HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 15
Case :- CRIMINAL APPEAL No. – 316 of 1997
Appellant :- Ramesh another
Respondent :- State Of U.P.
Counsel for Appellant :- Rajiva Dubey
Counsel for Respondent :- Govt. Advocate
Case :- CRIMINAL APPEAL No. – 321 of 1997
Appellant :- Mukesh
Respondent :- State Of U.P.
Counsel for Appellant :- Rajiva Dubey
Counsel for Respondent :- Govt. Advocate
Hon’ble Anant Kumar,J.
1. These criminal appeals under Section 374 (2) SectionCr.P.C. have been filed by the appellants against the judgment and order dated 07.06.1997, passed by learned Sessions Judge, Lakhimpur Kheri, by which the appellants Ramesh, Dinesh and Mukesh have been convicted in S.T. No.68 of 1994 and sentenced to undergo R.I. for a period of Five Years for the offence under Section 376 (g) SectionIPC. They have been further sentenced to undergo R.I. for one year for the offence under Section 452 IPC and for the offence under Section 506 IPC they have been sentenced to undergo R.I. for six months. All the sentence have been directed to run concurrently.
2. Since both the appeals have arisen out of the same crime number and have been decided by a common judgment by the trial court, hence both the appeals have been heard together and are being decided by a common judgment.
3. Brief facts relevant for disposal of the appeals are that the complainant Ram Rakhan, S/o Maiku Lal Teli, resident of Village Sansarpur, Police Station Gola, District Kheri lodged a written complaint on 18.09.1993 at Police Station Gola to the effect that on 17.09.1993, complainant and his younger brother Pooran Lal had gone to listen Bhagwat in the house of co-villager Shyam Singh Thakur leaving his wife (prosecutrix) in the house. When the prosecutrix was alone at her home, accused persons Ramesh, son of Nokhey Lal Verma, Mukesh, son of Ramadhar Verma and Dinesh son of Rameshwar entered into the house of complainant at about 10.00 P.M. out of them Ramesh committed rape upon the prosecutrix. When she tried to raise alarm, all the three accused persons gave threat to life. However, hearing the commotion complainant and his younger brother Pooran and co-villager Lallan, son of Satalley Nai and Shiv Narain came on the spot and all the three accused persons fled away giving threat to life. Accused persons were recognized in the torch light. A request was made to lodge the F.I.R.
4. On the basis of this complaint, Chik F.I.R. was prepared and the a case was registered under Case Crime No.468 of 1993, under Sections 452, Section376, Section506 IPC, at 14.35 and entry to this effect was made in the G.D. Rapat No.38, at 14.35 hours. Prosecutrix was sent for medical examination. On the basis of F.I.R., investigation proceeded in the matter and the Investigating Officer visited the scene of occurrence. Prepared site plan, recorded statement of witnesses and after completing investigation submitted charge sheet against the accused persons-appellants.
5. After filing of the charge sheet, learned Magistrate committed the case to the Court of Sessions and charges were framed against accused persons under Sections 376, Section452, Section506 IPC. Accused persons denied the charges and claimed trial.
6. In support of its case prosecution has examined two witnesses of fact, namely, complainant Ram Rakhan as PW 1, prosecutrix as PW 2, Dr Ashok Kumar as PW 3 and I.O. Sri S.B.Tripathi as PW 4.
7. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. wherein they were referred to the evidence led by the prosecution to which they denied and stated that they were falsely implicated in th the case due to enmity.
8. After hearing the arguments advanced on behalf of accused persons and evaluating evidence on record, the learned trial court convicted the appellants and sentenced them in the above manner. Aggrieved by their conviction and sentence, the appellants have filed these appeals.
9. I have heard the arguments advanced by learned counsel for the appellants as well as learned A.G.A. for the State and perused the material on record.
10. It has been submitted by learned counsel for the appellants that in this case absolutely there is no evidence against the accused persons and the trial court without properly evaluating the evidence on record has convicted the appellants on conjecture and surmises. It has also been stated that in this case PW 1 Ram Rakhan who is complainant of the case has stated in his statement that on the date of occurrence his wife was all alone in the house. He along with his brother Pooran had gone to the house of neighborer Shyam Singh for hearing Bhagwat. When prosecutrix was alone in her house, at about 10.00 P.M. in the night complainant heard the screaming of his wife. Upon hearing screams complainant along with his younger brother Pooran and co-villager Lallan and Shiv Narain reached the scene of occurrence. Complainant was having torch in his hands. When he reached on the spot, then the accused persons Ramesh, Dinesh and Mukesh were seen and they fled away. When he reached to the house prosecutrix disclosed that accused persons raped her. Then he had lodged the F.I.R.
11. This witness has admitted in his statement that the house of Shyam Singh is at a distance of about 30-40 paces from his house. In the Bhagwat 50-60 people were present and in the Bhagwat various musical instruments like Dhol, Manjira, Baja, etc. were played. He also admitted that the night was dark and when he reached on the scene of occurrence, he saw that the accused persons fled away from the house. They were 40-50 paces away from him. This witness has further stated that he had seen the accused persons fleeing from the back side. When he reached to the house he saw that his wife was standing having all her clothings. Even none of her bangles had broken. This witness admitted that he was having enmity with co-accused Ramesh on account of some land which is in the neighbourhood of his house.
12. Prosecutrix has been examined as PW 2 who has stated that on the date of occurrence at 10.00 P.M. when she was all alone in her house some persons entered into her house. Night was dark and in the darkness she could not recognize the accused persons. She further stated that she cannot say with conformity that Ramesh, Dinesh and Mukesh entered into her house. She admitted that at the time of occurrence her husband and Devar had gone to the house of Shyam Singh for hearing Bhagwat. On hearing commotion they had come running along with co-villagers. Three persons had raped her but she could not recognize their faces. Later on this witness was declared hostile. She was further cross examined by public prosecutor and during cross examination she stated that when she raised alarm co-villagers Shiv Bhagwan and her husband had come there with torch but they had not disclosed her that they recognized the accused persons in the torch light. When she was referred to the statement recorded by the Investigating Officer under Section 161 Cr.P.C. she denied having given any such statement.
13. PW 3 Dr. Ashok Singh, Radiologist, District Hospital, Lakhimpur Kheri in his statement before the Court has stated that on 20.09.1993 he was posted at District Hospital, Lakhimpur Kheri as Radiologist and in his guidance X-Ray of prosecutrix was done. In the X-Ray epiphysis of the prosecutrix was found joined. PW 4, I.O., S.I. Suresh Babu Tripathi has proved the documents.
14. It is evident from the record that the trial court has convicted the accused-appellants on the ground that in the night accused persons were recognized in the torch light. Since they belong to the same village, it is not impossible to recognize them. The trial court has further taken a view that the prosecutrix was win over by the accused persons, that is why she resiled from her earlier statement recorded under Section 161 Cr.P.C., so it is evident that the prosecution has succeeded in proving the guilt of the accused persons. In this regard, learned counsel for the appellants has submitted that the trial court has committed a manifest error in recording a categorical finding that the prosecutrix was won over by the accused persons and a compromise had been entered into between the parties. It is also submitted that if the version of PW 1 is accepted to the extent that he had seen the accused persons running from his house, merely on this ground the charge under Section 376 IPC cannot be said to be proved as the victim herself denied having recognized the accused persons. The victim in her statement has specifically stated that it was a dark night and some unknown persons entered into the house and raped her. In her statement victim has leveled allegation of rape only against one accused Ramesh. In this regard a question was put to PW 1, who stated that when he reached on the spot, he saw that his wife was standing in her full dress and even he has not disclosed that her clothings were disturbed.
15. In these circumstances, it has been contended that when the prosecutrix herself has not named the accused persons for raping her, it will not be safe to rely upon the prosecution evidence and to uphold the conviction of the accused persons.
16. In support of its case, learned counsel for the appellants have placed reliance upon a judgment of Hon’ble Apex Court in State of Rajasthan Vs. Babu Meena, (2013) 2 SCC (Cri) 364, wherein the Hon’ble Apex Court in Paragraphs 9 10 has held as under :-
“9. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.
10. In the background of the aforesaid legal position, when we consider the case in hand we are of the opinion that the statement of the prosecutrix is not at all reliable or in other words wholly unreliable. No other evidence has been led to support the allegation of rape. Hence, it shall be unsafe to base the conviction on her sole testimony. In her evidence she had stated that she was subjected to rape at 12.00 noon when her sister Jitendera, the wife of the accused had gone to purchase milk. However, during the course of investigation she alleged that she was subjected to rape at 6.30 a.m. When confronted with the aforesaid contradiction in the cross-examination, she could not explain the aforesaid discrepancy. Her statement that she shouted for help when she was subjected to rape also does not find support from the evidence of Ramchandra Salvi (PW 11), the owner of the house where the incident is alleged to have taken place. Dr Smt Sushila (PW 12), has also not supported the allegation of rape as also the forensic science laboratory report. In the face of what we have observed above, the evidence of the prosecutrix cannot be said to be whole reliable.”
17. In the light of the aforesaid discussion, the submissions raised by the learned counsel for the appellants have substance. Accordingly, both the appeals being Criminal Appeal No. 316 of 1997 and Criminal Appeal No.321 of 1997 are allowed.
18. The conviction and sentence recorded by the trial court against the appellants is set aside. Appellants are acquitted of all the charges leveled against them. They are on bail. Their bail bonds are canceled and the sureties are discharged from their duties. Appellants need not surrender.
19. Let a copy of this judgment be forwarded to the trial court for necessary action. Let lower court record be also transmitted to the trial court.
20. A copy of this judgment be placed on the records of Criminal Appeal No.321 of 1997.
Judgment date: 01.10.2019