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Pahari & Another vs State Of U.P. on 31 March, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

A.F.R.

Case :- CRIMINAL APPEAL No. – 1501 of 2006

Appellant :- Pahari Another

Respondent :- State Of U.P.

Counsel for Appellant :- Vinod Tripathi, Narsingh Pandey, Vivek Kumar Sharma

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Vijay Lakshmi,J.

This appeal has been directed against the judgment and order dated 4.3.2006 passed by Special Judge (S.C./S.T. Act), Basti in S.T. No. 84 of 1999 whereby the appellants were convicted under Section 354 I.P.C. and were sentenced to undergo simple imprisonment for four months.

During pendency of the appeal, the appellant no. 1 – Pahari, expired, therefore, the appeal filed by Pahari stood abated vide order dated 18.11.2016 passed by this Court. Now only appellant no. 2 – Surendra is before this Court, who is in jail since 7.12.2016.

Heard Sri Narsingh Pandey, learned counsel for the appellant and Sri Shanti Prakash Patel, learned A.G.A. for the State. Perused the records.

The prosecution case in brief is that an F.I.R. was lodged at 23.30 hours on 24.2.1996 by the complainant Ramtaul at P.S. Chhavni, district Basti to the effect that at about 4.00 P.M. when his sister Mayawati aged about 13 – 14 years was cutting grass in the fields, the accused Pahari and Surendra reached there and they caught hold her hands. When his sister raised alarm, the witness Ramlaut and the brother of first informant Gyan Das, rushed to the spot. Seeing the witnesses, both the accused persons, ran away towards the east direction. The sister of the first informant, on returning home, informed him about the incident. Thereafter the F.I.R. was lodged against the appellants under Section 354 I.P.C. As the prosecutrix belonged to Scheduled Caste, case under Section 3(1)(XI) S.C./S.T. Act was also registered against both the appellants.

Being exclusively triable by the court of Special Judge (S.C./S.T.) Act, the case was committed to such court where on 22.11.2001, the charges were framed against both the accused persons under Section 354 I.P.C. and 3(1)(IX) S.C./S.T. Act. The accused persons denied from the charges and claimed their trial.

The prosecution in order to prove its case produced four witnesses in all.

P.W. 1 is the prosecutrix Mayawati, P.W. 2 is Ram Taul, who is the first informant and brother of the prosecutrix, P.W. 3 is Ramlaut, who is the witness named in the F.I.R. and P.W. 4 is Constable Ram Sewak who was posted at P.S. Chhavni on 24.2.1996 and had prepared the check F.I.R. and had also made relevant entries in the General Diary.

Due to death of investigating officer of this case, he could not be produced, during trial on his behalf P.W. 4 by secondary evidence, has proved the site plan and chargesheet in the court which were marked as Exts. Ka 4 and Ka 5.

After conclusion of the prosecution evidence, the statements of the appellants under Section 313 Cr.P.C. were recorded in which both the appellants denied from the charges and both of them stated that they were falsely implicated in this case due to enmity. However none of them stated anything about the cause for such enmity or the reason behind their false implication. No evidence in their defence was produced by the accused appellants.

The relelvant points for determination in this appeal are that (1) whether the prosecution has successfully proved its case beyond reasonable doubt against the accused persons ? (2) whether the learned trial court has rightly convicted the appellants for the charge under Section 354 I.P.C. ? (3) whether there was need to frame additional charge under Section 376(d) (gang rape) ? and (4) whether the impugned judgment suffer from perversity ?

In order to arrive at a correct conclusion, it is necessary to have a bird’s eye view of the statements of the witnesses produced.

P.W. 1, the prosecutrix, has stated that the incident had taken place about 7½ years ago. The time was about 4.00 P.M., she had gone to scrape grass in the fields. Accused Pahari and Surendra reached there. They caught her hand and ravished her. On her alarm, Ramlaut and her brother Gyan Das reached there. Seeing them the accused persons ran away. She has stated that as her mouth was gagged by the cloth, she could not raise alarm. She has further stated that her statement was recorded by the Daroga Ji on the very next day of the occurrence and she had told about the entire occurrence to Daroga Ji and also to her parents. Her brother had lodged the report. She has further stated that her caste is ‘Chamar’ whereas the accused Pahari and Surendra are Brahmins. The aforesaid incident was committed by them due to the reason that she was ‘Dalit’ lady and as a result, her family was defamed in the village.

During cross-examination she has stated that both the accused persons had reached in the field at the same time and had caught hold of her simultaneously. Surendra caught her legs and Pahari pressed her mouth. They slammed her on the ground. Pahari raped her first and at that time Surendra kept pressing her mouth. Thereafter Surendra committed rape on her and Pahari kept her mouth pressed. She has further stated that she had raised alarm. However, she has admitted that accused persons had not used any abusive language. She has further stated that the witnesses had reached on the spot after the incident. When the witnesses scolded the accused persons, they ran away from the spot. When she was confronted with her earlier statement recorded by I.O. under Section 161 Cr.P.C. in which there was no whisper of rape, she stated that the I.O. in collusion with the accused persons, has not recorded her entire statement in the case diary and has only recorded about molestation and teasing. She has stated that the police did not take her for medical examination but at the same time she has admitted that she did not go to any hospital for her treatment after the incident. She has also admitted that no injury was caused to her during the occurrence.

P.W. 2 Ramtaul, the brother of the prosecutrix and who is also the first informant, has stated that about 7 or 8 years ago at about 4.00 P.M. his sister Mayawati was working in the field. Accused Surendra and Pahari reached there and started teasing and molesting her. When his sister raised alarm, the witnesses Gyan Das and Ram Laut reached there. The accused persons, seeing the witnesses, ran away from the spot. P.W. 2 has further stated that there was no person at that time at his house and when he returned, his sister told him about the incident. He, in accordance with the information given by his sister, dictated the report to one Govind Prasad Mishra who wrote whatever he dictated to him and it was readover to him and after hearing its contents, he signed on the report. P.W. 2 has proved the written report which was marked as Ext. Ka. 1.

It is noteworthy that in his examination-in-chief P.W. 2 has stated that whatever was informed by his sister was exactly dictated by him to the scribe. However, during his cross examination, for the first time, he has stated that his sister had also informed him about commission of rape but due to the family prestige being at stake, he did not mention it in the F.I.R.. He has admitted that Daroga Ji had interrogated him but a perusal of the case diary shows that in his statement under Section 161 Cr.P.C., there is no allegation of rape.

P.W. 3 Ram Laut is the eye witness named in the F.I.R. He has stated that the incident had taken place about 7 – 8 years ago at 4.00 P.M. Hearing the alarm raised by Mayawati, he reached on the spot and saw accused Pahari and Surendra running away. He has also stated that the witness Gyan Das had reached on the spot earlier to him.

During his cross-examination this witness has stated that when he reached on the spot, the accused persons had already run away upto a distance of one Bigha. Mayawati was standing there, she had a trowel (Khurpi) and basket in her hand with some grass in it.

No other witness of fact was produced by the prosecution in this case. One Gyan Das who has been named as second witness in the F.I.R. and who is said to be the another brother of the prosecutrix, has not been produced and he has been exempted from giving evidence by the court on the application moved by the prosecution.

The learned court below, after a detailed discussion of all the facts and circumstances, did not find the allegation of rape proved against accused-appellants. Holding this allegation as an unreliable improvement, the learned court below took the view that neither the I.O. was informed about commission of rape, nor any medical examination of the prosecutrix was conducted, moreover the prosecutrix herself admitted that no injury was caused to her and there being no allegation of commission of rape in the F.I.R. itself, the story of rape appears untrustworthy. The learned court below was also of the view that at the time of occurrence, there was a trowel in the hand of the prosecutrix and she could have defended herself by using it against the accused persons. However, the court below found the charge under Section 354 I.P.C. proved in this case on the ground that all the witnesses including the prosecutrix, from the very begining are consistent about teasing and molesting which fact also finds corroboration with the F.I.R., and the case diary. The learned court below was also of the view that the accused persons in their statements under Section 313 Cr.P.C. have by a general denial, only, stated about their false implication and have not even specifically denied their presence on the spot or the fact that no such incident had ever taken place.

Accordingly, finding the appellants guilty under Section 354 I.P.C., the learned trial court convicted and sentenced the appellants for four months simple imprisonment. The charge under Section 3 (1)(x) was not found proved in this case by the trial court on the ground that the prosecutrix had herself admitted that the appellants had not used any abusive language against her and the place of occurrence was not a public place.

Before recording any finding on the legality, correctness or perversity of the aforesaid findings in the impugned judgment, it may be mentioned at the very outset that when the instant appeal was admitted on 28.3.2006, this Court had made the following observation : –

“Admit.

The allegations in this case are extremely shocking. The girl in her statement has stated that she was gang raped by the appellants and still the trial court has only convicted the appellants under Section 354 I.P.C. for four months S.I.

The office is directed to send a fax/telephonic message by tomorrow to the District Judge, Basti to send the record of this case within ten days by special messenger.

List this case on 12.4.2006.

Government Advocate may also consider filing of Government Appeal in this case.”

In pursuance of the aforesaid order the State filed Government Appeal No. 2870 of 2006 with application for leave to appeal. However, both were simultaneously dismissed by a Division Bench of this Court vide order dated 5.9.2013.

Now reverting back to the facts of the present appeal, specially on the issue of rape, there is no doubt that as per well settled legal position, in order to convict a person for rape, the sole statement of the prosecutrix is sufficient and there is no requirement of any further corroboration. However, the condition is that the statement of the prosecutrix should be worthy of credence, inspiring confidence.

In so far as the case in hand is concerned, peculiar facts are such that they create a doubt as to whether the prosecutrix is stating true facts ?

I have perused the case diary which is available on the original record. The statement of the prosecutrix as recorded by the I.O. in the case diary is reproduced below :-

?kVuk fnukad 24-2-96 le; 4 cts ‘kke ?kVuk ds lEcU/k es iwNrkN ij ?kVuk es ,Q0vkbZ0vkj0 dks rkbZn o rlnhd djrs gq, crk;h fd eS vius [ksr esa xzke mRrj rjQ dke dj jgh Fkh fd xzke djukbZ dh rjQ ls esjs xkao ds igkM+h iq= ohjcy yksfu;k o lqjsUnz iq= dubZ;k feJ us vkdj eqdks cnfu;rh ls idM+ fy, rFkk NsM+NkM+ djus dh dksf’k’k djus yxs fd eS ‘kksj dh] esjs ‘kksj dh vkokt ij esjs xkao ds jke rkSy iq= vaxuw o esjk HkkbZ Kku nkl vk x;s fd eqyfteku mu yksxksa dks vkrs ns[kdj eqdks NksM+dj iwjc dh rjQ Hkkx x;sA mlds ckn bl ?kVuk dks mu yksxksa ls rFkk viuh eka o HkkbZ ls crk;hA esjs crkus ij esjk HkkbZ jke rkSy xzke iz/kku dks ysdj Fkkus ij lwpuk nsus gsrq x;sA tgkW ij eqU’kh th }kjk fy[kdj udy ysdj esjk HkkbZ ?kj vk;kA

The aforesaid statement of the prosecutrix shows that one Gyan Das, who is said to be an eye witness in the F.I.R., is also her brother. However, he has not been produced by the prosecution during trial. Not only that, prayer was made from court by moving an application to exempt him from appearing as witness. The parents of the prosecutrix were also not produced despite the fact that the prosecutrix has stated that on returning home she had narrated the entire episode to her parents. The statement of the mother of the prosecutrix as recorded by the I.O. shows that she also has stated nothing about rape during her interrogation. Even her brother P.W. 2 has not stated anything about rape during her examination-in-chief. It was for the first time during his cross-examination the P.W. 2 has stated that due to fear of defamation of his family prestige, he did not mention about the rape in the F.I.R. The aforesaid statement of P.W. does not inspire confidence in wake of his earlier statement in which he has categorically stated that what was informed by his sister, he dictated to the scribe who after scribing it read over the contents to him which he heard and thereafter signed on the written report. The scribe of the F.I.R. has also not been produced by the prosecution. The reason given by the trial court that despite the fact that the prosecutrix had a trowel in her hand at the time of occurrence with which she could have defend herself also appears to have some force in it.

The police after investigation, has submitted chargesheet under Section 354 I.P.C. and 3(1)(x) S.C./S.T. Act only. The statement of the prosecutrix in the court has been recorded on 5.8.2003 i.e. after 7 – 8 years of the occurrence but despite passing of a considerable period, no complaint was made by any family member that the I.O. deliberately exonerated the accused persons from the charge under Section 376 I.P.C. It was for the first time after 7 – 8 years that the prosecutrix had stated about commission of rape by both the accused persons. The prosecution, after the statement of prosecutrix and her brother did not even move any application before the trial court to amend the charge by adding Section 376 I.P.C.

The non production of the parents and brother (Gyandas) of the prosecutrix in the court raises a reasonable doubt in the veracity of prosecution story.

The Apex Court in the case of Sucha Singh Vs. State of Haryana; (2013) 14 CC 552 has observed as under :-

“Though all the witnesses of prosecution need not be called but witnesses who were essential to unfolding of narrative on which prosecution is based must be called by the prosecution and the failure to examine such witness might affect a fair trial.”

No injury on the body of the prosecutrix as per her own admission and the fact that at the time of framing charge, there was no material before the court to frame charge under Section 376 I.P.C. and that even no application was moved at any stage of trial to frame additional charge under Section 376 I.P.C., all these facts clearly indicate that the story of rape was an improvement by the prosecution and an after thought, perhaps for the reason that heavy amount as compensation and several other benefits are provided to the victim of rape under the government schemes in case she belongs to some scheduled caste. The possibility cannot be ruled out that in order to avail the aforesaid benefits, the story of rape was introduced after 7 – 8 years of the occurrence.

In view of the above and after a close scrutiny of the evidence available on record, this Court is of the considered view that there is no sufficient and cogent evidence to book the appellant for the offence Section 376 (d) I.P.C. and the court below did nothing wrong in not framing charge under Section 376 I.P.C. against them.

Now the legality and correctness of the conviction of appellants under Section 354 I.P.C. is to be considered, which has been challenged in this appeal.

Learned counsel for the appellants has contended that the impugned judgment is not sustainable and the appellants have wrongly been convicted and sentenced by the court below without proper appreciation of the evidence. It has been contended that when the court below disbelieved the story of rape, there was no occasion to believe the story of sexual molestation. In fact, no such occurrence had ever taken place. Learned counsel has submitted that the appellant was convicted only on the ground that in the statement under Section 313 Cr.P.C. the appellants said nothing in their defence, they have made only a vague denial and have not even specifically denied their presence at the place of occurrence.

Learned counsel has submitted that the burden is always on the prosecution to prove its case beyond reasonable doubt against the accused persons and even if the accused keeps mum and explains nothing in his statement under Section 313 Cr.P.C., he cannot be held guilty and convicted on such ground.

I do not find any force in the arguments advanced by learned counsel for the appellant in view of various recent pronouncements of Hon’ble Apex Court in which it has been held that if the accused keeps mum during his examination under Section 313 Cr.P.C. or does not explain his false implication, adverse inference can be drawn against him.

In Munna Kumar Upadhyay Vs. State of A.P.; (2012) 6 SCC 174 the Hon’ble Apex Court has held as under :-

“None of the accused offered any explanation during the recording of their statements under Section 313 Cr.P.C. It is not even disputed that the material incriminating evidence was put to appellants while their statement under Section 313 Cr.P.C. was recorded. Except for a vague denial, they stated nothing more. The statement of Section 313 Cr.P.C. serves a duel purpose. Firstly it affords the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. If the accused gives incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the court can draw an adverse inference against him. Such conduct of accused would tilt the case in favour of prosecution.”

The trial court has given cogent reasons to convict the appellants under Section 354 I.P.C. has rightly acquitted them for the offence under Section 3(1)(x) S.C./S.T. Act. The government appeal filed before this court has already been dismissed by a Division Bench of this Court.

In view of the aforesaid facts and circumstances there does not appear any illegality or perversity in the impugned judgment requiring any interference by this Court.

Accordingly the appeal is dismissed and the impugned judgment is confirmed.

The appellant is already in jail. He has been convicted for simple imprisonment for 4 months. He shall be remained in jail to serve out the remaining sentence, if any.

The lower court’s record be sent back to the lower court concerned alongwith a copy of this judgment.

Dated : March 31, 2017.

S.B.

 

 

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