Allahabad High Court
Shiv Mohan Shilpkar vs State Of U.P. And Another on 8 August, 2024
Bench: Ashwani Kumar Mishra, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:129961-DB Court No. - 43 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 1251 of 2022 Appellant :- Shiv Mohan Shilpkar Respondent :- State of U.P. and Another Counsel for Appellant :- Daya Shankar Counsel for Respondent :- G.A.,Jyoti Bhushan With Case :- GOVERNMENT APPEAL DEFECTIVE No. - 60 of 2022 Appellant :- State of U.P. Respondent :- Praveen Kumar Yadav S/O Durgvijay Yadav Counsel for Appellant :- Shiv Kumar Pal Counsel for Respondent :- Jyoti Bhushan Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Dr. Gautam Chowdhary,J.
1. Heard Sri Daya Shankar, learned counsel for the appellant-informant, Sri Jyoti Bhushan, learned counsel for the accused appellant and learned AGA for the State.
2. Delay in filing the government appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned. Application for condonation of delay stands allowed.
3. These appeals are by the informant as well as the State challenging the judgment of acquittal dated 26.5.2022, passed by the court below in Special Sessions Trial No.23 of 2014 (State Vs. Praveen Kumar Yadav), arising out of Case Crime No.07 of 2014, under Sections 376, 511 IPC and Section 3/4 POCSO Act, Police Station Jahanaganj, District Azamgarh.
4. The informant in the present case has made a written report stating that he is a resident of Village Sukhpur Police Station Jiyanpur, District Azamgarh. He had returned on 20.1.2014 from his in-laws place at Jahanaganj in the evening. At about 9.00 PM when the victim (informant's daughter) aged six years had gone to offer tea to the driver, the driver attempted rape on her. The daughter informed this fact to her mother. With these allegations the FIR came to be registered as Case Crime No.07 of 2014 under Section 376, 511 IPC. The statement of the victim was recorded on 31.1.2014 in which she has claimed that her father asked her to give tea to the driver. When the victim offered tea the accused asked her to kiss her and when she refused the accused started beating her. On her screaming victim's father came and rescued her. The victim has been medically examined in which no external or internal injuries have been found on the victim. It has also come in the pathological report that no spermatozoa is seen in the vaginal slides. The hymen of the victim was also found intact. The age of the victim has been found to be seven years. It is thereafter that the charge-sheet was submitted in the matter and ultimately trial commenced when the accused denied the charges framed against him by the Court.
5. The informant has appeared as PW-1 and has supported the prosecution case. He has alleged that the accused was his driver for the last about one year. He has denied the suggestion that there was a dispute between him and the driver on account of non-payment of his salary. He has admitted that knowledge of this incident was received by him from is wife.
6. The victim has been produced as PW-2. She has although alleged that after she refused to accept the request of the accused to kiss her the accused gagged her mouth and thereafter started 'intercourse'. The victim moreover stated that she does not understand meaning of word 'intercourse'. She further stated that she said before the Court what was told to her by her father.
7. PW-3 and PW-4 are formal police witnesses and not much turn on their testimony.
8. PW-5 is Dr. Madhu Yadav, who had examined the victim. She has proved the medical report in which no spermatozoa was found on the vaginal smear of the victim and victim's hymen was found fully intact. The doctor has opined that there was no signs of rape on the victim. No external or internal injuries are found on the victim.
9. The material produced in evidence, by the prosecution, were confronted to the accused, who stated that he has been falsely implicated.
10. Trial court on the basis of aforesaid evidence has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt.
11. Challenging the judgement of acquittal, learned counsel for the informant as well as learned AGA submits that as the victim is aged six years some inconsistencies in her version ought to be ignored. It is also argued that minor contradictions in the testimony of witnesses are liable to be ignored, particulary when victim is a six year old girl. Learned counsel for the informant further argues that the judgment of acquittal, in such circumstances, ought not to be sustained.
12. Learned counsel appearing for the accused appellant, however, submits that the evidence has been appropriately evaluated by the Court of Sessions and it has rightly come to the conclusion that prosecution has failed to establish its case beyond reasonable doubt. He further argues that just because the victim is a minor it would not mean that accused has to be convicted even if there is no convincing evidence to implicate him.
13. We have heard learned counsel for the parties and have perused the materials on record including the trial court record and the judgment of acquittal.
14. Facts relating to the present case has already been noticed above and need not be repeated.
15. First and foremost it is to be noticed that the victim in her statement under Section 164 Cr.P.C. has stated that she had gone to deliver tea to the accused on the instructions of her father. It is also the version of the victim that the accused asked her to kiss her and when she refused the accused started assaulting him. The victim has also stated that when she screamed her father came and rescued. This part of the testimony of the victim nowhere alleges that any attempt was made to rape her. Moreover we have examined the testimony of the victim and do not find it convincing and reliable as it is the admitted case of the prosecution that the father of the victim was not present when the incident occurred. Once that be so, it is difficult to conceive as to how the father could have come to the victim's rescue on hearing her scream. The father in his statement has categorically admitted that he was not even present and it was only when he received information from his wife that he arrived at the place of occurrence. The other contradictions which have been noticed by the Court of Sessions for acquitting the accused is the fact that there is a material improvement in the version of the victim at the stage of trial viz-a-viz her previous statement under Section 164 Cr.P.C. In the statement of the victim made before the Court the victim alleges that she was raped, while in her statement before the Magistrate no such claim was made. The victim has though alleged that accused committed intercourse with her but has admitted that she does not know what is meant by intercourse. The victim has also categorically stated that her statement is based on the instructions of her father. The version of the victim regarding committing of rape upon her is thus a clear improvement from what was stated by her in her statement under Section 164 Cr.P.C. The medical evidence otherwise shows no external or internal injuries on the victim and the hymen of the victim was found intact.
16. In the facts of the case, we are of the opinion that the specific case of the eye-witnesses is completely belied by the medical evidence on record. In our opinion, the material contradiction in the medical evidence viz-a-viz the eye-witness account clearly creates a doubt on the prosecution case.
17. Hon'ble Supreme Court has dealt with a similar issue in Viram @ Virma Vs. The State of Madhya Pradesh, reported in (2022) 1 SCC 341, wherein in Para 13, the Court has observed as under:-
"13. The oral evidence discloses that there was an indiscriminate attack by the accused on the deceased and the other injured eye-witnesses. As found by the Courts below, there is a contradiction between the oral testimony of the witnesses and the medical evidence. In Amar Singh v. State of Punjab (supra), this Court examined the point relating to inconsistencies between the oral evidence and the medical opinion. The medical report submitted therein established that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by a witness. Therefore, the evidence of the witness was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case."
18. We have already observed that the ocular version of the incident is irreconcilable with the medical evidence on record and the inconsistency remains unexplained by the prosecution. Once that be so, it cannot be said that prosecution has succeeded in proving its case beyond reasonable doubt. Consequently, the applicant is entitled to get the benefit of doubt.
19. The trial court having noticed the aforesaid contradictions has found the prosecution case not be credible or reliable and, consequently, the accused has been acquitted of the charges levelled against him.
20. Though learned counsels submits that the evidence has not been examined in correct perspective but we fail to find any substance in such argument. The evidence clearly shows that neither the victim is credible nor is reliable nor the medical evidence on record supports her allegation.
21. The major contradictions in the version of the victim viz-a-viz her father as well as material improvements in her version from what was stated earlier under Section 164 Cr.P.C. also remains unexplained. We are, therefore, in agreement with the view taken by the Court of Sessions that the prosecution has failed to establish its case beyond reasonable doubt. Once that be so we find that there is no occasion for this Court to interfere with the judgment of acquittal passed by the court below.
22. The view taken by the court below is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances we find that neither any triable issue is raised before us in these appeals nor any perversity is shown, which may persuade this Court to interfere in these appeals.
23. The appeals lack merits and are, consequently, dismissed.
Order Date :- 8.8.2024 RA (Dr. Gautam Chowdhary,J.)(Ashwani Kumar Mishra,J.)