 7 years rigorous imprisonment and a fine Rs. 5,000/- and in case of default in payment of fine to undergo 1 year's further imprisonment for the offence punishable under Section 376, I.P.C; to undergo rigorous imprisonment for 2 years and a fine of Rs. 2500/- and in case of default in payment of fine to undergo 3 months further imprisonment for the offence punishable under Section 504, I.P.C., and to undergo rigorous imprisonment for 2 years and a fine of Rs. 2500/- and in case of default in payment of fine to undergo three months further imprisonment for the offence punishable under Section 506, I.P.C. with the direction that all the sentences shall run concurrently. 3. The prosecution case is that prosecutrix gave an application written by Harvansh Prasad of her village Rampur Kalyangarh, Police Station Manikpur, District Citrakoot dated 20.10.2012 to the Inspector Incharge stating that today at about 8 a.m. she went to the house of the appellant to return the glass wherein she took milk. When she reached there the appellant was alone. He stated that he has desi ghee and whether she wants to purchase the same. The prosecutrix replied that she will purchase 250 gms but when her husband will come back from Dharkundi tomorrow she will make the payment of the same. The appellant asked her to come and take out the ghee and he took her inside the room and stated that he is coming back with spoon. He quickly went outside the room and closed the door of courtyard and dragged her inside the room wherein she screamed, but he bolted the door from inside and forcibly raped her. He abused her and threatened her that in case she informs the police he will kill her. She went back to her house crying and screaming and informed about the incident at her home. The members of her family came in search of appellant but he was not found in the house. He abused her and threatened her that in case she informs the police he will kill her. She went back to her house crying and screaming and informed about the incident at her home. The members of her family came in search of appellant but he was not found in the house. She prayed that her report may be lodged and action be taken against the appellant. 4. The aforesaid application was registered as Case Crime No. 13 of 2012, under Sections 376, 504, 506, I.P.C. at 11.30 a.m. on 20.1.2012. The accused was arrested on the same day near Railway Station at 6.00 p.m. Investigation was conducted by Investigating Officer. He submitted charge sheet against the appellant. The Trial Court, after committal, framed charges under Sections 376, 504, 506, I.P.C., which were denied by appellant and he sought trial. 5. The prosecutrix appeared as PW 1 before the Court and stated that she knows the appellant from the date prior to the date of incident. On the date of incident she had gone to the house of the appellant to return the glass of milk. In her cross-examination she stated that she belongs to Raj Nagar, District Sahdol. Her husband is a poor man, who is doing the job of labourer and is also an agriculturist. She is also poor from her parent's side. She has habit of drinking tea. The house of the appellant is after four houses from her house. Her elder son is aged about 8 years. She has three sons and a daughter. On the date of incident she had gone to the house of appellant to take milk for her child. When she asked the appellant, whether he has milk, he replied yes and stated that take it, milk has already been extracted from the animals. The house of the appellant is south facing, after the door there is a courtyard wherein she went and took the milk. On that day the children and wife of the appellant were not there. She is not aware when his wife went to her parents' house. When she went to take the milk from the appellant she came to know that no one is there in his family in the house. She has earlier also taken milk from the appellant two to four times. She had not gone to him with the glass. She is not aware when his wife went to her parents' house. When she went to take the milk from the appellant she came to know that no one is there in his family in the house. She has earlier also taken milk from the appellant two to four times. She had not gone to him with the glass. She had taken milk in his glass and took it to her house. Her children were not listening to her and therefore, she herself went to return his glass. She had got this fact mentioned in the first information report that her children were not going to return the glass of the appellant and had also informed this fact to the Inspector. 6. She further stated that she can barely make her signatures and is not much educated. She denied that she is well educated. She stated that the Inspector read out her statement to make her hear everything which was mentioned therein. She cannot tell the name of the Inspector. She cannot tell reasons why this fact has not been mentioned in her statement under Section 161, Cr.P.C. The house of the elder brother of the appellant Ramsumer alias Badkauna is adjacent to the house of the appellant in the western side, his family resides there. Towards north of the house of the appellant there is house of Bhagwant Kurmi. Towards north-east corner there is thatched hut of Ganesh. From the southern room of the appellant house of Sohan Tailor is adjacent and his main door is towards the sehan of the appellant. Towards the southern side of sehan of the appellant there is house of Ramlal Tailor. On the eastern wall of the house of the appellant, there is wall of 2 feet height of stone. On the northern side of his house also where the house of elder brother is situated, there is similar wall of stone. She does not knows that wife of Badkauna, elder brother of the appellant, is quarrelsome and mean. Wife of Badkauna made false allegation why she is closing the door from inside. Wife of Badkauna did not shouted that the wife of her brother-in-law (the appellant) is not in the house, children are also not there and therefore, why she is closing the door from inside nor she stated that she will inform members of her family regarding her character. 7. Wife of Badkauna did not shouted that the wife of her brother-in-law (the appellant) is not in the house, children are also not there and therefore, why she is closing the door from inside nor she stated that she will inform members of her family regarding her character. 7. She went to return the glass. The appellant was standing outside his door and she gave him glass there. She had mentioned this fact in her application and also informed the Inspector. She denied that she is not stating truth by saying that she returned the glass to the appellant outside his house. Appellant told her that come and see the desi ghee inside but she stated that show her on the door itself. She went inside the courtyard and did not went inside the room and was standing outside the room. He put the container of ghee before her and stated that he is coming back with the spoon. She did not had any container. She had brought another glass this time. Earlier there was not talk about ghee. She had gone to return the glass of her sister-in-law (jethani) which was a different glass. The house of sister-in-law is two houses ahead of her house. While she was returning her glass she refused to accept the same on the ground that her hands are soiled she should return the same after coming back. The main door of the appellant is towards south. He started closing the door when she was in courtyard and she screamed asking him to open the same but he gagged her mouth. She had stated this in her application and also informed the Inspector. Inspector had read out her statement to her. If this fact is not mentioned in her statement she cannot tell the reason for the same. She denied that she stated this fact for the first time before Court in order to supplement her case. She did not screamed. She denied that she stated that she screamed on the advise of a private counsel. There was no one in the vicinity at that time. She further denied that she had illicit relation with the appellant before the alleged accident and stated that appellant is nothing before her husband. She further denied that when she closed the door from inside the sister-in-law of the appellant saw her. There was no one in the vicinity at that time. She further denied that she had illicit relation with the appellant before the alleged accident and stated that appellant is nothing before her husband. She further denied that when she closed the door from inside the sister-in-law of the appellant saw her. She further denied that the sister-in-law of the appellant threatened her that she will inform her family members and therefore, in order to protect herself, she lodged the false report against the appellant. 8. The mother-in-law of the victim, Radha Devi, was examined as PW-II, who stated that prosecutrix went to the house of the appellant to return the glass wherein she brought milk. Thereafter appellant took her inside his house on pretext of giving her ghee and after bolting the door from inside raped her. Her daughter-in-law screamed but because the door was closed her voice did not went outside. After committing the rape the appellant also threatened her daughter-in-law of dare consequences. After incident she came and informed about the same at home. At that time her son had gone to Dharkundi to do job of labourer. She got the application written by Harvansh Tewari and gave it at the Police Station. The petticoat worn by the victim at that time was given to the Police Inspector. In her cross-examination, she stated that she did not saw the incident, what her daughter-in-law informed she knows. Her daughter-in-law studied up to class-IV and belongs to District Damoah. She has come from rich family. She never used to go to the house of the appellant often. Her elder son is aged about 9 years. The appellant is her neighbour and she has never heard any complaint of the appellant earlier from anyone. Three days prior to the incident wife of Munna Sahu had gone to her parents house. She did not knew this earlier and came to know about the same only after the incident. She does not knows whether the prosecutrix was aware of this fact or not. She also admitted that the house of the elder brother of the appellant is adjacent to his house on the western side. She denied knowing that wife of elder brother of the appellant is quarrelsome or not. She does not knows whether the prosecutrix was aware of this fact or not. She also admitted that the house of the elder brother of the appellant is adjacent to his house on the western side. She denied knowing that wife of elder brother of the appellant is quarrelsome or not. She denied that the sister-in-law of the appellant made false allegations against the prosecutrix and had come of her house after the prosecutrix. She admitted that Harvansh Pandey, the scribe of the first information report, belongs to her family. The scribe was Pradhan of the village and he wrote the application given at Police Station. She further stated that her statement was not recorded by the Inspector and the appellant was arrested from her house by the police. She denied that prosecutrix had any relation-ship with the appellant prior to the incident. 9. PW in, Harvansh Pandey, the scribe of the first information report stated that on the date of incident he was going to ease himself when he saw prosecutrix coming from the side of the house of the appellant crying. When he asked her about the reason why she is crying she informed her about the entire incident and thereafter he wrote the application as stated by the prosecutrix and after writing the same read it over to the prosecutrix. She made her signature and thereafter the same was given at the police station. Her petticoat was taken by the Inspector and memo., was prepared. In his cross-examination PW-III admitted that he has qualification of M.A and at the time of incident he was not Pradhan of the village. He admitted that he is cousin of the father-in-law of the prosecutrix, who is Tewari and he is also Tewari. The house of the prosecutrix is close to his house on southern side. He admitted that the prosecutrix was crying. He denied that she come from the direction of the house of the Munna Sahu. Along with prosecutrix her sister and mother-in-law were also there. He could not say whether she first went to her house or came directly to him or did not came to his house directly from the house of Munna Sahu. He stated that since the sister and mother-in-law of the prosecutrix were also with her she was coming from her house. He could not say whether she first went to her house or came directly to him or did not came to his house directly from the house of Munna Sahu. He stated that since the sister and mother-in-law of the prosecutrix were also with her she was coming from her house. He admitted writing the application of prosecutrix on the platform near the temple and after writing the same he read it to the prosecutrix. After she made her signature on the same she gave it at the police station. Prosecutrix went to the police station, which is 8 km away alongwith the applicant. He had written application at about 8.15 - 8.30 a.m. He went to the house of the appellant at 11 a.m. but he was not found in the house. He did not went inside the house and does not knows how many rooms are there. He denied any knowledge from where the appellant was arrested by the police and when. He also denied any knowledge of the character of the prosecutrix and the appellant. He also denied that the husband of the prosecutrix goes for doing the job of labourer. He further denied that he is giving false statement being member of the family of the prosecutrix. 10. The formal witnesses PW IV, Head constable Chetram, PW V Dr. Rama Kant, PW VI Satyaveer, Investigating Officer, PW VII subsequent Investigating Officer were also examined before the Court below. 11. PW V - Dr. Rama Kant, proved that at the time of incident no injuries found on the body of the prosecutrix. She was found pregnant by 16 weeks. No spermatozoa was found in her vaginal smear and from the ultrasound report pregnancy of 13 weeks was found. 12. The defence case was that the prosecutrix had illicit relationship with the appellant and because sister-in-law of the appellant has seen her closing the door from inside and had threatened that she will inform her family members, therefore she implicated the appellant. This defence was not proved since the sister-in-law of the appellant was not produced as defence witness. 13. The statement of the appellant was recorded under Section 313, Cr.P.C. wherein he denied the entire prosecution allegations and stated that the investigation against him is defective and no charges are made against him. This defence was not proved since the sister-in-law of the appellant was not produced as defence witness. 13. The statement of the appellant was recorded under Section 313, Cr.P.C. wherein he denied the entire prosecution allegations and stated that the investigation against him is defective and no charges are made against him. He further stated that he was having illicit relationship with prosecutrix for about 2 and half years. On the day of incident she came to her house. At that time his wife and children were not there. She closed the lock of the door from inside and thereafter entered into physical relationship with him on her own. His house is adjacent to the house of his elder brother in the west. His sister-in-law saw the prosecutrix bolting the door and she screamed and threatened her that she will make complaint to her mother-in-law and husband regarding her deed and therefore, she lodged the first information report only to protect her honour. While going to her house she neither cried nor screamed. 14. The Court below found that the alleged offence against the appellant has been proved beyond doubt and convicted and sentenced the appellant. 15. After hearing learned counsels for the parties and going through the record of the trial court, this court finds that the statement of the prosecutrix is not consistent and she had tried to improve her case before the Trial Court at different places. In the first information report she has held that she went to the house of the appellant to return his glass of milk. Appellant offered her that he has got ghee and whether she wants to purchase the same. She expressed her willingness to purchase the same and he took her inside the room and asked her to take out the ghee herself. On the pretext of bringing spoon for the purpose he went outside the room and locked the main gate of the courtyard (Aangan). However, in her statement before the Court prosecutrix stated that on the same day she had earlier went to the house of the appellant and had brought milk in glass arid had gone to return the same at 8.00 p.m. when the incident took place. She has not stated any time when she went to bring the milk earlier. In her statement she has stated that she has habit of drinking tea. She has not stated any time when she went to bring the milk earlier. In her statement she has stated that she has habit of drinking tea. She is poor. Her husband is a labourer and she is also poor from her parent's side. 16. She has admitted that when she went to take the milk from the house of the appellant, she had come to know that his wife and children and no other person is there in the house. Thereafter she went to return the glass herself and has stated that she had to go to return the glass because her children were not listening to her. The fact that she asked the children to return the glass but they did not listened were not mentioned either in the first information report or in her statement recorded by the Investigating Officer. In her statement under Section 164, Cr.P.C. there is no mention of the fact that she ever asked her children to go and return the glass of the appellant wherein she brought the milk. 17. From her statement, it is also clear that the house of the appellant is situated at a place which is surrounded by the houses of different persons, including his elder brother Badkauna. She has stated directions of the houses of the neighbours and has also admitted that there is boundary of about 2 feet only made of stones between the house of the appellant and his elder brother and therefore, the person standing in the house of the appellant in the courtyard can be seen from the house of his elder brother. In cross-examination she had admitted that wife of elder brother of appellant made false allegation against her as to why she closed the door from inside but in the next line prosecutrix has stated that she did not stated that the wife of the appellant is not in the house, his children are also not there and why she is closing the door from inside. 18. In her statement she had stated that when appellant offered her ghee she had no container but she had stated that there was another glass with her belonging to her sister-in-law (Jethani) and this fact was neither stated by her in the first information report nor in her statement under Section 161, Cr.P.C. 19. 18. In her statement she had stated that when appellant offered her ghee she had no container but she had stated that there was another glass with her belonging to her sister-in-law (Jethani) and this fact was neither stated by her in the first information report nor in her statement under Section 161, Cr.P.C. 19. In her statement the prosecutrix had stated that when she went to return the glass to the appellant, he was standing outside his door of his house and she gave it to him there but this fact has not been stated in the first information report nor in her statement under Section 161, Cr.P.C. In the first information report there is no mention where she returned the glass to the appellant. She has further stated in the first information report that appellant took her inside the room for showing him the container of ghee but in the statement before the court she has stated that she went near the courtyard (Aangan) and did not go inside the room. The appellant brought the ghee container and kept it before her in the courtyard. Thereafter on the pretext of bringing spoon he bolted door from inside. In her cross-examination she stated that she screamed in the courtyard itself that open the door and but her mouth was gagged by the appellant. This fact is at variance with the statement of the victim under Section 161, Cr.P.C. and also with the recital in first information report. She has stated in her cross-examination that she cannot say why this fact has not been mentioned by the Investigating Officer, when she has told him about six times. One striking feature is if the victim raised at alarm in the courtyard of appellant, there are 4-5 adjacent houses to the house of the appellant and at 8.00 a.m. no one heard her scream and came to her help is beyond comprehension. The prosecutrix herself has admitted that house of the appellant is surrounded by number of houses and it is strange that no one heard her screamed even when she left the house of the appellant stating that she was crying and screaming. No public witness was produced by the prosecution to prove that they saw her crying and screaming. 20. The prosecutrix herself has admitted that house of the appellant is surrounded by number of houses and it is strange that no one heard her screamed even when she left the house of the appellant stating that she was crying and screaming. No public witness was produced by the prosecution to prove that they saw her crying and screaming. 20. PW III who stated in his examination-in-chief that he saw the victim coming from the side of the house of the appellant crying on the date of incident has denied this fact in his cross-examination and has stated that he did not saw her corning from side of the house of the appellant and she came to his house along with her sister and mother-in-law. The court below has recorded the finding that PW-III inspite of being relative of the prosecutrix cannot be said to be an interested witness. The cross-examination of PW - IQ shows that he has not proved any fact except that he wrote the application of the prosecutrix. In his cross-examination he denied seeing the prosecutrix coming from the side of the house of the appellant. He denied that husband of the prosecutrix is labourer. He further denied that he has no knowledge about the character of the appellant and the prosecutrix and any relationship between them. He stated that he was Pradhan of the village earlier and belongs to the family of the prosecutrix. Therefore, the statement of PW III was not relevant at all for proving the case of the prosecutrix. 21. PW II, mother-in-law of the victim has testified that she has never heard of any complaint regarding the character of the appellant from anyone in the village prior to the complaint of her daughter-in-law against him. While PW 1 claimed that she is poor from the side of her parents, PW II stated that his daughter-in-law comes from a wealthy family. PW II also stated that her son is a labourer but PW HI, who was a close member of the family of PWs I & II, has stated that husband of the prosecutrix is not labourer. 22. The prosecution evidence considered as a whole was not credible at all warranting conviction and sentencing of the appellant. PW II also stated that her son is a labourer but PW HI, who was a close member of the family of PWs I & II, has stated that husband of the prosecutrix is not labourer. 22. The prosecution evidence considered as a whole was not credible at all warranting conviction and sentencing of the appellant. The Court below has brushed aside the serious discrepancies in the evidence of prosecution on the ground that there are minor contradictions in the prosecution case and they cannot be considered to be relevant for disbelieving the prosecution case. 23. This Court finds that the finding recorded by the court below in this regard is not justified, since PW 1 has not been able to prove the allegations against appellant and her statement cannot be accepted as the basis of conviction of appellant. It does not inspires confidence of court. 24. This Court finds that although appellant himself has admitted in his statement under Section 313, Cr.P.C. that he entered into physical relation-ship with the prosecutrix with her consent, therefore he can be said have admitted committing offence of adultery, because the prosecutrix was wife of another man, but under the facts and circumstances of the case the conviction of the appellant under Sections 376, 504, 506, I.P.C. cannot be sustained and is hereby set aside. The appellant is acquitted of the aforesaid charges. The judgment and order of the Court below is set aside. This appeal is allowed. 25. Bail-bond and sureties furnished by the appellant are discharged. He is directed to be released from jail forthwith, if not required in any other case. The record of the court below be sent back for compliance along with copy of this judgment.