Laloo vs State Of U.P. on 17 July, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 40

Case :- JAIL APPEAL No. – 4289 of 2011

Appellant :- Laloo

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Niraj Tripathi

Counsel for Respondent :- A. G. A.

Hon. Bala Krishna Narayana, J.

The arguments of this case concluded on 12.6.2017.

I then made the following order :-

“Heard and perused the impugned judgement and order as well as the entire lower court record.

I will give reasons later on. But I make the operative order here and now.

This appeal is allowed. The impugned judgement and order dated 21.4.2011 passed by the Addl. District Sessions Judge, court no. 21, Meerut in S.T. no. 777 of 2010 (State vs. Laloo), under Sections 363, 366 and 376 I.P.C., P.S. Lalkurti, district-Meerut is hereby set aside. The appellant is acquitted of all the charges.

The appellant is in jail. He shall be released forthwith,

unless he is wanted in any other criminal case.”

Here are the reasons :-

This appeal has been preferred by the appellant, Laloo against the judgement and order dated 21.4.2011 passed by the Addl. District Sessions Judge, court no. 21, Meerut in S.T. No. 777 of 2010 (State vs. Laloo), under Sections 363, 366 and 376 I.P.C., P.S. Lalkurti, district-Meerut, by which the appellant has been convicted and sentenced to five years R.I. and a fine of Rs. 5,000/- and in default of payment of fine one year additional simple imprisonment under Section 363 I.P.C., 5 years R.I. and a fine of Rs. 5,000/- and in default of payment of fine one year additional simple imprisonment under Section 366 I.P.C. and 10 years R.I. and a fine of Rs. 10,000/- and in default of payment of fine two years additional simple imprisonment under Section 376 I.P.C.

All the sentences were directed to run concurrently.

Briefly stated the facts of the case are that PW1 informant Veer Pal Singh gave a written complainant at police station-Lalkurti, district-Meerut on 20.03.2010, alleging therein that his sister Prabhawati, wife of late Dharampal Singh who is living in house no. 234/3 Jagriti Vihar along with her two sons and one daughter Chanchal had in order to maintain herself rented first floor of her house to one Laloo, son of not known about 2-3 years before. His niece Chanchal aged about 12-13 years had gone to collect her class-VIth admit card from Raghunath Inter College, Chipitank on 19.3.2010 at about 9 A.M. but when she did not return to her house till 4 P.M. he inquired about her from her friends and neighbors, on which his neighbors Rakesh and Ajeet told him that they had seen Chanchal with accused Laloo between 11:30 to 12:00 noon on the same day. He suspected that accused-appellant Laloo had enticed away his minor niece Chanchal and requested that necessary action be taken and the abducted girl recovered.

On the basis of the aforesaid written report Ext.Ka-1 Case Crime no. 82 of 2010 was registered against the accused-appellant Laloo under Sections 363 and 366 I.P.C. The victim was recovered from the custody of the appellant Laloo at Meerut Cantt. Railway station on 30.3.2010 and the accused-appellant was arrested on the same day. Arrest and recovery memo was prepared on the spot and marked as (Ext.Ka-2). Victim’s clothes were seized. She was produced before the Magistrate and her statement under Section 164 Cr.P.C. (Ext.Ka-5) was recorded, in which she made allegation of rape against the accused-appellant and consequently section 376 I.P.C. was also added in the F.I.R. The victim was medically examined by Dr. Pravin Rana, District Women Hospital, Meerut on 31.3.2010. Her vaginal smear slides were sent to the pathologist. Her mother was given her custody.

The Investigating Officer after completing the investigation submitted charge sheet against the accused-appellant under Sections 363, 366 and 376 I.P.C. before Chief Judicial Magistrate, Meerut.

Since the offences mentioned in the charge sheet (Ext.Ka-) submitted against the accused were triable exclusively by the court of session, the Chief Judicial Magistrate committed the case for trial of the accused to the court of Sessions Judge, Meerut where the same was registered as S.T. No. 777 of 2010 (State vs. Laloo) and made over for trial to the court of Addl. District Sessions Judge, court no. 21, Meerut.

On the basis of the material collected during investigation and after hearing the prosecution and the accused on the point of charge, learned Addl. District Sessions Judge, Meerut framed charge under Sections 363, 366 and 376 I.P.C. against the accused Laloo.

Accused pleaded not guilty and claimed trial.

Prosecution in order to prove its case against the appellant examined PW1 Veer Pal Singh, PW2 Premwati, PW3 Chanchal as witnesses of fact while PW4 Head Constable Harswaroop Singh, PW5 S.I. Braj Pal Singh, PW6 Dr. Pravin Dhaka and PW7 M.P. Singh were produced as formal witnesses. The prosecution also adduced documentary evidence comprising of written complaint Ext.Ka-1, memo of arrest of accused Kaloo and recovery of victim Chanchal Ext.Ka-2, recovery memo of victim’s clothes Ext.Ka-3 and supurdginama Ext.Ka-4, statement of PW3 Chanchal recorded under Section 164 Cr.P.C. Ext.Ka-5, Chek F.I.R. Ext.Ka-6, G.D. entry Ext.Ka-7, site plan of the incident Ext.Ka-8 and charge sheet Ext.Ka-9, medical/pathological report of the victim Ext.Ka-10 and her supplementary report Ext.Ka-11, victim’s read-pink coloured shalwar and blue coloured under pant were produced during the trial and marked as material Ext.Ka-1 Ext.Ka-2.

The accused in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and alleged that after he had taken a room in the house of informant Veerpal’s sister on rent he had started depositing his savings with Veerpal’s sister and when the saving amount had accumulated to Rs. 50,000/- he demanded return of the aforesaid amount from Veerpal’s sister which she declined and implicated him falsely in this case.

The learned Sessions Judge after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the appellant under Sections 363, 366 and 376 I.P.C. and awarded the aforesaid sentences to him.

Hence this appeal.

The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts or not.

Record shows that according to the F.I.R. version victim Chanchal on the date of her being kidnapped was allegedly aged about 12-13 years. Record further shows that the victim along with accused-appellant was recovered by the police from Meerut Cantt. railway station about 11 days after kidnapping. She was immediately subjected to medical examination and her statement under Section 164 Cr.P.C. was recorded before the magistrate, which has been brought on record as Ext.Ka-5, in which she has supported the prosecution case as spelt out in the F.I.R. and also made allegation of rape against the accused-appellant as a result of which Section 376 I.P.C. was also added to the F.I.R. However, the medical evidence on record does not corroborate the allegation of rape. Her injury report Ext.Ka-10 indicates that no mark of injury on any part of her body was found including her private parts. Her hymen was torn and admitted two fingers easily. No mark of stain/blood on her under clothes was discernible. The report of the Pathologist Dr. Pramila Gaur further indicates that no spermatozoa was seen on the vaginal smear slide of the victim. The age of the victim was sought to be ascertained by her radiological examination and according to her radiological examination report which is on record and was proved by PW7 Dr. M.P. Singh as Ext.Ka-8 the victim was aged about sixteen years. PW7 Dr. M.P. Singh on page 47 of the paper book in his cross-examination has deposed that the age of the victim could be seventeen years. In view of her medical examination report it can safely be held that the age of the victim on the date of the incident was sixteen years. Thus keeping in view the settled legal position that where the age of a person is ascertained on the basis of her/his rediological examination, in that case the possibility of margin of error of two years on either sides cannot be ruled out and the settled law that in a case where on the basis of the material on record two views are possible, the view favourable to the accused should be preferred, even if the age of the victim mentioned in her radiological report Ext.Ka-11 is accepted to be correct, I hold that the victim was eighteen years old on the date of occurrence.

The next question which arises for our consideration is that whether on the basis of the evidence adduced by the prosecution during the trial the commission of offences by the appellant under sections 366 and 376 I.P.C. is proved or not.

The prosecution in order to prove its case against the accused-appellant had examined PW1 Veer Pal Singh, PW2 Premwati and PW3 Chanchal, victim herself as witnesses of fact. PW1 Veer Pal Singh who is informant of this case in his evidence supported the prosecution case as spelt out by him in the F.I.R. and proved the written report of the incident Ext.Ka-1, supurdginama Ext.Ka-4 and the material Ext.Ka-3 seized clothes of the victim Chanchal. He further corroborated the prosecution story that the victim was recovered from the custody of the appellant from Meerut Cantt. Railway Station on 30.3.2010 at about 7:00 P.M. by S.I. Brijpal Singh, S.I. Suresh Pal Singh and constable Sumit Kumar in his presence as well as the presence of two other witnesses Suresh Pal Singh and Sumit Kumar. He also proved the arrest and recovery memo of the appellant and the victim Ext.Ka-2. PW2 Premwati, mother of the victim in her statement recorded before the trial court has corroborated the evidence of PW1 Veer Pal Singh. However the testimony of PW1 and PW2 on the point of Chanchal being kidnapped by the appellant is wholly inadmissible being hearsay. Now the only evidence left on record for proving that the victim was kidnapped by the appellant is that of PW3 Chanchal. PW3 Chanchal in her examination-in-chief deposed that she had gone to Raghunath Inter Collage, Chipitank on 19.3.2010 to collect her admit card and when she came out of her college after collecting her admit card at about 11:50 A.M. and had walked about 15-20 steps she met appellant Laloo, who was known to her as he was residing as tenant in her house. He told her that her mother had sent him to bring her to Aligarh where her maternal uncle had met with an accident. When she asked appellant Laloo to let her first speak to her mother he told her that she had already left for Aligarh and then he took her to bus station where he gave her one pair of ‘shalwar suit’ and told her that it was given to him by her mother for being given to her and asked her to wear it, on which she wore the suit and boarded the Aligarh bound bus with the appellant Laloo. In the night he offered her a cold drink and after consuming the cold drink she became unconscious. When she woke up she found herself at Kanpur Railway Station. When she asked Laloo why he had brought her to Kanpur he told her that the train to her maternal’s place goes via Kanpur and since the train was indefinitely late they should go and rest in her friend’s house and no useful purpose would be served in waiting for the train sleeping on the platform. Then he took her to a room where he committed rape on her and when she resisted the appellant Laloo threatened to kill her brothers if she even dared to disclose to anyone that she had been raped by him. Thereafter the appellant took her to Allahabad where they stayed for 4-5 days. The appellant used to beat her and compel her to write love letters to him. He also took her to his village where he kept her in a forest and committed rape on her repeatedly. On 30.3.2010 he had brought her to Meerut Cantt. Railway Station for withdrawing money from A.T.M. when he was arrested. The police officer who arrested him had prepared memo of her recovery and the arrest of the appellant on the spot, on which the appellant had put his signature. She proved the arrest and recovery memo as Ext.Ka-12.

The next question which arises for my consideration is that whether the victim PW3 Chanchal spoke the truth in her evidence or she had left her maternal home on her own accord and eloped with the accused-appellant willingly. I have already held that the victim on the date of occurrence was major. From the perusal of her evidence itself it transpires that after leaving Meerut by bus the victim Chanchal had gone with the accused-appellant to Kanpur and from Kanpur to Allahabad where on her own saying she had stayed for about 4-5 days. From Allahabad the accused-appellant had taken her to his village and then both of them had come to Meerut Cantt. Railway Station on 30.3.2010 to withdraw money from A.T.M. where they were apprehended. From the facts deposed by PW3 in her cross-examination on page 34 of the paper book it is proved that while she was sitting on the platform of Kanpur Railway Station there was a police post on the platform and several policemen were present there but she did not make any effort to either attract their attention by raising cries for help or to run away from the custody of the appellant to the policemen. Although she tried to justify her inaction by deposing that due to threats extended to her by the appellant she did not make any effort to escape from the appellant’s custody, the explanation furnished by her neither inspires confidence nor appears to be true or plausible under the peculiar facts and circumstances of the case. From the perusal of her evidence it transpires that after she had been allegedly kidnapped by the appellant she had traveled with him to different places by public transport having ample opportunities to escape, especially at the Kanpur Railway Station where according to her own testimony large number of policemen were present but she did not make any effort to escape from the clutches of the accused-appellant or attract their attention which gives rise to a very strong inference that she was neither kidnapped nor enticed away by the appellant as claimed by the prosecution but she had left her parental home on her own accord and gone with the appellant voluntarily. It appears that after she was caught with the appellant, under the pressure of her family members she gave false evidence against the accused-appellant alleging that not only he had kidnapped her but he had also committed rape on her, although medical evidence on record does not corroborate the allegation of rape. PW6 Pravin Rana who had examined her medically immediately after she was recovered and prepared her medical report Ext.Ka-10 had deposed that it was not possible to give any definite opinion regarding rape.

The prosecution version that the accused-appellant was arrested from Meerut Cantt. Railway Cantt. and the victim was recovered from appellant’s custody on 30.3.2010 also does not inspire any confidence. It is very strange that although the arrest and the recovery memo (Ext.Ka-12) of the appellant and victim Chanchal was prepared by S.I. Brijpal Singh who along with S.I. Suresh Pal Singh and constable Sumit Singh had arrested the appellant and recovered the victim from the appellant’s custody at Meerut Cantt. Railway Station on 30.3.2010 in the presence of PW1 Veer Pal Singh, Mukesh Pal Singh and Sumit Kumar but neither S.I. Brij Pal Singh or S.I. Suresh Pal Singh or constable Sumit Singh nor the two independent witnesses of arrest and recovery, Mukesh Pal Singh and Sumit Kumar whose evidence would have been the best evidence to prove that the arrest of the appellant and the recovery of the victim from him was made at the place, time and in the manner narrated in the recovery memo Ext.Ka2 were not produced as witnesses.

Similarly two persons Rakesh and Ajit residents of the same locality where the victim was residing who were nominated in the F.I.R. as witnesses who had told the informant and the mother of the victim that they had seen the appellant taking the victim away with him were also not examined during the trial. Since no reason is forthcoming from the side of the prosecution for not examining the aforesaid independent and material witnesses, the Court is left with no option but to draw an adverse inference against the prosecution that if the above mentioned persons were produced as witnesses during the trial they would not have supported the prosecution case.

It is not safe in my opinion to uphold the conviction of the appellant on the basis of the testimony of witnesses who are close relatives of the victim and hence highly interested in seeing the appellant convicted for having allegedly kidnapped Chanchal and committed rape on her. Moreover their testimony does not appear to be reliable and truthful.

In view of the foregoing discussion, I find that the prosecution has failed to prove by any cogent and reliable evidence that either the victim was kidnapped by the appellant Laloo on 19.3.2010 at about 9 A.M. or that the victim was recovered from the custody of the appellant from Meerut Cantt. Railway Station on 30.3.2010 at about 7 P.M. The prosecution has further failed to prove by any reliable evidence that the victim Chanchal was either minor on the date of incident or rape had been committed on her by the appellant.

Thus, in view of the above, the recorded conviction of the appellant under Sections 363, 366 and 376 I.P.C. and the sentence awarded to him can not be maintained and are liable to be set aside.

These are the reasons upon which I set aside the impugned judgement and order.

Dt. 12.6.2017.

Faridul.

 

 

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