HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 10

Case :- U/S 378 CR.P.C. No. – 3 of 2020

Applicant :- State of U.P.

Opposite Party :- Babu Lal Yadav Another

Counsel for Applicant :- Govt. Advocate

Hon’ble Devendra Kumar Upadhyaya,J.

Hon’ble Mohd. Faiz Alam Khan,J.

This is an application filed by the State of U.P. under Section 378(3) of the Code of Criminal Procedure (herein after referred to as “Cr.P.C.”), praying that leave to appeal be granted against the judgment and order dated 30.05.2019, passed by the learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (herein after referred to as S.C./S.C. Act), Raebareli in Sessions Trial No. 648 of 2009, State Vs. Babu Lal Yadav, which had arisen out of Case Crime No. 51 of 2008, under Sections 452, 376, 506 I.P.C. and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kheron, District Raebareli, whereby the respondent-accused, Babu Lal Yadav has been acquitted of the said charges.

The facts of the case, in brief, are that on the basis of a written report submitted by the complainant-Shanti Devi (Ext. Ka-1) on 25.02.2008, at 8.25 a.m., a First Information Report (herein after referred to as “F.I.R.”) was lodged at Case Crime No. 51 of 2008, under Sections 452, 376, 506 I.P.C. and Section 3(1)12) of S.C./S.T. Act. The F.I.R. was lodged with the assertions that at around 12.00 O’clock in the night when the complainant was sleeping, the respondent-Babu Lal Yadav, resident of Awseri Kheda came and caught hold of her and committed rape. It was further averred by the complainant in the F.I.R. that no one came to her rescue, though she and her mother-in-law and her 10 years old daughter kept on screaming and that in the incident, her clothes got torn off. She further stated that accused Babu Lal Yadav even threatened to shoot her.

After completion of the investigation, a charge sheet was submitted by the Investigating Officer against the accused-respondent, Babu Lal Yadav, under Sections 452, 376/511, 506, I.P.C. and Section 3(1)(12) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, on the basis of which cognizance was taken and the matter was registered as Sessions Trial No. 648 of 2009. The accused respondent was charged for committing offence under Sections 452, 506 I.P.C. on 02.08.2010 and thereafter on 27.06.2015 for altered charges under Section 376, I.P.C. and Section 3(2)(v) of S.C./S.C. Act. The accused-respondent, Babu Lal Yadav pleaded not guilty and accordingly claimed trial.

The prosecution produced 7 prosecution witnesses, namely, (1) the complainant-Shanti Devi (P.W.1), Umrai (P.W.2), Dr. Rajiv Kumar Dixit (P.W.3), Smt. Maya Devi (P.W.4), Dr. Rashmi (P.W.5), Head Constable Karunesh Singh (P.W.6) and Smt. Preeti Bala Gupta, Investigating Officer (P.W.7).

The complainant in her deposition before the court stated that she belongs to category of Scheduled Caste, whereas accused-respondent belongs to Yadav community and is a resident of another village. She further stated that she had an acquaintance with respondent even before the incident and that the occurrence took place at about 12.00 O’clock in the night while she was sleeping inside the house and that her husband is a labourer who had gone to Bihar at some brick kiln in connection with his employment. She further stated that her daughter aged about 10-12 years was sleeping with her mother-in-law and that her 3 years’ old son was sleeping with her and further that she was sleeping under the Chhapper, whereas her mother-in-law was sleeping in adjoining Kodhari. In her deposition, P.W.1 further stated that the accused-respondent, Babu Lal Yadav came to her house and pressed her mouth and further that he tore her Blouse and Petticoat at the point of Katta (country made pistol). She further stated that accused respondent raped her and at the time of incident a lantern was lighting. In her statement, she further stated that on her screaming, her mother-in-law along with her daughter woke up and thereafter, accused-respondent, Babu Lal Yadav fled jumping off the wall.

P.W.2, Umrai, who is the mother-in-law of the complainant, in her statement before the court stated that at around 12.00 O’clock in the night, everyone was sleeping in the house and that her daughter-in-law was sleeping under the Chhapper and that she was sleeping in the adjoining Kodhari along with her grand daughter and that there was moonlight. She further stated that her daughter-in-law shouted that the accused-respondent had come to her and on hearing her shouts, she went to her daughter-in-law along with her grand daughter and saw Babu Lal Yadav running away. She deposed further that her daughter-in-law told that Babu Lal Yadav had fled after raping her.

Radiologist, Dr. Rajiv Kumar Dixit (P.W.3), who conducted ultrasound of the complainant on 26.02.2008 proved the ultrasound report and stated that the said report was prepared under his signatures which also carried the thumb impression of the complainant.

Maya Devi (P.W.4), who is the daughter of the complainant, in her statement before the court stated that she was sleeping at the time of occurrence when the accused-respondent entered the house jumping the wall and tore off her mother’s clothes and committed rape on her.

P.W.5, Dr. Rashmi had medically examined the complainant on 25.02.2008 at 1.30 p.m. and her statement before the court she stated that in the internal examination no sign of any injury on the private part of the complainant was found and that the complainant was pregnant for a period of 8 weeks. She proved the medical report and deposed that the same was under her signatures (Ext. Ka-5). She also stated that on receipt of pathological and ultrasound reports, she prepared supplementary medical report on 27.02.2008. She also deposed that no live or dead sperm was found and that the complainant was pregnant for a period of 6 weeks and 6 days. She further stated in her deposition that on the basis of medical reports, no definite opinion can be given about rape.

The statements of Head Constable Karunesh Singh (P.W.6) and Smt. Preeti Bala Gupta, Investigating Officer (P.W.7) were also recorded.

After closure of the evidence of the prosecution, statement of accused-respondent was also recorded under Section 313, Cr.P.C. who denied the allegations and stated that he had falsely been implicated.

The defence also produced Manoj Shukla, Superintendent, Community Health Center, Jagatpur, Raebareli as D.W.1.

The trial court considered the evidence available on record and returned a finding on elaborate analysis of the statement of the witnesses that the allegations levelled against the respondent are false and that the prosecution has not been able to prove the charges against the accused-respondent beyond reasonable doubt. Learned trial court accordingly acquitted the accused of the charges for which he was tried.

Seeking leave to appeal in this case, learned Additional Government Advocate has argued that despite there being enough evidence available proving the charges against the accused, the learned trial court has committed manifest error by returning the finding that charges were not proved. His further submission is that since the prosecution witnesses in this case, namely, the complainant, her mother-in-law and daughter are residents of rural area and are illiterate as such minor contradictions in their statements are natural and hence on the said basis finding the charges not proved by the learned trial court, cannot be justified.

We have considered the arguments made by learned Additional Government Advocate appearing for the State.

As observed by Hon’ble Supreme Court in the case of State of Rajasthan Vs. Shera Ram alias Vishnu Dutta, reported in (2012) 1 Supreme Court Cases 602, though there is no substantial difference between an appeal against conviction and an appeal against acquittal, however, what is to be borne in mind while dealing with an appeal against acquittal is that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the lower court is a reasonable one and the conclusion reached by it is based on the material on record, the acquittal may not be interfered with. The Hon’ble Supreme Court goes on to further observe in the case of Shera Ram (supra) that though there is no absolute restriction to re-look the entire evidence on which the order of acquittal is based, however, it is only if the appellate court finds that the lower court’s decision is based on an erroneous view and is against the settled principles of law that the order of acquittal should be set aside. Paragraphs 10 and 11 of the judgment in the case of Shera Ram (supra) are relevant which are extracted herein below :

“10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

11. Also, this Court in Abdul Mannan case had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court’s decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside”.

Yet in another case of Shyam Babu Vs. State of U.P., reported in (2012) 8 Supreme Court Cases 651, Hon’ble Supreme Court has reiterated the principles on which the appellate court may interfere with the order of acquittal passed by the trial court. Hon’ble Supreme Court has stated in the said case of Shyam Babu (supra) that the appellate court while entertaining the appeal against the judgment of acquittal rendered by the trial court is though entitled to re-appreciate the evidence and come to an independent conclusion, however, such interference with the order of acquittal should not be made unless the decision of the trial court is found perverse or unreasonable resulting in miscarriage of justice. The said principle laid down by Hon’ble Supreme Court can be found in para-16 of the judgment in the case of Shyam Babu (supra), which is reproduced herein below:-

“16. It is true that it would not be possible for the appellate Court to interfere with the order of acquittal passed by the trial Court without rendering specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court while entertaining an appeal against the judgment of acquittal by the trial Court is entitled to re-appreciate the evidence and come to an independent conclusion. We are conscious of the fact that in doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. We also reiterate that if two views are possible on a set of evidence, then the appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal”.

Keeping in view the aforesaid principles of law enunciated by the Hon’ble Supreme Court regarding scope and ambit of this Court in an appeal filed against the judgment of acquittal, we now proceed to examine whether the prayer made by the State in this case for grant of leave to appeal can be granted. Such grant of leave will be permissible only if the judgment of acquittal in this case is found suffering from any manifest legal infirmity or is found based on erroneous appreciation of evidence.

The statement of the complainant (P.W.1) is relevant to be discussed at this juncture. In her cross-examination, P.W.1 has stated that accused-respondent is 70 years of age and she had acquaintance with him. She has also stated that her daughter and mother-in-law, who were sleeping in the adjoining Kodhari did not wake up when she was screaming and that they awoke after the incident. She further stated that her son who was sleeping with her on the same cot did not fell down even during and after the incident of rape. It has also been deposed by her that boundary wall of her house is about 8-10 feets’ height and that all the doors of her house were closed at the time of incident and that on the outer side of her house there was a door which was also closed.

The question which falls for consideration on the basis of statement of P.W.1 is that when all the doors of the house were closed, how did the accused-respondent reached the complainant and that if the mother-in-law and her daughter did not come to her at the time of incident then how did they state that the accused ran away after committing rape. It is also relevant to be noticed at this juncture that P.W.1 has also stated that there was neither any ladder nor any bamboo lying nearby. In this view, it is difficult to comprehend that the accused who was 70 years of age at the time of incident would have entered the house jumping the wall. It is not a case of the prosecution that respondent had entered the house on breaking open the door. P.W.1 has even stated that she did not know where from the respondent came to her at the time of incident.

Another relevant fact is that the P.W.1 has stated in her deposition that despite the fact that she was screaming, no one came to her rescue. This statement of the P.W.1 also does not appear to be believable as her mother-in-law and daughter were sleeping in the adjoining Kodhari.

We also find it relevant to notice that P.W.1 has stated in her statement before the court that respondent at the time of incident had assaulted her on her back, though in the medical examination, no such sign of any injury caused by such assault was found. Even P.W.2 who is mother-in-law of the complainant has stated that lantern was not kept lighting and that her vision in the night was also blurred. She further stated that no door of her house was open so that anyone could have fled from her house.

Another aspect of the matter which has drawn our attention is that P.W.4, who is daughter of the complainant in her deposition has stated that when she reached her mother, she found that her brother was sleeping on the cot. It is, thus, difficult to infer that her brother would be sleeping after the incident of rape which was said to have been committed by the accused upon the complainant while she was sleeping on the same cot with her son. She also stated that she did not find any broken piece of bangles.

The statement of P.W.5, Dr. Rashmi who medically examined the complainant is also relevant to be noticed. The doctor has stated that on the basis of medical report, no opinion about rape can be given and that no internal or external injury on the body of the complainant was found, neither any sign of scratch on the body, or hand or cheek of the complainant was found.

Learned trial court scrutinizing the evidence available on record has concluded that when the complainant was sleeping near the door of the house which was closed, it was not possible for the accused to have raped the complainant. Giving this reason, the learned trial court has concluded that it is not proved that the accused respondent had gone to the complainant. Learned trial court has also doubted the case of the prosecution giving further reason that a person of 70 years of age cannot jump the wall which is 8-10 feets high. Learned trial court has also concluded that it has come in evidence that width of the cot was 2 feets on which the complainant was sleeping with her child and in these circumstances commission of rape was not probable for the reason that daughter of complainant (P.W.4) in her statement has stated that when she reached the place of alleged occurrence, she found that her brother was sleeping on the same cot.

Having examined the judgment passed by the learned trial court, what we find is that learned trial court has considered the evidence available on record thoroughly and has rightly given a finding that charges against the accused-respondent are not proved.

In any case, even if another view in this matter is possible, in absence of any compelling and substantial reason, this Court while dealing with appeal against acquittal would not interfere with the judgment of acquittal unless the approach of the court below is found to be manifestly vitiated while it considered the evidence.

As discussed above, in the instant case, we are of the considered opinion that the view taken by the learned trial court for acquitting the accused-respondent is a possible and plausible view on the basis of analysis of the evidence available on record and further, we do not find any perversity in the finding recorded by the learned trial court.

Accordingly, the application seeking leave to appeal in this case is rejected.

Consequently the appeal is also, thus, dismissed.

Order Date :- 9.1.2020

Sanjay