HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 10

Case :- U/S 378 Cr.P.C. No. – 20 of 2020

Applicant:- State of U.P.

Respondents:- Prakash Giri @ Ram Another

Counsel for the Applicant:- Govt. Advocate

Hon’ble Devendra Kumar Upadhyaya,J.

Hon’ble Mohd. Faiz Alam Khan,J.

1. Heard learned A.G.A. for the State and perused the judgment of the trial court.

2. By means of instant application moved under Section 378(3) of Cr.P.C., the State has prayed for granting leave to appeal against the impugned judgment and order dated 19.10.2019 passed by learned Additional District and Session Judge/Special Judge, S.C./S.T. (Prevention of Atrocities) Act, Hardoi in Session Trial No.759 of 2013, “State Vs. Prakash Giri alias Ram” arising out of Case Crime No.456 of 2013, under Section 376 I.P.C. and Section 3(2)(V) of S.C./S.T. (Prevention of Atrocities) Act, Police Station- Beniganj, District- Hardoi, whereby the respondent- Prakash Giri alias Ram has been acquitted of all the charges framed against him.

3. The prosecution story as is borne out from the record is that a First Information Report was lodged on 29.09.2013 at 7:00 A.M. by informant- Guddu Raidas stating therein that his wife was seriously ill and despite being treated she was not keeping good health and on the recommendation of many villagers, he approached a baba, namely, Prakash Giri alias Ram, who was an exorcist. On 28.09.2013 at about 3:00 P.M. in the afternoon, he brought the aforesaid baba to his house and he after performing some rituals at his house gave a ”kush’ to him with a direction to leave that in the water of a canal situated at about one kilometer from his house. He further directed that he should not return back prior to one hour and thereafter asked his young children and old mother to go out of his house and thereafter committed rape on his wife against her will. When he returned back from the canal, his wife narrated the whole story.

4. On the basis of the above-mentioned information an F.I.R. was registered as Case Crime No.456 of 2013, under Section 376 I.P.C. and 3(2)(V) of S.C./S.T. Act against the accused Prakash Giri alias Ram at Police Station- Beniganj, District- Hardoi.

5. The investigating officer after investigation of the crime submitted a charge-sheet under above-mentioned penal sections and on the case being committed, the trial court framed charges under Section 376 I.P.C. and 3(2)(V) of S.C./S.T. Act against the respondent. Respondent denied the charges and claimed trial.

6. The prosecution in order to prove its case presented P.W.1- Guddu Raidas (informant), P.W.2- Prosecutrix, P.W.3- Constable Krishna Pal Singh, P.W.4- Dr. Aruna Singh, P.W.5- Investigating Officer Prem Kumar Mishra.

7. After the closure of the evidence of the prosecution, the statement of the accused/respondent was recorded under Section 313 of the Cr.P.C., wherein the respondent has denied to have committed the crime and further stated that he belongs to ”Naga Saadhu’ and at the time of baptism, he was made impotent, hence he was not in a position to commit rape.

8. The trial court after appreciating the evidence available on record found that the prosecution has failed to prove its case beyond reasonable doubt and by impugned judgment and order acquitted the respondent/accused person of all the charges levelled against him.

9. Aggrieved by the above-mentioned judgment and order, the State has preferred this appeal as well as instant application to grant leave.

10. Learned A.G.A., while pressing the application for grant of leave submits that the trial court has committed manifest error in appreciating the evidence available on record and has accorded the acquittal of the respondent on the basis of ”surmises’ and ”conjunctures’ and has completely forgotten that the evidence of a victim of rape is equal to the testimony of an injured person and, therefore, the same could not be brushed aside lightly.

11. It is further submitted that the finding of the trial court, that there was no eye-witness of the crime is patently wrong as it is hardly possible to get a witness of the crime which is committed at a lonely place and moreover the trial court has also not considered this aspect of the matter that prosecutrix in her statement has categorically stated that at the time of commission of crime, the respondent has constantly put his chimta on her neck and, therefore, she was not in a position to raise an alarm. It is also submitted that once, the ”saree’ and ”petty-coat’ of the prosecutrix was given in the custody of the police, it was the duty of the investigating officer to send the same for forensic examination and if the investigating officer has not sent the same for forensic examination, no benefit of the same could be extended to the accused person. It is next submitted that the prosecutrix is an illiterate rustic villager and therefore her testimony is to be appreciated in the background of this fact. He submits that the judgment and order of the acquittal passed by the court below is patently wrong and the State be allowed to challenge the same by filing the appeal and leave to grant to the State for the purpose.

12. Perusal of judgment of the trial court would reveal that the P.W.1- informant, namely, Guddu Raidas in his statement recorded before the court below has supported the First Information Report as well as the facts stated therein and has stated that he brought respondent to his house to treat his wife as she was not keeping good health for a long time and the respondent after doing some pooja in his house asked him to dispose of ”kush’ in a canal and further directed him not to return before an hour. He further stated that his father and brother-in-law also went with him and thereafter, the respondent asked all his family members to go out of his house and when he returned back after an hour, he was informed by his wife (prosecutrix) that the respondent has committed rape on her. He went to the police station on the same day but nothing was done and, thereafter, on 29.09.2013 at about 7:00 in the morning, he went to the police station along with Vijay Pal, Gaya Prasad and his wife and lodged the First Information Report. He further stated that he had given the clothes, which his wife had wore at the time of incident, to the police. P.W.2- the prosecutrix in her statement has stated that respondent was brought to treat her by her husband as she was not keeping good health at that point of time and respondent after doing some pooja asked her husband to dispose of a ”kush’ in a pond with a further direction not to return before an hour. She further stated that after the departure of her husband, respondent threatened her with his chimta and forced her to go in a ”kothari’ and committed rape by putting the chimta on her neck. She narrated the whole story to her mother-in-law and also that at the time of committing rape respondent had asked her mother-in-law and children to go out of the house. She went to the police station to lodge the F.I.R. on the same day, however, her report was not lodged and it was on the second day, the F.I.R. was lodged. P.W.3- Constable Krishna Pal is an official witness, who has approved the Chik F.I.R. and G.D. P.W.4- Dr. Aruna Singh had medically examined the prosecutrix and has prepared the medical examination report and supplementary report, while P.W.5- I.O. Prem Kumar Mishra has proved the investigation done by him and also the submission of the charge-sheet.

13. Having perused the judgment of the trial court, we find that the trial court has acquitted the respondent on following counts:-

(I) The prosecutrix in her examination-in-chief has stated that she could not raise cries at the time of rape as the respondent had pressed her neck, but P.W.1- Guddu Raidas in his statement has stated that he was informed by his wife that at the time of incident she was continuously making alarm for about half an hour but nobody came to her rescue.

(II) It is proved by the evidence available on record that many houses are situated around the house of the informant and all these houses belongs to the family members of the informant and if this statement of the informant is taken as true that the prosecutrix was continuously raising an alarm during the course of commission of rape then those who are residents in these houses should have heard her cries and any one of them might have arrived at the scene.

(III) The prosecutrix in her statement has stated that she was taken in a ”kothari’ by the respondent and there she became unconscious and she regained her consciousness at the police station. So she could not tell anything about the commission of rape.

(IV) The prosecutrix has also stated that during the course of commission of rape the bangles wore by her were broken and have caused injuries on her elbow and she also sustained injuries on her knees whereby the blood was also oozing. However, in absence of any injuries on the person of the prosecutrix her statement could not be believed.

(V) The informant- Guddu Raidas in his statement had stated that he was married 15 years ago and at that time the age of his wife was 18-20 years and at the time of the recording of his statement age of his wife was 35 years. Prosecutrix has also stated that she was married about 25 years back and the age of her eldest son is 18-20 years. The age of prosecutrix, on the basis of statement will be around 35 years on the date of occurrence but P.W.4- Dr. Aruna Singh in her statement has stated that the lady which she medically examined by her was about 18 years old and in this age only a difference of 1 or 2 or 3 years could be made.

(VI) P.W.4- Dr. Aruna Singh has also stated that the lady, who was examined by her was identified by her husband. Therefore, the doctor has examined a lady, who was identified as prosecutrix by her husband and it is highly suspicious that the lady who was examined by Dr. Aruna Singh was the prosecutrix as she could not be less than 35 years at the time of medical examination, while the lady who was medically examined by her was aged about 18 years.

(VII) The prosecutrix has admitted in her statement that about Rs.10,000/- were spent by her husband in lodging the F.I.R. and she had also got Rs.50,000/- from the State, out of which Rs.10,000/- were taken by the Advocate from whose help she got this money. The respondent in his statement has stated that a racket is active in that area, the members of which used to lodge false First Information Reports of rape against innocent persons and secure the grant from the Government, illegally.

14. There cannot be any other view to the proposition that in an appeal against acquittal, the Court has full power to review the evidence upon which the acquittal has been recorded. However, it has to be remembered and kept in mind that the initial presumption of innocence, which was available to the respondent at the time of trial has been further fortified by the order of acquittal and the decision of the trial court could be reversed only for very substantial and compelling reasons. However, substantial or compelling or strong reasons are not to be meant to curtail undoubted powers of an appellate court in an appeal against acquittal and the appellate court may come to its own conclusion on the basis of re-appreciation of evidence, but in doing so, the Court should not only consider every evidence available on record which may have a bearing on the questions of fact and the reasons given by the trial court in support of the order of acquittal in arriving at a conclusion, but also to express those reasons in its judgment to show that the acquittal was not justified. Our view is fortified by the judgments of the Hon’ble Supreme Court passed in Ajmer Singh Vs. State of Punjab, 1953 SCR 418, Sanwat Singh and Others Vs. State of Rajasthan, AIR 1961 SC, 715 and Sadhu Sharan Singh Vs. State of Uttar Pradesh and Others reported in 2016 Cr.L.J. 1908.

15. Having perused the judgment of the trial court in the background of the above-mentioned legal position as well as keeping in view the settled principles of appreciation of evidence, we are of the view that the prosecution has to prove the guilt of the accused person(s) beyond reasonable doubt and if on a reasonable appreciation of evidence two views appears to be possible, then the view which is favourable to the accused person(s) should be adopted. However, the Court is to put itself on guard that benefit of each and every doubt could not be claimed by the accused person(s). It is only reasonable doubt, benefit of which could be extended to the accused of a crime.

16. Keeping in view the above propositions of law, in an appeal from acquittal, very strong and cogent reasons are required for interfering in the judgment of acquittal, and if, the findings of the trial court are based on the evidence available on record and there is nothing which may brand the appreciation of evidence done by the trial Court as perverse, the finding of acquittal should not be easily disturbed.

17. Keeping in view the inherent weaknesses appearing in the prosecution evidence, we are of the considered opinion that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or either illegal, illogical or improbable. Therefore, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.

Since application for grant of leave to appeal has been rejected, the appeal also does not survive. Consequently, the appeal is also dismissed.

(Mohd. Faiz Alam Khan, J.) (Devendra Kumar Upadhyaya, J.)

Order date :- 24.1.2020

Saif