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Pyare Lal vs State Of U.P. on 5 July, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 40

Case :- CRIMINAL APPEAL No. – 1017 of 2014

Appellant :- Pyare Lal

Respondent :- State Of U.P.

Counsel for Appellant :- M.R. Singh,Amit Tripathi,Jag Narayan,L.M. Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Amreshwar Pratap Sahi,J.

Hon’ble Bachchoo Lal,J.

Heard Sri Amit Tripathi, learned counsel for the appellant and Sri G.P. Tripathi learned counsel for the State.

The appeal arises out of the conviction of the appellant in Session Trial No. 48 of 2008 arising out of Case Crime No. 203 of 2007, Police Station-Gajner, District-Kanpur Dehat under the provisions of Sections 376, 323 IPC read with Section 3(2)(5) of the Schedule Castes and Tribes (Prevention of Atrocities) Act, 1989 by the learned Additional Session Judge, Fast Track Court, Kanpur Dehat.

The appellant was convicted under Section 376 to undergo ten years of rigorous imprisonment with Rs.5,000/- as fine, and in the event, of default of payment of fine to suffer ten months further incarceration. Similarly, under Section 323 IPC, the appellant was awarded a sentence of one year simple imprisonment with Rs.1,000/- as fine, and in the absence of deposit of fine to undergo two months further simple imprisonment.

The trial court, however, further went on to hold the appellant to be guilty of having been committed the offence under Section 3(2)(5) of the SC/ST Act, as a result whereof, the sentence awarded to the appellant under the aforesaid provisions of the IPC stood enhanced with the aid of the SC/ST Act for suffering an incarceration of life imprisonment together with Rs.5,000/- as additional fine, and in the event of default to undergo twelve months further imprisonment.

The incident is of 13th July, 2007 at about mid-night when it is alleged, that the prosecutrix who is the daughter of the informant late Kamlesh, was allegedly lifted by the appellant and one other person, and thereafter she was tied with a rope and was raped in a nearby orchard.

The case of the prosecution is that the FIR was lodged the very next day by the informant late Kamlesh, the father of the prosecutrix alleging about the commission of the said offence wherein it was narrated that unknown persons had committed the said offence, and after they had left the prosecutrix weeping, she came back to her house after gaining consciousness and since her state of health was serious she was in need of immediate medical help, as a result whereof, the report was being lodged with a request to take appropriate action.

The FIR, therefore, does not disclose or nominate the appellant, but at the same time, it refers to the commission of the offence of rape and about the injuries having been suffered by the prosecutrix.

The FIR was lodged promptly on the very next day in the morning and the investigation commenced with the preparation of the respective memos relating to the place of the incident, as well as, the clothes of the prosecutrix. The prosecutrix was sent for medical examination at the District Female Hospital where she was examined and the injuries sustained by her were detailed therein with a further request for expert opinion and management to the Dufferin Hospital, Kanpur.

The victim according to the Medical Examination Report is indicated to be 6-7 years and the injuries of sexual assault have been clearly noted therein. A supplementary report was also given on 23rd July, 2007 along with the serological report. Even though, no spermatozoa was found on the slides that were prepared, yet the forensic examination of the clothes of the prosecutrix disclosed the existence of traces of human sperm and human blood. With the aforesaid examination, the Investigating Officer Netrapal Singh who has been examined as PW-9 proceeded with the investigation, and according to him as per the statement and deposition before the Court, none of the proposed witnesses did nominate the appellant as the accused in the said case. A police report under Section 173(2) Cr.P.C. requesting for final closure appears to have been moved but the same was neither accepted nor rejected and a further investigation was carried out whereafter a fresh report was submitted by Sri Prem Chandra, Sub-Inspector of Police who was examined as PW-10. The Circle Officer conducted the investigation upon addition of the section under the SC/ST Act whereafter a charge-sheet was filed against the appellant indicating that the offence had been committed by him. It is on the strength of such investigation that the trial proceeded. It may also be noticed on record that no statement of the prosecutrix was got recorded under Section 164 Cr.P.C.

It may be pointed out that during the investigation itself, the informant late Kamlesh died after two months of the incident but from the case diary as per the lower court record, we find that his statement under Section 161 Cr.P.C. has been recorded by the First Investigating Officer Netrapal Singh on 18th July, 2009.

Kamlesh, therefore could not be produced in evidence and rather his brother Vishwanath came forward to depose as PW-1. The prosecutrix deposed before the Court as PW-2. The Medical Officer Dr. Gyan Devi Sachan who had conducted the initial medical examination was examined as PW-3. Smt. Jai Devi another aunt of the prosecutrix was examined as PW-4. Dr. R.P. Gupta the senior radiologist who had carried out the supplementary examination report and radiological examination of the prosecutrix was examined as PW-5. Laxmi Niwas Misra, the Circle Officer who had conducted the investigation after the addition of the provisions of the Schedule Castes and Schedule Tribes Act was examined as PW-6, Rameshwar Dayal, the constable who was present at the police station when the FIR was registered and who prepared the check FIR was examined as PW-7, the mother of the prosecutrix Smt. Guddi was examined as PW-8, the First Investigating Officer, Netrapal Singh was examined as PW-9 and the second Investigating Officer Prem Chandra was examined as PW-10. Dr. R.K. Srivastava, the doctor who carried out the ultrasound examination of the prosecutrix was examined as PW-11.

The statement of the appellant under Section 313 Cr.P.C. was recorded thereafter whereupon the impugned judgment was delivered convicting and sentencing the appellant.

Sri Tripathi, learned counsel for the appellant primarily advanced his submissions contending that the identity of the appellant of having committed the offence was nowhere proved beyond reasonable doubt and the incident occuring at the dead of night, there was no evidence whatsoever to indict the appellant and implicate him in the incident. The contention is that this was a clear case of false implication which is also evident from the fact that the FIR was lodged against unknown persons, and further there was no material collected during investigation so as to nominate the appellant. He submits, that when the FIR was filed, then in view of what was deposed before the Court about the involvement of the appellant by the prosecutrix and PW-1 as well as PW-8, the same does not inspire confidence at all, inasmuch as, if the prosecutrix who was examined as PW-2 had disclosed the name of the appellant the very next day of the incident or sometime thereafter, then there was no occasion for not nominating the appellant in the FIR. He submits that the reason for this was apparent on a perusal of the evidence that since the informant late Kamlesh, PW-1 Vishwanath and his sister were all accused in the murder of the appellant’s brother Lalman, they were trying to encash this incident in order to pressurize the appellant not to give any evidence or pursue the case of the murder of his brother. According to him the non disclosure of the name and the later on false implication of the appellant was only to bargain with the appellant in order to obtain a desired result in the trial that was being faced by the accused in the murder of the brother of the appellant.

He, therefore, submits that the motive for false implication was writ large, and it is for this reason that the appellants name was later on introduced during the ultimate investigation that was made and carried out when PW-1, PW-2 and PW-8 are alleged to have given their statement under Section 161 Cr.P.C. almost three months after the incident. He submits that this embellishment was malafidely utilized by the prosecution for chargesheeting the appellant without there being any direct or remote evidence of the involvement of the appellant in the incident. He submits that the total silence in the FIR and the complete non-disclosure of the name of the appellant by the said witnesses for months together after the incident is a clear indicator of the fact that the appellant was sought to be falsely implicated after the family members of the informant could not succeed in the bargaining with the appellant.

He has further pointed out that the appellant at that point of time was approximately aged about 54 years and the nature of injuries in the medical report nowhere matches with the physical status of the person who may have committed the said offence and might have been of a much younger age. He then submits that the deposition of PW-1, PW-2 and PW-8 is untrustworthy, inasmuch as, PW-1 has stated that the prosecutrix was almost unconscious for four days whereas PW-8, the mother of the prosecutrix has stated that she had informed her about the name of the appellant the very next day. He further points out that the statement of the doctor, namely, Smt. Gyan Devi examined as PW-3 clearly indicates that the prosecutrix was fully conscious, and therefore, there is a complete contradiction in the statement of the witnesses which dislodges the case of the prosecution to the effect that the prosecutrix was unconscious, and therefore, the disclosure of the name was made later on. He submits that the trial court has completely erred in drawing the conclusions on these issues and the findings recorded is against the weight of evidence on record.

Thus, in sum and substance on the merits of the commission of the offence, Sri Tripathi contends that this was a clear motivated case of false implication.

On the issue of the provisions of the Schedule Castes and Tribes (Prevention of Atrocities) Act, 1989 being imposed on the appellant, Sri Tripathi submits that none of the ingredients so as to establish that the appellant had knowingly and deliberately committed the offence willingly so as to humiliate the prosecutrix as she was a member of the Schedule Caste is nowhere established, and in the absence of any such evidence merely because the prosecutrix was a member of the Schedule Caste, the aforesaid provisions could not have been invoked in order to award a higher sentence of life imprisonment on the appellant.

Replying to the aforesaid submissions the learned counsel for the State has urged that looking to the statement of the prosecutrix coupled with the medical evidence on record, there is absolutely no room for doubt that the offence of rape was clearly made out, and since the prosecutrix has nowhere faltered in her deposition in nominating the appellant, there is no reason for any doubt much less reasonable doubt on the involvement or false implication of the appellant.

His second submission is that the contention of the appellant that he has been falsely implicated is incorrect, inasmuch as, if the complainant wanted to implicate the appellant, then there were no reason to wait for the disclosure of the name, and therefore, the FIR was an honest version awaiting the correct disclosure of the name by the prosecutrix. He submits that if false implication was intended then the informant could have straight away nominated the appellant in the FIR itself without waiting for any further information, as according to the depositions, the name of the appellant had already been disclosed.

He further submits that there was sufficient evidence to establish the guilt of the appellant who in no uncertain terms had been nominated by the prosecutrix who was only seven years old and the appellant belongs to the same village. The identity of the appellant therefore remains undisputed and there was no material set up by the defence to dispute the identity of the appellant and his involvement in the commission of the offence.

Coming to the issue of the involvement of the appellant under the provisions of the Schedule Castes and Schedule Tribes Act, there was sufficient evidence to demonstrate that the appellant had knowingly and willingly committed the offence with full knowledge that the prosecutrix was a member of the Schedule Caste and this was done with an intention to insult and outrage her modesty. In such circumstances the trial court has not committed any error on that count.

We have considered the submissions raised and at the very outset we may record that the appellant appears to have undergone the entire sentence of 10 years imprisonment after the trial commenced and during the pendency of this appeal.

The question of the commission of the offence and involvement of the accused has to be tested on the evidence which has been brought on record, and to that extent, the findings recorded by the trial court with regard to the commission of the offence of rape does not appear to be suffering from any infirmity, inasmuch as, the medical evidence on record, clearly establishes that the injury caused to the prosecutrix was a direct sexual assault falling within the definition of rape under Section 376 IPC. We have, therefore, no doubt in our mind of the commission of the offence outraging the modesty of the child of seven years of age. Thus to that extent the findings of the trial court cannot be interfered with.

The principal ground on which the appeal has been filed is about the identity of the appellant and his defence of false implication. It is evident from the statement under Section 313 Cr.P.C. of the appellant that no such defence was set out to claim benefit of a doubt on the strength of material on record. In such circumstances, we find that no such plausible defence or material evidence was adduced by the appellant on this score except for the existence of an enmity and legal contest in a murder trial in which the appellant’s brother was murdered. It is correct that the informant and his family members are accused and according to the learned counsel for the appellant have also been convicted in the said case thereafter. It is also correct that at the time of the incident, the said criminal case was pending and the appellant was doing the necessary pairvi in the said case. The element of doubt therefore does arise that a bargain was sought to be struck by the family members of the prosecutrix in order to absolve them in the said murder trial, but at the same time, had this been the intention to implicate and then bargain, we find no plausible explanation coming forth on behalf of the appellant as to why the informant could not have easily nominated him in the FIR itself. To our mind the nomination had been deferred in order to obtain a necessary confirmation about the involvement of the appellant as it was a night incident.

In this regard we have noted a very peculiar fact on record, namely, the statement of the first Investigating Officer Netrapal Singh who while deposing as PW-9 on 31st October, 2009 and 15th January, 2010 has stated that when he was carrying out the investigation, no one on behalf of the complainant did ever bring to his notice the name of the appellant. We have cross checked this statement of the said Investigating Officer from the lower court records which also contains the case diary, and from there, we find that in the memo which was prepared on 18th July 2007, the same Investigating Officer Netrapal Singh under his signatures had recorded the statement of the first informant late Kamlesh who had clearly stated that the name of the appellant has been disclosed by his daughter to him. We are surprised as to why the said Investigating Officer did not proceed with the filing of the charge-sheet at that stage itself and appears to have played foul taking advantage of the death of Kamlesh shortly thereafter. It is in this background that the statement of the mother, the victim and the other witnesses under Section 161 Cr.P.C. in further investigation assumes importance and it explains that the disclosure was not late as suggested by the learned counsel for the appellant but had been made promptly by the informant himself before his death in July 2007 itself. This manipulation and deliberate lapse on the part of the Investigating Officer and false testimony before the trial court therefore leads us to believe that the investigation by the first Investigating Officer Netrapal Singh was clearly tainted and for this reason, we are not prepared to accept the argument on behalf of the appellant that there was no prompt disclosure of the name of the appellant.

In this background and in view of the direct testimony of the prosecutrix, we do not find any reason to entertain any doubt much less a reasonable doubt in favour of the appellant on that count. His identity therefore stands fixed, and therefore, the trial court on the basis and strength of such evidence has rightly convicted the appellant under Section 376 IPC read with Section 323 IPC.

Coming to the part of the sentence that has been awarded to the appellant securing his imprisonment for his life on the strength of his involvement under the provisions of the Schedule Castes and Tribes (Prevention of Atrocities) Act, 1989. There is no evidence much less material evidence either recorded during investigation or even during trial in the testimony of any of the prosecution witnesses that may even remotely indicate that the appellant had committed the offence knowingly and intentionally so as to outrage the modesty of the prosecutrix belonging to the member of the Schedule Caste community. We are persuaded to take this view in view of the law explained by the Apex Court in the case of Asharfi Vs. State of U.P. 2018 (1) SCC 742, (Paragrah nos. 5 to 8) as followed by a Division Bench of this Court in the case of Ramakant Vs. State of U.P. in Criminal Appeal No. 1084 of 2012 decided on 16.02.2018. In the aforesaid circumstances and in the absence of any such evidence, the conviction by the trial court under the provisions of Section 3(2)(5) of the said Act is unsustainable.

We partly allow the appeal and set aside the conviction of the appellant for imprisonment with life under Section 3(2)(5) under the provisions of the Schedule Castes and Tribes (Prevention of Atrocities) Act, 1989 and the fine imposed in addition thereto to the extent of Rs.5,000/- but we uphold the conviction of the appellant under the provisions of Section 376 IPC read with Section 323 IPC. We also uphold the compensation awarded to the victim.

Since the appellant appears to have already undergone the period of sentence, he would be entitled to be set at liberty forthwith.

We, accordingly, direct the trial court to calculate the period of incarceration of the appellant, and the appellant if having found to have completed the period of imprisonment for the offence under Section 376 read with Section 323 IPC, he shall be set at liberty forthwith and the bail bonds shall stand discharged.

The appeal stands partly allowed with the aforesaid observations.

Order Date :- 5.7.2018

S.Chaurasia

 

 

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