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2024 DIGILAW 1064 (ALL)

Shripal Yadav v. State of U. P.

2024-04-16

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

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JUDGMENT : This appeal is directed against judgment and order of conviction and sentence dated 14.12.2017, passed by the Special Judge (POCSO)/Additional Sessions Judge, Court No. 6, Shahjahanpur in Special Case No. 60 of 2014 (State v. Shripal Yadav), arising out of Case Crime No. 264 of 2014, Police Station Garhiya Rangeen, District Shahjahanpur, whereby the accused appellant Shripal Yadav has been convicted and sentenced to 7 years rigorous imprisonment alongwith fine of Rs. 10,000/- under Section 452 IPC and on failure to deposit fine to undergo additional simple imprisonment for a month; and life imprisonment alongwith fine of Rs. 50,000/- under Section 376-D IPC and on failure to deposit the fine to undergo additional simple imprisonment for two months. Sentences are to run concurrently. 2. As per the prosecution case, informant (PW-1) was sleeping alongwith her daughter, aged 12-13 years, in the intervening night of 17/18.4.2014 at about 1.00 in the night, when the accused Rahul Yadav and Shripal Yadav came armed with countrymade pistol and forcibly abducted her minor daughter, who was later subjected to sexual assault by them. The victim was left in the village with threats that mother would not be allowed to live in the village. The informant tried to lodge a report but the villagers surrounded her and did not allow her to go to police station. No medical examination was held either. Repeated attempts to reach out to police personnel also failed. Ultimately the FIR was registered at 9.30 am on 19.6.2014. Written report on the basis of which FIR got registered is Ex.Ka-1 and has been proved by PW-1. The victim has been medically examined on 20.6.2014, in which no external or internal injuries have been found. Age of the victim has been determined medically as 18 years. Her hymen was found old torn and healed. The statement of victim was also got recorded on 25.6.2014, as per which the incident occurred on the date of elections. The accused came, gagged her mouth and forcibly abducted her on gun point. Thereafter, victim was allegedly subjected to sexual assault in the Verandah of accused Rahul and the victim was later left at her house at about 4.00 in the morning. Threats were extended to the victim. Though the victim claims to have informed of the incident to her mother but they were not allowed to go to police station. Thereafter, victim was allegedly subjected to sexual assault in the Verandah of accused Rahul and the victim was later left at her house at about 4.00 in the morning. Threats were extended to the victim. Though the victim claims to have informed of the incident to her mother but they were not allowed to go to police station. It is alleged that only when a complaint was made to higher authorities that the FIR was registered. Statement of victim was also recorded under Section 161 Cr.P.C. On the basis of evidence collected during investigation the charge-sheet was submitted against the accused appellant on 11.7.2014. 3. The Magistrate took cognizance of the aforesaid charge-sheet and committed the case to the Court of sessions, where charges were framed on 13.5.2015 against the accused appellant under Sections 452, 376-D IPC and 5-G/6 of POCSO Act. The accused denied the charges and demanded trial. 4. During the course of trial, documentary evidence have been adduced by the prosecution in the form of FIR as Ex.Ka-8; written report as Ex.Ka-1; medical report as Ex.Ka-3; supplementary medico legal report as Ex.Ka-4; X-Ray report as Ex.Ka-5; charge-sheet as Ex.Ka-7; and site plan with Index as Ex.Ka-6. 5. The prosecution has produced two witnesses namely PW-1 and PW-2. PW-1 is the mother, who has supported the prosecution case, as per which 12-13 year old victim was abducted on gun point and was subjected to sexual assault between 1.00 am to 4.00 am on the date of incident. In the cross-examination PW-1 has stated that she has two sons and three daughters. The victim is her second daughter. There were other family members also in the house alongwith the victim. PW-1 has also admitted that she is on visiting terms with one Munna Vidhayak, who has been an MLA for 5-6 terms. She used to serve in his house. She has denied the suggestion that there was earlier an agreement to sell the land of her brother-in-law to the accused, whereafter the land was sold to someone else on a higher consideration. It is, however, admitted that the person to whom land has been sold lives adjacent to the house of the informant. She has admitted that accused Shripal Yadav has been working outside the village for the last 5-6 years. On the date of incident, there was election and she had voted. It is, however, admitted that the person to whom land has been sold lives adjacent to the house of the informant. She has admitted that accused Shripal Yadav has been working outside the village for the last 5-6 years. On the date of incident, there was election and she had voted. She has admitted that report has been lodged two months after the incident. In her statement under Section 161 Cr.P.C., PW-1 has admitted that the victim was sleeping next to her and when she woke up at about 2.00 a.m., in the night, she did not find her daughter nor saw anyone else abducting her. She has denied the suggestion that her daughter was in relation with accused Rahul, and on account of village enmity she has falsely implicated the accused persons. 6. The victim has been examined as PW-2, who has supported the prosecution case. She has also verified her statement under Section 161 Cr.P.C. In her cross-examination, she has denied her friendly relations with accused Rahul or that she was caught with Rahul in the Sugarcane Field. She has alleged that force was used while abducting her but no injury was caused. As per the victim, her mother was sleeping next to her but she could not know of the incident. She has admitted that she knew Munna Vidhayak and her mother was cooking food in the school run by him. Victim has also denied the suggestion that on account of village enmity she has falsely implicated the accused. 7. The doctor, who had medically examined the victim has been produced as PW-3. In her opinion, age of the victim was around 18 years and no definite opinion with regard to rape could be given. She found no existence of any external or internal injury on the victim and her hymen was found old torn and healed. PW-4 is Sub-Inspector, who has proved the police papers. 8. The accused was confronted with the evidence led by the prosecution in order to record his statement under Section 313 Cr.P.C. He has alleged to have been falsely implicated on account of village enmity. It is alleged that there was enmity between the Yadavs and Thakurs and as accused was from Yadav Community, while informant was working with local MLA, who was from the Thakur Community, therefore, false complaint has been lodged against him. 9. It is alleged that there was enmity between the Yadavs and Thakurs and as accused was from Yadav Community, while informant was working with local MLA, who was from the Thakur Community, therefore, false complaint has been lodged against him. 9. Defence has also produced its evidence in order to show that on account of sale of landed property, there was an enmity between the parties. The defence witness DW-1 is a 60 year old resident of the same village. 10. Trial Court on the basis of evidence on record has convicted the accused appellant and sentenced him as per law. 11. Learned counsel for the appellant states that accused appellant has been falsely implicated, inasmuch as the prosecution story is wholly unbelievable and is not supported by any evidence on record. 12. Learned AGA, on the other hand, has supported the judgment of conviction and sentence, on the basis of reasons assigned therein. 13. We have heard Sri Virendra Pratap Pal, holding brief of Sri Ram Kesh, learned counsel for the appellant and learned AGA for the State and have perused the material on record. 14. The incident in the present case is alleged to have occurred in the intervening night between 17/18.4.2014, on which date there was an election in the locality for the office of local member of Legislative Assembly. According to the prosecution the two accused came with arms and on gun point physically abducted the minor victim and subjected her to sexual assault. 15. First and foremost, it is to be noticed that though the incident occurred on 17/18.4.2014, but no report in the matter was lodged immediately after the incident. The report has been lodged only on 19.6.2014, which is after more than 60 days. Although delay in itself would not be fatal in a case of sexual offence, but the Court will have to examine the circumstances, which may have led to the delayed reporting of the offence. PW-1 has stated that she tried to go to police station but the villages surrounded her and did not let her go. In the testimony of PW-1, it is, however, not disclosed as to when she attempted to go to the police station or who stopped her from reporting the incident to the police. Discussion in this regard is absolutely vague. In the testimony of PW-1, it is, however, not disclosed as to when she attempted to go to the police station or who stopped her from reporting the incident to the police. Discussion in this regard is absolutely vague. We suspect the testimony of PW-1 and do found her to be credible in this regard for the simple reason that PW-1, admittedly was known to local MLA and was working as a Cook in the school run by the concerned MLA. In the event the incident of the kind, as is alleged, had taken place, it would be expected that PW-1 would try to reach out to influential persons of the village, who are known to her, including the MLA. There is no explanation in the testimony of PW-1 as to why she made no attempt to reach out the local MLA, who admittedly was known to her. Even otherwise, we find that election was held on the date of incident, and generally, it is expected that there would be greater vigil maintained in the area to secure law and order. Easy access to police personnel during the election would be expected. 16. We have examined the testimony of PW-1 and PW-2 carefully, who have not furnished any detail as to when they tried to go to the police station and what attempt was made to inform the authorities or the villagers in that regard. 60 days is not a small time and the fact that during this period no attempt was made to reach out to anyone for lodging the report has to be viewed with suspicious. 17. We have also perused the statement of PW-1 and PW-2, as per whom the victim was abducted on the day of the election. As per PW-1, she was sleeping next to the victim. PW-2 has admitted that when she woke up at 2.00 in the night, she found her daughter missing. There is no explanation forthcoming from the PW-1 as to what she did, when her daughter was found missing. PW-1 has stated that she had never gone out from the house. The fact that PW-1 did not raise any alarm regarding disappearance of her daughter or make any attempt either to inform the family members or to inform police raises doubt on the prosecution version. PW-1 has stated that she had never gone out from the house. The fact that PW-1 did not raise any alarm regarding disappearance of her daughter or make any attempt either to inform the family members or to inform police raises doubt on the prosecution version. We are reluctant to rely upon testimony of PW-1 that having found her daughter missing at 2.00 in the night, she did nothing. PW-2, moreover, has stated that on gun point she was abducted despite resistance by her. However, there was no mark of injury or even old injury on the victim. We further find from the testimony of PW-1 that the family composition of the informant included other members also. Informant has two sons and another daughter apart from the victim and the eldest daughter, who was already married. In normal circumstances, an incident of the kind where a young girl goes missing at 2.00 in the night, the mother is expected to make immediate endeavours to trace out her daughter or to at least inform other family members, who could either inform police or attempt to trace out the victim. The prosecution evidence is absolutely silent and shoddy on this aspect. 18. Medical evidence on record also belies the prosecution claim that victim is a minor. No documentary evidence in the form of school record or birth certificate etc. has been produced to prove the age of the victim. The only material in that regard is the medical opinion, as per which the victim was 18 years of age. It is for this reason that accused persons have been exonerated of charges under the POSCO Act. The medical examination otherwise does not depict any external or internal injury on the victim. The doctor has also not expressed any opinion with regard to occurrence of rape upon the victim. 19. In the facts of the present case, no independent witness has come forward to support the prosecution case. The medical opinion on record also does not support the claim of prosecutrix. The testimony of PW-1 and PW-2 are also not found convincing, inasmuch as their conduct in not reporting the incident or raising an alarm etc. is questionable. 19. In the facts of the present case, no independent witness has come forward to support the prosecution case. The medical opinion on record also does not support the claim of prosecutrix. The testimony of PW-1 and PW-2 are also not found convincing, inasmuch as their conduct in not reporting the incident or raising an alarm etc. is questionable. It is otherwise specifically asserted that there existed enmity on account of alleged sale of immovable property as well as village enmity, as the accused and the informant belong to two separate castes and there was cordiality missing between these two communities. 20. Upon overall evaluation of evidence on record, we find that the testimony of PW-1 and PW-2 cannot be termed to be wholly reliable. The testimony of victim cannot be treated as that of a sterling witness, which alone can be relied upon to convict the accused persons. The fact that no protest was made for almost two months nor anyone in the family raised any alarm are factors, which persuade us to doubt the testimony of injured witness. There are no other incriminating material adduced by the prosecution against the accused persons. Possibility of false implication on account of enmity between the two sides cannot be ruled out. One of the accused namely Rahul has been declared juvenile and his trial has been segregated. Accused appellant Shripal Yadav is in jail since the date of judgment i.e. 14.12.2017. He was also remained incarcerated for about 11 months during the trial. 21. Considering the totality of circumstances placed on record and for the reasons recorded above, we are of the considered opinion that prosecution has failed to establish the guilt of the accused appellant beyond reasonable doubt. The trial Court has also not examined the testimony of witnesses in correct perspective. 22. In that view of the matter, this appeal succeeds and is allowed. The judgment and order of conviction and sentence dated 14.12.2017, passed by the Special Judge (POCSO)/Additional Sessions Judge, Court No. 6, Shahjahanpur in Special Case No. 60 of 2014 is reversed. The appellant Shripal Yadav shall be set free, unless he is wanted in any other cases, subject to compliance of Section 437-A Cr.P.C.