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2024 DIGILAW 1851 (ALL)

Mohd. Hamid v. State of U. P.

2024-08-08

ASHWANI KUMAR MISHRA, GAUTAM CHOWDHARY

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JUDGMENT : Hon'ble Ashwani Kumar Mishra, J.-This appeal is directed against judgment and order of conviction and sentence dated 21.9.2013, passed by the Additional Sessions Judge, Court No. 4, Azamgarh in Session Trial No. 560 of 2011 (State v. Mohd. Hamid), arising out of Case Crime No. 306 of 2011, Police Station Mubaraqpur, District Azamgarh, whereby the accused appellant Mohd. Hamid has been convicted and sentenced to rigorous life imprisonment alongwith fine of Rs. 20,000/- under Section 376 IPC and on failure to deposit fine to undergo additional imprisonment for two years. 2. Victim in the present case is a four year old girl, who has been subjected to rape. Victim's father has lodged the written report saying that he is a resident of Village Gajahara, Police Station Mubaraqpur, District Azamgarh. On the date of incident, i.e. 15.8.2011 when the informant returned from work at about 3.00 he came to know that his wife had gone to get cow dung cake from the neighbourhood and in between the accused entered the house and sexually assaulted the victim. On arrival of the informant's wife she raised an alarm whereafter the accused fled and was apprehended by the villagers. The victim was bleeding from her private parts and was brought with the informant for lodging the report. It is with this allegation that the First Information Report came to be registered as Case Crime No. 306 of 2011 under Section 376 IPC at 4.30 PM on the date of incident. The Investigating Officer proceeded with the investigation and collected the clothes worn by the victim and the same was exhibited during trial as Ex.Ka.2. The accused was also arrested on the same day and his jeans pant was recovered vide Ex.Ka.6 on the same day. The victim was examined at the District Women Hospital, Azamgarh on the date of incident itself and following injuries were found on the victim : ''Both vulva swelling and bluish colour. Hymen tear and irregular margin. Tenderness present. Altered color blood present. Vagina: Inter tip of finger.'' 3. A supplementary medical report was also produced which shows that the victim's hymen contained tear with margins irregular and tenderness was present. There was also swelling in both the vulva. The age of the victim was determined as five years. Vaginal slides were also prepared of the victim but no spermatozoa was seen on it. A supplementary medical report was also produced which shows that the victim's hymen contained tear with margins irregular and tenderness was present. There was also swelling in both the vulva. The age of the victim was determined as five years. Vaginal slides were also prepared of the victim but no spermatozoa was seen on it. The cloths worn by the victim as also the jeans worn by the accused were sent for scientific examination to the Forensic Science Laboratory at Varanasi. The report is on record according to which no blood or semen was found on the jeans worn by the accused. However, on the underwear and cloths of the victim, blood and semen both were found. 4. On the basis of material collected during the course of investigation charge-sheet came to be submitted against the accused appellant Mohd. Hamid by the Investigating Officer. The concerned Magistrate committed the case to the Court of Sessions Judge, Azamgarh where charges were framed against the accused on 3.11.2011. Charges were explained to the accused, who denied his implication and demanded trial. 5. During the course of trial, documentary evidence have been adduced by the prosecution in the form of FIR as Ex.Ka-3; written report as Ex.Ka-1; recovery memo of Frock & Chaddhi as Ex.Ka-2, recovery memo of Jeens Pant as Ex.Ka-6; medical report as Ex.Ka-9; supplementary report as Ex.Ka-7; pathology report as Ex.Ka-8; X-ray report as Ex.Ka-10; FSL report as Ex.Ka-13; charge-sheet as Ex.Ka-11; and site plan with Index as Ex.Ka-5. 6. PW-1 is the informant, who in his examination-in-chief, conducted on 29.3.2012, supported the prosecution case, as per which while his wife had gone to collect cow dung cake from the neighbourhood the accused entered the house and committed rape upon the victim. He also proved the written report in the examination-in-chief. The cross-examination, however, was not conducted on that date and was deferred on the application of the accused. The cross-examination of PW-1 was then held on 17.7.2012, when PW-1 turned hostile and has disowned his previous statement. On the request of the State Counsel, the informant was, consequently, declared hostile by the Court concerned. In the cross-examination PW-1 stated that he got the written report prepared on the disclosure of the villagers and that neither he himself saw the incident. He did not disclose the name of persons from whom he got information of the incident, either. 7. In the cross-examination PW-1 stated that he got the written report prepared on the disclosure of the villagers and that neither he himself saw the incident. He did not disclose the name of persons from whom he got information of the incident, either. 7. PW-2 is the mother of the victim, who during her examination-in-chief itself did not support the prosecution case and turned hostile. She has also disowned her statement given to the Investigating Officer under Section 161 Cr.P.C. Similarly, PW-3, who is a neighbour, also turned hostile at the stage examination-in-chief itself. The victim was produced as PW-4 but the Court found that she was not mature enough to give her statement. Masoom Ali was produced as PW-5, who is a witness of recovery of clothes of the victim. This witness has also turned hostile and has not supported the recovery of clothes of the victim. 8. PW-6 is Dr. Lalmani, who had medically examined the victim. In her deposition the doctor has supported the medical evidence brought on record during trial, according to which the victim was aged about 5 years and her hymen was ruptured. The margins were irregular and tenderness was present. In her opinion the colour of blood was different and the incident apparently was not fresh. She further stated that in the vaginal slides prepared of the victim, no semen or spermatozoa was found. 9. PW-7 is Head Constable Anil Kumar Mishra, who has proved the GD and other police papers. PW-8 is Shailendra Tripathi, who had conducted the investigation in the matter. He has supported the prosecution case, according to which the accused was apprehended by the villagers and his trousers (jeans) was recovered and was sent for scientific evaluation. He has denied the suggestion that investigation has been done by him sitting in his office. PW-9 is the Station House Officer, who has supported the prosecution case, according to which the accused was apprehended by the villagers. He has stated that informant was not present at the time when the accused was apprehended by the villagers. 10. The above evidence produced during trial by the prosecution has been confronted to the accused, who has stated that the report lodged against him is false and evidence is fabricated. He has also stated that due to village enmity on account of election of Pradhan, he has been falsely implicated. 10. The above evidence produced during trial by the prosecution has been confronted to the accused, who has stated that the report lodged against him is false and evidence is fabricated. He has also stated that due to village enmity on account of election of Pradhan, he has been falsely implicated. The above evidence has been evaluated by the Court of session, who ultimately has convicted and sentenced the accused appellant, as per above. 11. Challenging the judgment of conviction and sentence, learned counsel for the appellant argues that there is absolutely no evidence on record to connect the accused appellant with the commissioning of offence and the contrary finding of the Court below is wholly perverse. Learned counsel also submits that neither any injury has been found on the accused nor any blood or semen has been found on his clothes and even his arrest at the spot has not been proved. Submission is that merely because prosecution has established that injuries existed on the victim, it would not necessarily follow that the offence of rape was committed by the accused appellant or that his implication is substantiated on the basis of admissible evidence. It is further urged that even though there is no evidence against the accused appellant, yet he is incarcerated in jail since the year 2011, and thus the period of incarceration undergone by the accused appellant is nearly 13 years, by now. Submission is that accused appellant is entitled to be acquitted. 12. Learned AGA, on the other hand, opposes the argument of the appellant's counsel and submits that medical evidence on record clearly proves the commissioning of offence and since there was none else present at the place of occurrence, therefore, the accused appellant has rightly been convicted and sentenced by the Court below. It is also submitted that sexual assault on a four year old minor girl is a serious offence, and therefore, the sentence of life is appropriate, considering the gravity of offence. 13. We have heard Sri Ashutosh Tripathi, learned counsel for the appellant and Sri G.P. Singh, learned AGA for the State and have perused the material brought on record. 14. The evidence led by the prosecution would go to show that the informant was himself not present at the place of occurrence when the incident occurred. 13. We have heard Sri Ashutosh Tripathi, learned counsel for the appellant and Sri G.P. Singh, learned AGA for the State and have perused the material brought on record. 14. The evidence led by the prosecution would go to show that the informant was himself not present at the place of occurrence when the incident occurred. The informant (PW-1) in the written report as also in his deposition has clearly admitted that he had gone out and it was only on his return that he came to know that accused had committed rape upon his daughter. The informant, therefore, is not an eye-witness. The other prosecution witness of fact is the wife of the informant, who also was not present when the incident occurred. The assertions in the written report and the testimony of PW-1 clearly go to show that the informant's wife had gone to get cow dung cake from the neighbourhood and by the time she returned, the incident of rape was committed upon her daughter. It is also the prosecution case that the accused was apprehended near the spot by the villagers, once they saw the accused fleeing from the place of occurrence after subjecting the four year old minor girl to rape. The incident of rape has been proved by the prosecution on the strength of the medical report, which is on record. The injury report of the victim clearly goes to show that the victim had been subjected to sexual assault. The testimony of doctor supports the prosecution allegation of rape, inasmuch as the doctor found that there was swelling on the vulva of the victim and the hymen was ruptured. Margins were irregular. Tenderness was also present. Although the doctor in the cross-examination has stated that no semen was found on the vaginal smear prepared of the victim but she has clearly ruled out the possibility of such injury having been caused accidentally, by the insertion of pointed object or on account of fall of the victim etc. as was suggested by the defence. The FIR allegations otherwise are to the effect that victim was found bleeding from her private part. The medical examination of the victim has been conducted on the date of incident and the same has been clearly proved. as was suggested by the defence. The FIR allegations otherwise are to the effect that victim was found bleeding from her private part. The medical examination of the victim has been conducted on the date of incident and the same has been clearly proved. From the medical evidence, which is supported by the statement of the doctor, it is abundantly clear that 4-5 year old minor victim has been subjected to sexual assault. The finding of the sessions Court holding that the prosecution has proved the occurrence of rape is, therefore, sustained. 15. This takes us to the central part of the prosecution case, which is the implication of the accused appellant as being perpetrator of the aforesaid crime of rape on a minor girl. The prosecution heavily relies upon the testimony of witnesses of fact, all of whom have turned hostile. Admittedly PW-1 and PW-2, who are the parents of the victim, were not present at the time of incident, and they have not supported the prosecution case regarding commissioning of rape by the accused upon minor daughter and they are declared hostile. It is, therefore, apparent that there is no oral testimony of any witness, who implicates the accused appellant of committing rape upon the victim. The only other prosecution evidence is the medical evidence and the scientific evidence. The medical evidence on record has been carefully examined by us and we find that there is nothing in it to connect it with the accused appellant. The accused appellant has not been medically examined and there is no medical report of the accused on record. The only recovery made from the accused is of his trousers (jeans) on which neither there is any blood found nor there are any traces of semen etc. No individual has come forward from the side of the prosecution to prove the fact that the accused was seen committing the offence or he was soon apprehended by them. Though the Investigating Officer states that accused was apprehended on the spot by the villagers, but that statement in itself would not be sufficient to connect the accused appellant with the commissioning of offence. Moreover, there is no arrest memo on record to prove the fact that the accused was arrested on the spot, nor there is any independent witness of arrest of the appellant. 16. Moreover, there is no arrest memo on record to prove the fact that the accused was arrested on the spot, nor there is any independent witness of arrest of the appellant. 16. We have carefully perused the available records, but from its perusal we have not been able to find any credible evidence produced by the prosecution, on the basis of which we may reasonably come to the conclusion that it was the accused appellant who had committed sexual assault upon the victim. So far as the judgment of conviction and sentence is concerned, we find that the trial Court has placed reliance upon the testimony of PW-2, wherein she has supported the prosecution case with regard to apprehending of accused on the spot. Apart from it, there is absolutely no other evidence, which has been referred to or relied upon by the trial Court to implicate the accused appellant. The statement of PW-2 has been perused by us, wherein she has alleged that the villagers had apprehended the accused but she does not known whether the accused was rightly apprehended by the villagers or not. We find that this evidence in itself would not be sufficient to sustain the finding that prosecution has established its case of arrest of the accused appellant, on the spot, soon after committing rape, beyond reasonable doubt. 17. In the facts of the case, we find that accused appellant otherwise has undergone incarceration of nearly 13 years. Upon analysis of the evidence on record, we are, therefore, persuaded to accept the argument of appellant's counsel that the prosecution has failed to establish the complicity of the accused appellant in committing the offence, beyond reasonable doubt. The accused appellant, accordingly, is held entitled to benefit of doubt. 18. Consequently, the present appeal succeeds and is allowed. The judgment and order of conviction and sentence dated 21.9.2013, passed in Session Trial No. 560 of 2011 (State v. Mohd. Hamid) is set aside. The appellant Mohd. Hamid shall be released from Jail, forthwith, unless he is wanted in any other case, subject to compliance of Section 437-A Cr.P.C.