HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 80
Case :- CRIMINAL APPEAL No. – 2148 of 2019
Appellant :- Sajid
Respondent :- State Of U.P.
Counsel for Appellant :- Ashok Kumar Nigam
Counsel for Respondent :- G.A.
Hon’ble Pradeep Kumar Srivastava,J.
1. Heard Sri Ashok Kumar Nigam, learned counsel for the appellant, Sri Manu Raj Singh and Smt. Alpana Singha, learned A.G.A. for the State of U.P. and perused the record.
2. This criminal appeal has been preferred against the judgment and order dated 20.02.2019, passed by Special Judge (POCSO Act)/ Ist Additional District Judge, Rampur, in Special Trial No. 46 of 2018, arising out of Case Crime No. 5/2018, under Section 377 IPC and Section 4 POCSO Act, PS Tanda, District Rampur, whereby the accused-appellant has been convicted and sentenced for the offence under Sectionsection 377 IPC for ten years rigorous imprisonment and Rs. 15,000/- fine and in default of fine six months additional imprisonment and under section 4 POCSO Act for seven years imprisonment and Rs. 10,000/- fine and in default of fine four months additional imprisonment. It has further been directed by the trial court that both the sentences shall run concurrently.
3. Brief facts of the case are that on 29.12.2017, an 11 years old son of informant Mohd. Irfan had gone to Lalpur Market by his Atlas Cycle for taking some goods with Rs. 200/-. Till the late evening, he came back and told that his cycle and money were taken by accused Sajid and he sexually abused him in a sugarcane field. The incident was seen by one Mohd. Yakub of his village and he took back the child in faint condition. The child was provided treatment. On the basis of the written application, FIR was registered against the accused-appellant.
4. The Investigating Officer after completing the investigation filed charge sheet against the accused for the offence under Section 377 IPC and Section 3/4 POCSO Act. Thereafter, the learned trial court framed charges against the accused under Section 377 IPC and Section 4 POCSO Act for which the accused was tried.
5. The statement of the accused was recorded under Sectionsection 313 Cr.P.C., in which he denied the occurrence and claimed trial. He has stated that he has falsely been implicated in the case. After hearing the prosecution and counsel to the accused, the impugned judgment was passed by the learned trial court.
6. Feeling aggrieved by the impugned judgment, the accused-appellant has preferred the present criminal appeal. He has stated that the impugned order passed by the learned trial court is without any cogent and credible evidence available on record. The learned trial court has mis-appreciated the evidence on record. The judgment of conviction is illegal and bad in the eye of law. The FIR was enough delayed and for the same has not been explained. The victim himself got hostile with the other witness Mohd. Yaqub and there was no evidence on record against the accused. PW-1 was not an eye witness, therefore, the impugned order is not sustainable under law and is liable to be set aside and the accused-appellant is entitled for acquittal.
7. The prosecution has examined as many as three witnesses. PW-1 is Mohd. Irfan, who is complainant and father of the victim. He has given the statement about the incident and has proved the written report as Exhibit Ka-1. He has stated that his son aged about 11 years took Rs. 200/- and went by his cycle to Lalpur market for purchasing some domestic items. He did not come back, therefore, his mother got worried. In the evening, the brother of informant Mohd. Yaqub took the victim back to home in unconscious state from the sugarcane field of one Liyakat and said that the accused Sajid has sexually abused him. The condition of the victim was not good and he was provided medical treatment and thereafter report was lodged. During cross-examination, PW-1 has stated that the incident did not take place before him and on the information of the village people, he registered the first information report against the accused-appellant. He has further stated that the victim did not take the name of the accused Sajid nor he knows him. His son came back with his cycle. On the third day, he lodged FIR. When further cross-examined by the learned ADGC (Criminal), the witness has stated that who wrote the report, he does not remember his name. His son was found on the road and he was conscious. His son Shakib and others told him that he has been sexually abused.
.8. PW-3 is Mohd. Yaqub, on whose information, the informant got the FIR registered has stated that he found the victim in the market and on being asked, he said that his father has sent him to the market and he has come alone. The witness has stated that he did not see the victim with the accused Sajid in the sugarcane field nor he brought him back to home in unconscious condition. This witness has been declared hostile by the prosecution. In the cross-examination, he has disowned his stated under Section 161 Cr.P.C. and said that no such statement was given by him to the Investigating Officer. He has denied that he saw that the accused went behind the victim. He has also denied that he saw the accused keeping his pant in his hand and the victim and his pant was lying in the field.
9. PW-2 is victim himself who is aged about 12 years at the time of examination. His intellectual capacity was tested by the court and thereafter his statement was recorded. PW-2 has stated that while he was coming back from the market on his cycle, a person met him and started pulling him in the filed. Seeing the accused person in the court, the witness has stated that the accused did not pull him in the field nor he sexually abused him. On the statement recorded under Section 164 Cr.P.C., he has identified his signature thereon but he has stated that because of the influence of the police officer, he gave that statement. This witness has also been declared hostile and when cross-examined by the prosecution, he disowned his statement given to the Investigating Officer and before Magistrate under Section 164 Cr.P.C. He has also denied that he is giving such statement because of the threatening of the accused and his family.
10. From perusal of the statements of above three prosecution witnesses, it is clear that PW-1 is not an eye witness and whatever he has stated in the written report was based on the information given by PW-3 Yaqub and other village persons. PW-3 Yaqub has turned hostile and he has denied the FIR version and the very prosecution case. PW-2 is victim himself who has also turned hostile and has not supported the prosecution case and has specifically stated that the accused-appellant did not commit sexual abuse on him.
11. Learned trial court after going through the evidence and relying upon the medical evidence has convicted the accused-appellant. From perusal of the impugned judgment, it appears that the learned trial court has relied upon the legal proposition that the evidence of the prosecution witnesses who have turned hostile cannot be rejected in toto and their evidence cannot be taken to be off from the record and the same can be accepted to the extent it supports prosecution case upon the careful scrutiny thereof.
12. The learned trial court has also laid emphasis on the medical evidence available on record, wherein an abrasion was found on the anus of the victim and that goes to show that he was sexually abused. The learned trial court also relied upon the statement of the victim given under Section 164 Cr.P.C. in which he had stated that he was sexually abused on the point of knife by the accused and when he was faint due to sexual abuse, the accused-appellant fled away. Mohd. Yaqub brought the victim back to his house in faint condition. Therefore, it is to be seen whether the conviction of the accused-appellant is sustainable?
13. From the perusal of the Statement of PW-1, it is clear that he is not an eye witness and whatever, he wrote in his first information report was based on the information so received from PW-2 and PW-3. PW-2 and PW-3 have turned hostile and they have not supported the prosecution version. That apart there is discrepancy in the FIR version and the statement of PW-1. In the FIR, it was written that the victim informed him that he was sexually abused by the accused, whereas, in his statement he has stated that his brother Yaqub brought the victim in an unconscious condition. If the victim was unconscious, there was no question of him stating about the sexual abuse. It is not the case of prosecution that after he became conscious, he said so.
14. The PW-2 victim and PW-3 Yaqub have been declared hostile. Therefore, from the oral testimony of all the three witnesses, the prosecution version does not find support. The learned trial court has convicted the accused-appellant on the basis of the statement of the victim given under Section 164 Cr.P.C. and the medical report in which some abrasion was found on the anus of the victim. Abrasion mark on the anus of the victim may be a proof of he being sexually abused but it is not sufficient to involve the accused for the said offence as the victim himself has stated that the accused did not sexually abuse him on the date of incident.
15. So far as the statement recorded under Section 164 Cr.P.C. is concerned, the law is well settled that the statement of a witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and it can be used only for the purpose of contradiction and corroboration. It has been held in SectionGeorge Ors vs State Of Kerala Anr., AIR 1998 SC 1376 that the statement recorded under Section 164 Cr.P.C. is not a substantive evidence. With reference to Section 145 and Section157 Evidence Act, the Supreme Court has made it clear that the statement recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and it can be used only for the purpose of corroboration and contradiction.
16. In addition to above, in SectionSuresh Budharmal Kalani vs State of Maharashtra, AIR 1998 SC 3258, It has been held by the Hon’ble Supreme Court that the statement of a witness recorded under Section 164 Cr.P.C. when it is used for the purpose of corroboration, it should be used very cautiously keeping in view that such witnesses feels himself tied by that statement which is recorded on the initiative of the Investigating Officer and there is always a possibility of he being influenced by the police.
17. The learned trial court has used the statement of PW-2, the victim under Section 164 Cr.P.C. as substantive evidence and only on that basis, the accused-appellant has been held guilty. This approach cannot be justified and there is apparent perversity and illegality in the findings of the learned trial court and the impugned judgment is not sustainable in law and the same is liable to be set aside.
18. Accordingly the appeal is allowed and the impugned judgment dated 20.02.2019, passed by Special Judge (POCSO Act)/ Ist Additional District Judge, Rampur, in Special Trial No. 46 of 2018, Crime No. 5/2018, under Section 377 I.P.C. and Section 4 POCSO Act, Police Station Tanda, District Rampur is hereby set aside. The accused-appellant Sajid is acquitted from all the charges leveled against him.
19. Office is directed to transmit the lower court record to the court concerned along with certified copy of this order for information and necessary action.
Order Date :- 30.05.2019
(Hon’ble Pradeep Kumar Srivastava,J.)