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Vinod Kumar @ Pramod @ Raj Kumar vs State Of U.P. on 3 October, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved on 18.08.2018

Delivered on 03.10.2018

Court No. – 34

Case :- JAIL APPEAL No. – 309 of 2011

Appellant :- Vinod Kumar @ Pramod @ Raj Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail, Devendra Pratap Singh (Amicus Curiae)

Counsel for Respondent :- A. G. A.

Hon’ble Sudhir Agarwal,J.

Hon’ble Ravindra Nath Kakkar,J.

(Delivered by Hon’ble Ravindra Nath Kakkar,J.)

1. Heard Sri Devendra Pratap Singh, Amicus Curiae, learned counsel for the appellant and Sri Ratan Singh, learned A.G.A. for State of U.P.

2. The present appeal has been filed by accused Vinod Kumar alias Pramod alias Rajkumar against judgment and order dated 04.12.2010 passed by Sri Narendra Singh, Additional Sessions Judge, Fast Track Court No.5, Firozabad, in Sessions Trial No.468 of 2009 (State Vs. Vinod Kumar alias Pramod alias Rajkumar) arising out of Crime Case No.130 of 2009 whereby appellant was convicted for the offence under Sections 376, 363, 366, 506 IPC.

3. The appellant was directed to undergo Rigorous Imprisonment for life for the offence under Section 376 IPC and also a fine of Rs.10,000/-. In default of payment of fine, appellant was directed to undergo two years’ additional imprisonment. For the offence under Section 363 IPC, appellant was directed to undergo five years’ rigorous imprisonment and fine of Rs.5,000/-. In default of payment of fine, he was also directed to undergo one year’s additional imprisonment. For the offence under Section 366 IPC, appellant was sentenced ten years’ rigorous imprisonment and fine of Rs.7,000/-. In default of payment of fine, appellant was directed to undergo one year’s additional imprisonment. For the offence under Section 506 IPC, appellant was sentenced six months’ rigorous imprisonment. All the sentences were directed to run concurrently.

4. The prosecution story in nutshell emerging from the FIR is as follows :

5. The informant Munnalal lodged a written report at Police Station Tundla stating therein that on 10.06.2002, Neeraj, resident of his village, inducing informant’s minor daughter Ravina, took her into fields where he committed bura kaam (rape) on her. Informant had lodged a criminal case against Niraj, who was sent to jail and later on, his case was sent to Juvenile Court, Agra. Further it has been alleged that family members of Niraj and his relatives Hoshiyar Singh and Sahab Singh kept mounting pressure on Informant and in furtherance of the same conspiracy, a person riding a motorcycle came at 9:00 O’clock on 13.02.2009 accompanied with Hoshiyar Singh and Sahab Singh, residents of the same village as of the Informant. The person introduced himself as an advocate practicing at Agra. He stated that statement of Ravina, in the instant case, would be recorded at Agra. The person asked Informant to go with him. Relying on his words, the Informant, with his daughter, aged about 14 years, went to Agra on his motorcycle. The person required the Informant to bring photo-stat copies of some papers and obtained signature of the Informant thereon. He made the girl sit at the gate of Civil Court of Agra. The person asked the Informant to sit near the typist and stated that he would return after sometime. It is further alleged that after waiting for 20 minutes, Informant went to gate number 3, but his daughter Ravina was not there. The Informant inquired from persons present near the gate about her daughter whereupon they replied that motorcycle borne person having the girl seated had gone away. The Informant then made a search but he could not be able to find a clue. Later on, Informant received a threat call from mobile no.9639069815 asking to reach a compromise with Niraj in criminal case otherwise his daughter Ravina would be killed.

6. On the aforesaid information of Informant, Case Crime No.130 of 2009 was registered against unknown person for the offence under Sections 363, 366, 506 IPC. Investigation was started, site-map of occurrence spot was prepared and Km. Ravina was recovered. Her medical examination was conducted. The statement under Section 161 Cr.P.C. was got recorded and after completion of investigation, a charge-sheet against accused-appellant for the offence under Sections 363, 366, 376, 506 IPC was filed in the Court.

7. Vide order dated 18.08.2009 of learned Chief Judicial Magistrate, Firozabad, this case was committed to Sessions Court, which was transferred to Additional Sessions Judge, Fast Track Court No.5, Firozabad.

8. Learned Trial Court framed charges against accused-appellant under Sections 363, 366, 376, 506 IPC. Accused-appellant pleaded not guilty and claimed trial.

9. The prosecution, in support of the case, produced a total number of six witnesses namely PW-1 Munnalal, PW-2 prosecutrix Km.Ravina, PW-3 Sub-Inspector Satya Prakash, PW-4 Sub-Inspector Vijendra Sharma, Pw-5 Dr. Anshu Gupta and PW-6 Constable Rajvir Singh, out of which PW-1 Munna Lal is father of prosecutrix and Informant of the case; PW-2 Km. Ravina is victim of the case. In this way, evidence of PW-1 and PW-2 relates to facts of the case whereas PW-3 Satya Prakash and PW-4 Vijendra Sharma are Investigating Officers. PW-6 Constable Rajvir Singh registered first information report on the basis of written report of Informant Munnalal. In this way, evidence of PWs-3, 4 and 6 relate to police papers and of formal nature. Likewise, evidence of PW-5 Dr. Anshu Gupta relates to medical examination report.

10. After closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded. The accused-appellant claimed himself to be falsely implicated and stated that he was impotent. No defence evidence was adduced except medical report paper No.21-B, obtained from jail is on record.

11. The prosecution has brought necessary documents on record. They are, Exhibit Ka-1 (Tehrir – written complaint), Exhibit Ka-2 handing over memo of prosecutrix Km. Ravina, Exhibit Ka-3 statement of prosecutrix recorded under Section 164 Cr.P.C. before the Magistrate, Exhibit Ka-4 recovery memo, Exhibit Ka-5 site plan, Exhibit Ka-6 charge-sheet, Exhibit Ka-7 Medico-Legal Examination report, Exhibit Ka-8 Chik of first information report and Exhibit Ka-9 relevant copy of GD.

12. After giving an opportunity of hearing to both the parties, learned Trial Judge has convicted the accused-appellant Vinod Kumar alias Pramod alias Rajkumar under Section 376 IPC for life imprisonment and fine of Rs.10,000/- and in default of payment of fine, two years’ additional imprisonment. Further under Section 363 IPC for rigorous imprisonment of 5 years and fine of Rs.5,000/- and in default, one year’s additional imprisonment and further under Section 366 IPC for an imprisonment of 10 years and fine of Rs.7,000/- and in default of payment of fine one year’s additional imprisonment and under Section 506 IPC for six months’ rigorous imprisonment. Aggrieved thereagainst, this jail appeal has been preferred.

13. Vide order of this Court dated 09.01.2018, on the request of accused-appellant, Sri Devendra Pratap Singh, Advocate was appointed as Amicus Curiae to conduct the appeal on behalf of accused-appellant.

14. Learned Amicus Curiae has submitted that impugned judgment of conviction and order of sentence is against weight of evidence adduced by prosecution before Trial Court. The evidence of witnesses are contradictory to each other, the lodging of First Information Report and recovery of prosecutrix is under cloud of suspicion, impugned judgment of conviction is based on sole testimony of prosecutrix, which is full of contradictions. The entire prosecution story is false and concocted and not an iota of truth exists therein. Further contention is that there is delay in lodging the FIR, no plausible explanation is given by prosecution, medical evidence does not support prosecution version and lastly argued that accused-appellant deserves acquittal from charges levelled against him.

15. On the contrary, learned AGA supported the impugned judgment of conviction and order of sentence and contended that judgment of conviction is based on evidence tendered before Trial Court; well reasoned and discussed. It is further contended that accused was impersonating himself as an advocate by changing his name and address and impersonating as an advocate; he has deceived many persons and Police had caught many other minor girls with him before occurrence so he deserves no sympathy at all and appeal deserves to be dismissed.

16. Perusal of impugned judgment of conviction reveals that accused-appellant has been convicted on the basis of sole testimony of prosecutrix/victim PW-2 Ravina. Further, learned Trial Court, relied on medical report sent from jail, denying impotency of accused-appellant. Further learned Trial Court has found testimony of PW-1, father of victim/prosecutrix in support of evidence given by prosecutrix Ravina reliable and further finding of learned Trial Court is to the effect that PW-4 Vijendra Sharma, PW-6 Rajveer Sharma have supported the documents which have been prepared during investigation. Likewise, medical report has been proved by Dr.Anshu Gupta.

17. Before examining legality of impugned judgment of conviction, we would like to refer established legal proposition on the subject.

18. In State of Punjab Vs. Gurmeet Singh and others AIR 1996 SC 1393, Court held that in cases involving sexual harassment, molestation etc., Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions and insignificant discrepancies in the statement of prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Court may look for some assurance of her statement to satisfy judicial conscience.

19. In State of Himachal Pradesh Vs. Raghuvir Singh (1993) 2 SCC 622 Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecurtirx before recording an order of conviction. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspire confidence and there is absence of circumstances which militate against her veracity.

20. In Om Prakash Vs. State of U.P. AIR 2006 SC 2214, the issue before Court was whether accused could be convicted on the sole evidence of the victim even if medical evidence did not prove rape. Answering this issue, Court held that a rape accused could be convicted on the sole evidence of the victim, even if medical evidence did not prove rape. If for some reason Court finds it difficult to place implicit reliance on her sole testimony, it may look for evidence which may lend assurance to her testimony.

21. So far as legal proposition for appreciation of evidence is concerned, in State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, Court laid down certain guidelines in this regard which required to be followed by the Courts in such cases. Court observed as under:

“While appreciating evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.”

22. Further, we would like to refer to the quote of CJ Flecther Moulten, who once observed that- ‘proof’ does not mean rigid mathematics formula, that is impossible. However, proof must mean such evidence as would induce a reasonable mind to come to a definite conclusion.

23. On the anvil of touchstone of established proposition, as stated above, we find that in this case, incident is said to be of 13.02.2009 and written report was given to the police station on 09.3.2009 and FIR was lodged against unknown person stating therein that one Niraj, resident of his village, on 10.06.2002, induced the minor daughter Ravina of informant and forcibly committed rape on her. A criminal case was registered against Niraj, whose case was sent to Juvenile Court, Agra. Family members of Niraj and his relatives Hoshiyar Singh and Sahab Singh went to the Informant’s house and in the next morning, Informant and her daughter Ravina went to Civil Court on the pretext that statement of prosecutrix would be recorded in Juvenile Court. From there, accused-appellant took the victim on his motorcycle. Thereafter, Informant alongwith his relative went on search of her daughter.

24. Now, question arises before us is that in spite of knowledge of these facts, why Informant has lodged FIR at police station after a delay of about more than 25 days. This itself creates a suspicious circumstance in lodging the FIR.

25. A perusal of the record reveals that accused-appellant was arrested on 28.03.2009 and one kidnapped girl Km. Krishna was recovered from his custody, who was alleged to have been kidnapped on 05.03.2009 and accused-appellant was sent to jail in this connection. Record further reveals that victim of this case Km. Ravina was given into custody of her father Munnalal on 21.04.2009, who is victim of crime no.130 of 2009 under Section 363, 366, 506 IPC, Police Station Tundala, District Firozabad. It also transpires from record that medical examination of prosecutrix/victim Km. Ravina was conducted on 18.4.2009. Her statement under Section 164 Cr.P.C. was recorded before concerned Chief Judicial Magistrate on 22.4.2009 in which she has categorically stated that on 13.02.2009, appellant came to her house at about 8 P.M. and on the next morning, she and her father along with accused-appellant went to Agra on the pretext of taking her signature in the pending case. At Agra, some papers were prepared and accused-appellant offered tea to her father and after drinking tea, her father became serious. She has further stated that accused-appellant after taking her on his motorcycle, brought her into someone’s house showing her as his daughter and in the night, he forcibly raped her. She had further stated that on the next day, accused-appellant taking her to market, purchased acid bottle in order to kill her. But, wherefrom the accused-appellant purchased this acid bottle, she could not tell and thereafter accused-appellant took her to Aligarh Railway Station and told her to be seated otherwise she will be killed and went to ease himself and ran away from the spot. Thereafter, she met with one woman Ramwati, who took her to Dadri. She stayed in her house for eight days and thereafter Ramwati had sent her to Dhanaura, where she remained for one and half months. From Dadri, one person took her to the police station where she told her address to police authorities on which her father Munnalal, Tau Vidhya Ram reached to the police station and she was sent to her house.

26. Statement of prosecutrix recorded under Section 164 Cr.P.C. before concerned Chief Judicial Magistrate on 22.4.2009 does not correspond with the statement given by prosecutrix during trial. She was examined as PW-2 before Trial Court in which she has stated that accused-appellant took her on his motorcycle from Agra to Mathura. On the way, accused-appellant, several times, committed rape on her behind the bushes on the way from Agra to Mathura and thereafter accused-appellant took her to his relatives at Dadri where she again forcibly raped for 2-3 times in Dadri. Accused-appellant left her at Dadri. Thereafter she met with one person, who took her to police station and therefrom, information was given to her father. Custody was handed over by the police to her father who took her to his house from police station.

27. In this way, we find that there are material omissions, discrepancies and contradictions in the statement of prosecutrix which was recorded for first time under Section 164 Cr.P.C. and statement recorded during trial. In her first statement recorded under Section 164 Cr.P.C., she narrated the whole incident in which she stated that at Agra, accused-appellant offered tea to her father, who after drinking tea, became serious. This fact has neither been mentioned in the FIR nor in her statement recorded during trial. Further, during her statement recorded under Section 164 Cr.P.C., she stated that on 14th February, 2009 i.e. on the next day, accused-appellant took her to someone’s house introducing her to be his daughter, stayed for a night and committed rape on her. On the next morning, accused-appellant took her, and continued to roam for 3-4 days here and there, purchased acid bottle from market. Thereafter, he left her at Aligarh Railway Station and escaped from there, whereas, during trial, she has stated that from Agra, accused-appellant took her to Mathura and in the way, behind the bushes, on the highway, he committed rape on her several times. Thereafter, accused-appellant took her to Dadri. There too he committed rape on her 2-3 times and left her. From Dadri, she alongwith one person, went to police station. Story of rape at Dadri, staying at Dadri, rape with her on the way behind the bushes, staying for one and a half months at Dadri, these facts are not in consonance with statement given under Section 164 Cr.P.C. before the Magistrate and allegation made in the FIR. The statement of prosecutrix is full of contradictions with her own inter se statement recorded under Sections 161 and 164 Cr.P.C. and during trial. We, therefore, find material omission, exaggeration, discrepancies and infirmities in the statement of prosecutrix recorded under Sections 161 and 164 Cr.P.C. and during trial.

28. On the point of recovery, PW-1 Munnalal, during trial has stated before the Court that Police has recovered victim from Dadri and took her to Police Station. PW-1 has categorically stated in his examination-in-chief that one another girl Km. Krishna was recovered alongwith victim from Dadri. This witness has proved recovery memo, Exhibit Ka-2, but we find that recovery memo of kidnapped girl Km. Krishna does not have any mention of recovery of prosecutrix victim. It is pertinent to mention that Km. Krishna was recovered from custody of the accused on 28.03.2009 and after her recovery, accused appellant was sent to jail whereas victim of present case Km. Ravina was given into custody of her father on 21.04.2009. Recovery memo of Km. Ravina is not on record but it transpires from record that Km. Ravina was medically examined on 18.4.2009 and her statement under Section 164 Cr.P.C. was recorded before the Chief Judicial Magistrate on 22.4.2009. It goes to establish that at the time of recovery of present victim Km. Ravina, accused-appellant was in jail in some other case. The whole story of prosecution with regard to recovery of kidnapped victim Ravina from custody of accused-appellant is found to be doubtful.

29. It is relevant to mention here that PW-1, in his statement recorded before Trial Court, has stated that after return from Agra, he lodged a report at the police station on the same day and in the next paragraph he has stated that after returning back to his house, he lodged the FIR to the police station on third day, but, record shows that first information report was lodged against unknown person on 09.03.2009 whereas this incident is said to commence on 13.2.2009. Further, this witness during his examination before Trial Court has categorically stated that victim/ prosecutrix was recovered after two months of the incident, when the accused was already in jail in connection of another criminal case. This witness has further stated that his daughter was recovered from police station and not from any house. He further stated that on information being received from police station Dadri, he went to police station and found her daughter in police station Dadri.

30. It is pertinent to mention that from record it is established that medical examination of victim/prosecutrix was conducted on 18.04.2009 but neither recovery memo of the abductee was prepared nor produced before Trial Court.

31. We would like to observe following circumstances of the case, which makes whole prosecution story doubtful:

i. The prosecution version is that in order to mount pressure in the criminal case in previous incident, in which Niraj was accused, his relative Hoshiyar Singh and Sahab Singh wanted to get the case compromised. In spite of it, they are neither named in the FIR nor produced in evidence during the trial.

ii. Accused-appellant took Informant and victim/prosecutrix on his motorcycle and went to Agra. There accused-appellant offered tea to Informant. After drinking tea, he became serious but this fact has not been mentioned in the FIR.

iii. The victim was kidnapped on 13.2.2009 but the FIR has been lodged against unknown person on 09.03.2009 with a delay of 25 days but there is no plausible explanation for the delay in lodging the FIR.

iv. FIR itself is under cloud of suspicion as per statement given by PW-1 Informant during the trial.

v. The statement of prosecutrix recorded under Section 164 Cr.P.C. and given during examination before Trial Court is at variance on material points.

vi. The accused-appellant was arrested on 28.3.2009 alongwith one victim Km. Krishna whereafter he was sent to jail on that very day and after his arrest, victim of this case Km. Ravina was recovered. The recovery of kidnapped victim Ravina itself is not in consonance with prosecution story as she has stated that accused-appellant left her to Aligarh Railway Station and thereafter with assistance of one person, she was brought to police station Dadri but prosecution story is that accused-appellant took her to Dadri to his relative’s house where he stayed for one and a half months and thereafter with the assistance of one person, she was brought to police station from where father of the victim was informed and police has handed over custody of victim Ravina to her father. It goes to establish that on the day when victim/prosecutrix was recovered, the accused-appellant was in jail in connection with some other case, which makes recovery of victim from custody of accused/appellant improbable and doubtful.

32. We have already observed that there are discrepancies and infirmities in statement of the facts witnesses PW-1 father of the victim and PW-2 Prosecutrix/ victim with regard to lodging of FIR and recovery of kidnapped victim Ravina, which makes whole prosecution story under cloud of suspicion and complicity of accused-appellant in the crime under serious doubts.

33. In these facts and circumstances, relying on sole testimony of prosecutrix, we are of the view that impugned judgment of conviction and order of sentence, as per law laid down above, is found to be not sustainable in the eyes of law and liable to be set aside.

34. In the result, appeal is allowed. The impugned judgment and order dated 04.12.2010 passed by Additional Sessions Judge, Fast Track Court No.5, Firozabad, in Sessions Trial No.468 of 2009 (State Vs. Vinod Kumar alias Pramod alias Rajkumar) arising out of Crime Case No.130 of 2009 whereby appellant was convicted for the offence under Sections 376, 363, 366, 506 IPC, is hereby set aside. Accused-appellant is acquitted of the charges levelled against him under Sections 376, 363, 366, 506 IPC.

35. Accused is in jail. If he is not required in any other matter or in some other case, he be released forthwith.

36. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to forthwith furnish a personal bond of the sum of Rupees Fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, alongwith an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon’ble Supreme Court.

37. Copy of this order alongwith lower Court record be sent to Court concerned forthwith for compliance. Compliance report be also sent to this Court.

38. A copy of this order be also sent to accused-appellant through concerned Superintendent of Jail for his intimation.

39. Sri Devendra Pratap Singh, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel’s fee as Rs.10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Devendra Pratap Singh, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order Date :- 03.10.2018

KA

 

 

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