SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Pramod Yadav vs State Of U.P. on 21 December, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

RESERVED

Court No. – 10

Case :- CRIMINAL APPEAL No. – 1083 of 2012

Appellant :- Pramod Yadav

Respondent :- State Of U.P.

Counsel for Appellant :- Jail Appeal,Abdul Rafey Siddiqui,Amicus Curiae

Counsel for Respondent :- Govt. Advocate

Hon’ble Anil Kumar,J.

Hon’ble Rajnish Kumar,J.

(Per : Hon’ble Anil Kumar,J.)

Heard Shri Abdul Rafey Siddiqui, learned counsel for the Amicus Curiae appearing on behalf of the appellant and Shri Chandra Sekhar, learned AGA appearing on behalf of the State.

The present criminal appeal has been filed under Section 372 (2) of the Criminal Procedure Code (here-in-after referred as Cr.P.C.) by the accused-appellant against the impugned judgment and order dated 10.10.2011 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, Barabanki in Sessions Trial No.839 of 2009 arising out of Case Crime No.111 of 2009 under Sections 376/504/506 I.P.C. read with section 3 (1) (12) of SC/ST (Prevention of Atrocities) Act (here-in-after referred as SC/ST Act) and 7 Criminal Law Amendment Act, relating to Police Station-Dewa, District-Barabanki, whereby the accused-appellant has been convicted under Section 376 I.P.C. read with Section 3(2) (5) SC/ST Act.

Prosecution case in brief is that the prosecutrix/victim, resident of Rendua Palhari, P.S. Deva, District-Barabanki, on 24.02.2009 at about 7:00 p.m. was returning home from Palhari Chauraha after buying medicine from the dispensary. While she was on the way, the accused-appellant all of sudden came from behind, caught hold her mouth by one hand from behind and by other hand dragged her in the side of canal and forcibly committed rape and thereafter threatened her with the following words :-

“साली पासिन अगर किसी से कहा तो जान से मार देंगे |”

Thereafter, the victim had told the said incident to her brother-in-law/Mathura Prasad.

On 25.02.2009, F.I.R. was lodged by the complainant/victim registered as Case Crime No.111 of 1909 under Sections 376, 504, 506 I.P.C. And Section 3 (1) (12) SC/ST (Prevention of Atrocities) Act and 7 Crl. Law Amendment Act, at P.S.-Devan, District-Barabanki. After lodging of the F.I.R., on the same day, medical examination of the victim was conducted by Dr. Nirupma Singh, District Women Hospital, Barabanki, which reads as under :-

“MI – Leucodermal marks both hand an both legs,

over neck.

Tatoomark over Rt arm

Height 140 cm. wt. 45 kg.

Maenopaus 5 yrs. Back.

External examination- No mark of injury over body

Internal examination- No mark of injury over private parts. Vegenial smear taken on two slide for spermatozoa and Illegible.

Vegina admitting two finger easily.”

On 25.02.2009, P.W.-4/Dharmendra Kumar, the then Circle Officer, City, had investigated the aforesaid case and prepared the site plan as Ext. No.4. The charge sheet was submitted by him.

On 23.06.2009 Chief Judicial Magistrate, Barabanki committed the case to the court of Sessions by means of the order dated 23.06.2009 and sent the documents to the Sessions Court. On the basis of the same, Sessions Trial No.839 of 2009 arising out of Case Crime No.111/2009 under Sections 376, 504, 506 I.P.C. and Section 3 (1) (12) SC/ST (Prevention of Atrocities) Act and Section 7 Crl. Law Amendment Act was registered. The Sessions Court had framed five charges against the accused/appellant. The charges were denied by the appellant and he prayed for trial.

The prosecution in order to prove its case produced following witnesses :-

P.W.-1/Complainant/victim, P.W.-2/Mathura Prasad, P.W.-3/Dr. Niurpama Singh, P.W.-4/Dhramendra Kumar, Superintendent of Police and P.W.-5/Arvind Kumar.

The accused-appellant, in his statement under Section 313 Cr.P.C., denied his guilt and stated that the false evidence has been given against him on account of enmity.

Subsequently the charge was amended vide order dated 29.08.2011 in view of allegations of Section 376 IPC. Consequently charge under Section 3 (1) (12) SC/ST Act was converted into Section 3 (2) (V) SC/ST Act. The accused had no objection on it and he stated that he does not want to cross-examine any witness or produce any evidence.

The trial court after considering the documentary and oral evidence adduced before it convicted the accused appellant and sentenced the accused-appellant under Section 376 I.P.C. read with Section 3 (2) (5) SC/ST (Prevention of Atrocities) Act for life imprisonment along with a fine of Rs.5000/- and also convicted and sentenced under Section 506 I.P.C. for one year rigorous imprisonment by means of the judgment and order dated 10.10.2011. It has further been provided that in default of payment of fine, he will have to undergo six months additional imprisonment. The accused-appellant has been acquitted under Section 504 I.P.C. and Section 7 of Criminal Law Amendment Act.

The argument advanced by Shri Abdul Rafey Siddiqui, learned counsel/Amicus Curiae appearing on behalf of the accused-appellant are summarized as under :-

“(A) From the evidence on record, it is not established that the offence under Section 376 I.P.C. was committed by the accused-appellant. In order to elaborate his argument, he has placed reliance on the version of the F.I.R. in which it is stated that as per statement given by P.W.1 and P.W. 2, on 24.02.2009 at about 7:00 p.m., prosecutrix/victim, resident of Rendua Palhari, P.S. Deva, District-Barabanki, was returning home from Palhari Chauraha after buying medicine from the dispensary. The accused-appellant, all of sudden came there from behind, caught hold and dragged her in the side of canal and forcibly committed rape with her. She has suffered injury on her elbow and face. However, as per the medical report, no such injury was found on the body of the victim.

(B) As per statement of P.W.-2/Mathura Prasad, victim received injury on her body and face but the same was not proved from the medical report or supplementary pathology report. So, taking into consideration the said medical report, charge of rape is not established against the accused-appellant.

(C) F.I.R. was lodged against the accused-appellant with oblique, motive and purpose at a belated stage.

(D) There is an enmity between the accused-appellant and Chandrika, who is leader of the same community of the victim. He is a close friend of the Mathura Prasad, who is brother-in-law of the victim, which is evident from the statement of P.W.-1. Moreover, the victim was annoyed with the accused on the ground that the accused-appellant was constructing his house near the house of victim, which is evident from the statement of P.W.1, so, accused-appellant has been falsely implicated in the present case.

(E) No offence under Section 3 (2) (V) of SC/ST Act is made out.Because as per the said section, the punishment can be given, if offence is committed by a person on the ground that victim is a member of Scheduled Caste or Schedule Tribe. However, in the present case, from the evidence on record, it is not established that the alleged offence was committed because the victim was a member of the said Community, rather after committing the alleged crime, as per case of the prosecution, the accused-appellant had threatened the victim by using abusive language.

On the basis of above, learned counsel/Amicus Curiae submitted that the trial court had not considered the above said facts of the case while convicting the accused-appellant by the impugned judgment and order dated 10.10.2011, so the same is not sustainable in the eyes of law and it is liable to be set aside.

Shri Chandra Sekhar, learned AGA while rebutting the contention as raised by learned Amicus Curiae on behalf of the accused-appellant has submitted that :

(a) The submission made on behalf of the accused-appellant that no offence was committed by the accused-appellant under Section 376 Cr.P.C. is totally perverse and contrary to the facts on record because from the statement given by P.W.-1/victim, it is clearly established that offence was committed by the accused-appellant. Even if there are some contradictions between the medical report and oral evidence, oral evidence will prevail as per settled pre position of law and conviction can be made and sentence awarded to an accused only on the sole evidence/statement of the victim.

(b) Argument raised by learned Amicus Curiae that F.I.R. was lodged at a belated stage is contrary to the facts of the case as in the present case, offence was committed by the accused-appellant on 24.02.2009 at about 7:00 p.m. and F.I.R. was lodged on 25.02.2009 at about 2:00 p.m., so there is no delay in lodging the F.I.R.

(c) Section 3 (2) (V) of SC/ST Act shows that if a person commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property belonging to Scheduled Caste or Scheduled Tribe shall be punishable with imprisonment for life and with fine. In the present case, offence was committed by the accused-appellant against the victim, who belongs to a particular Community which comes under the Scheduled Caste and Scheduled Tribe and threatening by the accused is a continuous offence, so the punishment has rightly been awarded by the trial court.

(d) Lastly it was submitted by learned AGA that initially charge under Section 3 (1) (12) of SC/ST (Prevention of Atrocities) Act, 1989 was framed against the accused-appellant. Subsequently, the same was converted into Section 3 (2) (V) of SC/ST Act by order dated 29.08.2011. From the perusal of order dated 29.08.2011, it is clearly established that accused-appellant had stated that he does not want cross-examination of any witnesses produced on behalf of the prosecution or give evidence after amending the charge. So, accused-appellant has rightly been convicted and sentenced under Section 376 I.P.C. for life imprisonment and the appeal is liable to be dismissed.

We have considered the submissions of learned counsel for the parties and gone through the records.

It may be well to recall, at this stage, the age old axioms which run like a golden thread through our criminal jurisprudence. They are that the accused is presumed to be innocent unless proved guilty, the quality of proof must be beyond any reasonable doubt, the Court must be morally certain of the guilt of the accused before recording conviction of the accused and in case any doubt remains lurking in the mind of the Court in this behalf, the benefit thereof must go to the accused. In the second place the burden to prove the guilt of the accused beyond all doubt rests on the prosecution and it never shifts.

The basic idea behind these principles is that the liberty of an individual is a most valuable and fundamental right which inheres in him and it should never be jeopardised unless the court, after bringing its judicial experience and acumen to bear upon the facts placed before it, comes to an inescapable conclusion that the guilt against the accused before him has been proved beyond all reasonable doubt. No doubt in the present times there has been certain amount of relaxation and latitude in the manner of proof qua certain type of offences like sexual offence against females or cruelty to them in the matrimonial home etc. but all the same the foregoing principles stand unabridged and unscathed like beacon light for the judicial courts.

This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92, wherein it has been observed that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court and if the version given by the prosecutrix is supported by medical evidence and the whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.”

This Court in the case of Mewa Lal vs. State of U.P., 2018 (102) ACC 27 has held as under :-

“26. The Hon’ble Supreme Court held that a woman who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice.

27. In State of Punjab v. Gurmit Singh and others AIR. 1996 SC 1393 the Hon’ble Supreme Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration.

28. In State of Himachal Pradesh vs. Raghubir Singh, (1993) 2 SCC 622, the Hon’ble Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.”

In the instant case, the trial court while passing the judgment and order of conviction against the accused-appellant has held that from the statement given by P.W.-1/victim and P.W.-2/Mathura Prasad, it is clearly established that on 24.02.2009 at about 7:00 p.m. Victim was returning home from Palhari Chauraha after buying medicine from the dispensary. While she was on the way, the accused-appellant all of sudden came from behind, caught hold her mouth from one hand and by other hand, dragged her in the side of canal and forcibly committed rape with her and thereafter threatened her.

Taking into consideration the said facts, the trial court held that even if there is no enmity between the family of the victim and accused-appellant but looking into the age of victim who is 50 years old lady, the victim cannot level a false charge of rape against the accused-appellant.

It has further held that the victim and Mathura Prasad have clearly stated about scratch etc. so merely because it is not mentioned in the medical report and Pathology/Supplementary report, it cannot be said a ground to reject the said evidence.

Accordingly, the trial court had convicted and sentenced the accused-appellant under Section 376 I.P.C. read with Section 3 (2) (5) SC/ST (Prevention of Atrocities) Act for life imprisonment along with a fine of Rs.5000/- and also convicted and sentenced under Section 506 I.P.C. for one year rigorous imprisonment and in default of payment of fine, he will undergo six months additional imprisonment. However, he could not be convicted under Section 504 I.P.C. and Section 7 of Criminal Law Amendment Act.

Having considered the whole prosecution and defence version and material available on record, the case as set up by the prosecution is that on 24.02.2009 at about 7:00 p.m. Victim/Smt. Soorsati was returning home from Palhari Chauraha after taking medicine from the dispensary, while she was on the way, the accused-appellant all of sudden came there from behind, he caught hold and dragged her in the side of canal and forcibly committed rape with her and thereafter threatened her with the following words :-

“साली पासिन अगर किसी से कहा तो जान से मार देंगे |”

From the statement given by the victim, the position which emerges out is that she, in her cross-examination, she has stated that at the place of incidence, there was darkness and no body was there. In the meantime, the accused-appellant caught hold her mouth and dragged her in the side of canal as a result of which she has got injury in her elbow and back as well as scratches on her face. She got swelling on her face. The accused had forcibly committed rape on her.

As per medical report on the basis of medical conducted by Dr. Nirupma Singh, District Women Hospital, Barabanki, no injuries were found on the body of the victim. In addition to the above said facts, as per the Pathology report, no spurm was found and rape was not proved.

The victim in her cross-examination has stated that there is an enmity between the accused-appellant and Chandrika, who is leader of the community of the victim and close friend of the Mathura Prasad, who is brother-in-law of the victim. There is also enmity between the family of the accused and victim because the family of victim was constructing house near the house of the victim.

Moreover, the victim in her cross-examination, also stated that she had given a statement before the Magistrate concerned under Section 164 Cr.P.C., what was told to her by the Investigating Officer, the same is quoted herein below :-

“दरोगा जी भी साथ आये थे | तब दरोगा जी ने भी बताया था | अपने मन से नहीं दिया था मजिस्ट्रेट साहब के सामने बयान दिया Fkk |”

From the side of the prosecution, Mathura Prasad was produced as P.W.-2. Although, he was not an eye-witness and was residing separately from the victim. In his statement, he had stated that at the time of conducting medical examination, he was present and there was bodily injury on the body of the victim as well as scratches on her face. However, he was not present on the place of occurrence but victim had told him that the alleged crime was committed by the accused-appellant but the same are not established by the medical report and Pathology report.

Considering the aforesaid facts, evidence adduced and material available on record, we are of the view that the learned trial court has failed to consider that the evidence led by the prosecution is not corroborated by the medical examination conducted on the victim. The evidence of P.W.2 is also a hearsay evidence, based on the evidence of victim i.e. P.W.1. Minor contradictions can be ignored but if it is against the testimony of victim, it cannot be accepted, particularly when the victim had admitted that she had not given her statement on her own but as told by the inspector. Therefore the finding recorded by the learned trial court is perverse and not sustainable in the eyes of law.

So far as the sentence and conviction awarded by the trial court as per provisions of Section 3 (2) (V) of SC/ST (Prevention of Atrocities) Act is concerned, the language of Section is important which reads as under :-

“Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property (knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member), shall be punishable with imprisonment for life and with fine.”

The said section comes into play only when the alleged offence under IPC is committed knowing that such person is a member of Scheduled Caste or Scheduled Tribe or such property belongs to such member. But in the present case, the allegation or charge is not that the alleged offence was committed knowing that the victim is member of SC/ST. The alleged casteist remark was used after committing the alleged crime. So we are of the view that the provisions of Section 3 (2) (V) of SC/ST (Prevention of Atrocities) Act are not attracted in the present case.

In view of above, the trial court has erred in convicting and sentencing the appellant. Therefore the judgment and order passed by learned trial court is not sustainable in the eyes of law and liable to be set aside.

The appeal is allowed. The judgment and order dated 10.10.2011 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, Barabanki in Sessions Trial No.839 of 2009 arising out of Case Crime No.111 of 2009 under Sections 376/504/506 I.P.C. read with section 3 (1) (12) of SC/ST (Prevention of Atrocities) Act (here-in-after referred as SC/ST Act) and 7 Law Criminal Amendment Act is set aside and the accused-appellant is acquitted. The fine, if realised, shall be refunded to the appellant forthwith. If the accused-appellant is in imprisonment, he shall be set at liberty at once, if not required in any other criminal case. In case he is on bail, he need not to surrender. The sureties and bail bonds are discharged.

Lower Court’s record be sent back.

Shri Abdul Rafey Siddiqui, Advocate has been appointed as Amicus Curiae vide order dated 05.05.2018 passed by this Court in which it has been mentioned that after conclusion of the appeal, he shall get an amount of Rs.11,000/- as his fees.

Since the appeal has been finally decided, therefore, office is directed to pay an amount of Rs.11,000/- (Rupees Eleven Thousand Only) to Shri Abdul Rafey Siddiqui, learned Amicus Curiae as his fees.

.

(Rajnish Kumar,J.) (Anil Kumar,J.)

Order Date :- 21.12.2018

Mahesh

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation