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2021 DIGILAW 825 (ALL)

Nanhey Lal Yadav v. State of U. P.

2021-08-06

KARUNESH SINGH PAWAR

body2021
JUDGMENT : KARUNESH SINGH PAWAR, J. 1. This criminal appeal has been preferred against the judgment and order dated 29.11.2001 passed by Additional Sessions Judge (FTC-IV), Lucknow in Sessions Trial No. 610/2001, Crime No. 176 of 2000, P.S. Malihabad, Lucknow whereby the appellant has been convicted and sentenced to eight years rigorous imprisonment and a fine of Rs. 2000/- with default provision, under section 376 I.P.C. The appellant has been further convicted and sentenced to six months rigorous imprisonment under Section 506(2) I.P.C. Both the sentences were directed to run concurrently. 2. The prosecution case as per written report dated 11.7.2000 is that on 10.7.2000 at about 7.00 p.m. the daughter of the informant Basanti aged about 14 years went to ease herself. All of a sudden, Nanhey Lal son of Kallu of the same village came and caught hold of the daughter of the informant and threatened that if she raises alarm, he will kill her. By saying this, Nanhey Lal put knife on the chest of the prosecutrix and committed rape on her. After returning home, the prosecutrix told the incident while she was weeping. Since it was late night, therefore, the informant did not go to the police station and as such on the next day, i.e. on 11.7.2000, he went to the police station. The written report is Ex.Ka-1. Thereafter, the prosecutrix was medically examined on the same day, i.e. on 11.7.2000. The medical examination report is Ex.Ka-2. A supplementary medical report was also prepared which is Ex.Ka-3. Chik FIR was prepared which is Ex.Ka-6. Thereafter, site plan was prepared by the investigating officer which is Ex.Ka-4. The investigating officer after completing the formalities and taking statements of the prosecution witnesses under section 161 Cr.P.C. submitted charge-sheet which is Ex.Ka-5. The prosecution to prove its case has produced five witnesses, viz. PW-1 prosecutrix, PW-2 complainant, PW-3 Dr. Sadhna Devi who had medically examined the prosecutrix and prepared medical report as well as supplementary report, PW-4 SI Phool Dev and PW-5 HC Vednath Verma. 3. PW-1 in her examination-in-chief has repeated the story, narrated in the written report. In the cross-examination, she has stated that in her statement given before the Magistrate, she has stated her age to be 18 years. She has further stated that her father has applied for compensation from the government. She also stated that her house is at 30 ft. PW-1 in her examination-in-chief has repeated the story, narrated in the written report. In the cross-examination, she has stated that in her statement given before the Magistrate, she has stated her age to be 18 years. She has further stated that her father has applied for compensation from the government. She also stated that her house is at 30 ft. distance from the house of Nanhey Lal. The elder son of Nanhey Lal is 16 years, Pinki is of 14 years, Renu is 11 years of age and the age of Jitendra is 8 years. In front of the house of Nanhey Lal, there is a field of Gaya Prasad where the incident took place and from where the house of the appellant is visible. In the field of Gaya Prasad, crop of Jwar was standing. After sitting in the crop, nobody could see anything in the farm. She stated that she is not aware about inch or feet. She stated that she did not go again to the place of occurrence. A private lawyer was also engaged who has submitted report of the incident in the police station and she also went with him to the police station. She stated that at the time of incident, there was a little sunlight. She stated that in case somebody raises alarm loudly from the field of Gaya Prasad, then it may be heard from her house. She cried loudly at the time of incident, however, nobody came. Then she stated that wife of Nanhey Lal came out but she was standing there. She was seeing the incident, however, did not come to her rescue. The children of Nanhey Lal were playing outside the house. They also kept watching the accused, raping the prosecutrix but did not came to her rescue. She denied the suggestion that on the date of incident, she had collided with buffalo of Nanhey Lal and Nanhey Lal slapped her twice. She further stated that the brother of Nanhey Lal, Siyaram resides in the same village which is adjacent to the house of the appellant and her two maternal uncles Ganga Ram and Chhutakey have also their houses. She denied the suggestion that there was fight between Siya Ram and her maternal uncles and cross cases were lodged by both the sides. She denied the suggestion that there was fight between Siya Ram and her maternal uncles and cross cases were lodged by both the sides. She further stated that she reached police station at about 5-6 a.m. on the next day of the incident. Then she was sent for medical examination at about 8-9 p.m. During the course of incident of rape, she was scratched at several places by finger nails and finger nails scratches had also come on her mouth. Prior to the incident, she was never raped. During the course of rape, her clothes had become dirty with latrine. Therefore, she washed them after returning home. At the place where she was thrown, 20-25 Jwar plants were broken. She was also injured due to Jwar plants. While committing rape her both hands were pressed, therefore, she could not resist/beat the appellant. On the next day, she had shown the torn arms of her Kurta to the investigating officer. Salwar was not torn. The investigating officer did not take the clothes. She denied the suggestion that she has lodged the report just to harass the appellant and to extract money from the government. 4. PW-2 Puttu Lal repeated the same story in the examination in chief. In the chief, he has also stated that due to the fact that knife was pointed on the prosecutrix she could not cry. In the chief he has stated that on the second day, he got the written report written by somebody and then got it typed at Malihabad. The contents were read over to him and he signed it. He went to the police station along with the prosecutrix where his report was written. Thereafter, the prosecutrix along with a Peon was sent to Mahila police station for medical examination where she was medically examined and x-ray was conducted. On the third day, they returned home. Since it was a matter of girl, therefore, the report was lodged at Mahila police station. For two days, he remained at Mahila thana, then, he said that while returning from Lucknow, he did not go to Malihabad Thana. Regarding this incident, he never met again to any of the police personnel of police station Malihabad. He admitted the fact that prior to the incident, there was a fight between Siyaram and his brothers in law. Both the parties were injured and cross cases were filed. Regarding this incident, he never met again to any of the police personnel of police station Malihabad. He admitted the fact that prior to the incident, there was a fight between Siyaram and his brothers in law. Both the parties were injured and cross cases were filed. He was also made accused. Thereafter, compromise took place. He denied the suggestion that the prosecutrix had brawl with the appellant relating to the collusion with the appellant’s buffaloes and the appellant slapped the prosecutrix twice. Prior to the incident, the appellant supported different candidate in the election and he supported another person Virendra Neta. He further stated that he waited for the appellant till 11.00 p.m. in the night that if he apologises then he shall not lodge the report. He stated that Nanhey did not care for 10000 rupees. Nanhey did not apologise therefore, the report was lodged on the second day. In case he had apologised, then he would not have lodged the report. He denied the suggestion that the report has been lodged due to village partibandi and enmity with the appellant and also to extract money from the government. 5. PW-3 Dr Sadhna Devi has medically examined the prosecutrix. In the external examination, she has not found any mark of injury on the body or any sign. In the internal examination also, no injury has been found on the private part. Hymen was old torn and healed. She could not give any opinion about rape. The prosecutrix was habitual of sexual intercourse. The radiological age according to X-ray report of the prosecutrix was stated to be 18 years. 6. PW-4 S.I. Phool Dev is the investigating officer of the case and is a formal witness. After completing the investigation, he submitted charge-sheet, Ex.Ka.5. 7. PW-5 Head Constable Vednath Verma who is also a formal witness has proved Ex.Ka-6 as also Ex.Ka-7 the general diary of 11.7.2000 of police station Malihabad. In the statement under section 313 Cr.P.C. the case of the appellant is of denial. He has stated to have been falsely implicated due to previous enmity. It is further stated by him that a buffalo pushed the prosecutrix on which she started abusing him and he gave 2-3 slaps to her on account of which her father Puttilal lodged a false report against him. 8. He has stated to have been falsely implicated due to previous enmity. It is further stated by him that a buffalo pushed the prosecutrix on which she started abusing him and he gave 2-3 slaps to her on account of which her father Puttilal lodged a false report against him. 8. Learned counsel for the appellant submits that the story put forth by the prosecution is highly improbable and untrustworthy. The report has been lodged at Malihabad whereas PW-1 has stated that after the incident, she and her lawyer went to the police station to lodge the report whereas PW-2 has stated that report was lodged at Mahila thana which is far of, from Malihabad and in Lucknow district headquarter. PW-2 has stated that he did not go to Malihabad thana after returning from Lucknow nor met any police personnel of police station Malihabad. He submits that the evidence of PW-1 and PW-2 regarding lodging of the report is extremely doubtful. It is not clear from the prosecution case whether the report was lodged by lawyer as according to the statement of PW-2, the appellant was in Mahila Thana for two days and report was lodged at Mahila thana. The prosecutrix did not suffer any injury. The testimony of the prosecutrix is highly improbable as according to her, wife and four children of the accused saw him committing rape. The appellant has been falsely implicated just to extract Rs. 10000/- and also due to village partibandi. It is lastly submitted that the medical evidence does not corroborate the prosecution story. The statement of PW-1 and PW-2 regarding lodging of the report is totally contradictory. Testimony of the prosecutrix is not worthy of credence and there is no corroborative material with the prosecution. 9. Learned A.G.A. while opposing the argument of the appellant’s counsel and supporting the prosecution case has submitted that the testimony of the prosecutrix is alone sufficient to convict the appellant. No corroborative material is needed. 10. Having heard parties’ counsel and after perusal of the record, it appears that the statement of PW-1 regarding broken jwar plants have been contradicted by PW-3 investigating officer. The site plan also does not corroborate this part of the evidence where no broken Jwar plants have been shown. The investigating officer has clearly denied that any broken Jwar plants were found on the site. The site plan also does not corroborate this part of the evidence where no broken Jwar plants have been shown. The investigating officer has clearly denied that any broken Jwar plants were found on the site. PW-1 stated that after the incident, she went along with lawyer and lodged the report in the police station whereas PW-2 states that he went along with prosecutrix and there is no mention of any lawyer. It is then said that he went to Mahila Thana and the report was lodged there. For two days, he remained in Mahila thana along with the prosecutrix and after returning from Mahila thana, he never met in police station again. Hence, this part of the evidence is also doubtful. The statement of the prosecutrix that the incident of rape was witnessed by the wife and four children of the appellant is also improbable as according to the prosecutrix, the incident had taken place in the field of Gaya Prasad which was in front of house of Gaya Prasad. She further stated that while the appellant was committing rape, wife of the appellant was watching the appellant. Four children were playing in the field, however, none of then came to her rescue. The statement of the prosecutrix is highly doubtful as the appellant is a married person having four children out of whom two are grown up. It is doubtful for two reasons. No prudent man will commit the alleged crime in front of his wife and four children as also no married lady would allow her husband committing rape of a lady in front of her four children. Thus, this part of the evidence of the prosecutrix appears to be highly improbable and does not inspire confidence. The prosecutrix in her statement has stated that after the incident, she did not go to the place of occurrence again. PW-2 also stated the same whereas the investigating officer in his statement has said that he prepared the site plan on the pointing out of PW-2. Thus, the statement of PW-2 as well as the statement of PW-4 regarding the site plan are totally contradictory and thus are doubtful. According to the statement of the prosecutrix, at the place of incident, there is Panchayat Bhawan and a government water tank, still no one saw the appellant committing rape. Thus, the statement of PW-2 as well as the statement of PW-4 regarding the site plan are totally contradictory and thus are doubtful. According to the statement of the prosecutrix, at the place of incident, there is Panchayat Bhawan and a government water tank, still no one saw the appellant committing rape. In addition, as per the site plan, there is a house of Saktu and Virendra Neta and after that there is a abadi of the village. Still nobody heard the screams, although in the statement, PW-1 has stated that she cried loudly. Contrary to it, PW-2 in his statement has stated that PW-1 did not raise any alarm. In regard to the brawl between the appellant and the prosecutrix on the date of incident regarding the collusion with his buffalo and also there was enmity between the brother of the appellant and brother in laws of PW-2, cross cases were lodged by both the parties which do not rule out the possibility of false implication by PW-2, coupled with the fact that PW-2 stated on oath that the appellant did not care for Rs. 10000/-. He waited for the appellant till 11.00 p.m. and since he did not tender apology, report was lodged. It appears that PW-2 was expecting Rs. 10000/- from the appellant which he did not give. He also did not apologise for giving slaps to her daughter, therefore, he may have lodged the report by falsely implicating the appellant. The medical evidence also contradicts oral evidence as according to the first information report, the prosecutrix was 14 years of age whereas in the medical examination her age has been found to be 18 years. No mark of injury has been found on the body and also on the private part of the prosecutrix whereas in her testimony PW-1 has stated that she had received scratches over her body and mouth. Thus, this part of the evidence of the prosecution is also falsified by the medical report. The prosecutrix has been found to be used to sexual intercourse. The Doctor has not given any opinion about rape Thus, the medical evidence does not corroborate the prosecution story. Even the investigating officer has not corroborated the prosecution story as he has not found any broken Jwar plants as stated by the prosecutrix. The prosecutrix has been found to be used to sexual intercourse. The Doctor has not given any opinion about rape Thus, the medical evidence does not corroborate the prosecution story. Even the investigating officer has not corroborated the prosecution story as he has not found any broken Jwar plants as stated by the prosecutrix. He has also contradicted the statement of PW-2 to the extent that it is PW-2 who showed the place of occurrence to him and then he prepared the site plan, whereas PW-2 says that he never returned to the place of occurrence again. Every part of evidence of PW-1 is contradictory, improbable and not corroborated by any other piece of evidence. The accused appellant cannot be convicted on this kind of contradictory, shaky and improbable evidence of the prosecutrix as held by Hon’ble Supreme Court in Mod. Ali alias Quddu vs. State of U.P. (2015) 7 SCC 272 . Relevant paragraph 29 is quoted below: “29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.” (Emphasized by me) 11. The prosecution case also becomes doubtful as according to the prosecutrix, the incident was seen by the wife of the appellant and his four children. Since the evidence of PW-1 is shaky, infirm, not reliable and not worthy of credence, therefore, under these facts and circumstances, it was necessary for the prosecution to have examined the wife of the appellant and his four children. It is not the case of the prosecution that these witnesses were not available to be examined as they have been withheld from the court. Therefore, the question of drawing adverse inference arises against the prosecution as held by Supreme Court in Takhaji Hiraji vs. Thakore Kubersing Chamansing and Others, 2001 Cri. L.J. 2602. Relevant paragraph 19 is reproduced as under: “19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coning from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of Thakores was hurt leading into a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not pre-meditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non-explanation of the injuries sustained by the accused persons would have assumed significance. The learned Sessions Judge has on appreciation of oral and the circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tight rope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tight-rope dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eye-witnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eye-witnesses consistent and reliable in their narration of the incident. In our opinion non-examination of other witnesses does not cast any infirmity in the prosecution case.” (Emphasized by me) 12. Thus, in view of the aforesaid discussion, the prosecution has failed to prove its case beyond reasonable doubt. Every part of the testimony of the prosecutrix is infirm, doubtful and contradictory as well as improbable which does not pose confidence. There is no corroborative evidence in support of the testimony of the prosecutrix. Five important and available witnesses have been withheld by the prosecution from the Court, therefore, it is hard to convict the appellant on this quality of evidence and it is a fit case to draw adverse inference against the prosecution for withholding five important eye-witnesses from the Court. 13. In view of what has been stated hereinabove, the criminal appeal is allowed and the judgment and order of conviction and sentence dated 29.11.2001, passed by Additional Sessions Judge (FTC-IV), Lucknow in Sessions Trial No. 610/2001, Crime No. 176 of 2000, P.S. Malihabad, Lucknow is set aside. The appellant is acquitted of the charges levelled against him. This Court by its order dated 13.12.2001 had admitted the appellant to bail. He be discharged of his bail bonds. 14. Let a copy of this judgment be transmitted to the learned trial Court as well as Superintendent, Jail concerned, for compliance. The lower court records be also sent back to the lower court.