Allahabad High Court
Rinka Alias Jitendra vs State Of U.P. on 30 November, 2021
Bench: Kaushal Jayendra Thaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 50 Case :- CRIMINAL APPEAL No. - 3879 of 2015 Appellant :- Rinka Alias Jitendra Respondent :- State of U.P. Counsel for Appellant :- Sudhir Kr. Kulshreshtha,Noor Mohammad,Ronak Chaturvedi,Santosh Tripathi,Umang Srivastava,Zia Naz Zaidi Counsel for Respondent :- Govt.Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the appellant and G.A. for the respondent.
2. The instant Criminal Appeal has been preferred on behalf of the sole appellant-convict Rinka alias Jitendra against the judgment dated 14.07.2015 passed by the Sessions Court in Sessions Trial No. 471 of 2013 (State Vs. Rinka @ Jitendra) arising out of Case Crime No. 342 of 2012, under Sections 376, 511 read with 302 of Indian Penal Code (I.P.C.), P.S. Palimukimpur, District Aligarh whereby the learned trial court convicted him for the offence under Section 376/511 of Indian Penal Code and sentenced appellant to undergo with rigorous imprisonment of 5 years and a fine of Rs. 5000/- and also ordered to undergo imprisonment of two months in default of payment of fine and for the offence under Section 302 of Indian Penal Code the appellant further undergo for life imprisonment and fine of Rs. 20,000/- and in default of payment of fine six months imprisonment.
3. The brief facts as culled out from the paper-book and the record are that Yadram Sharma has given a written information at police station Palimukimpur for commission of offence under Section 376, 302 and 511 I.P.C on the facts that on 27.12.2012 his daughter (prosecutrix) was aged about 14 years the accused wanted to have illicit relation with her and when she refused, he threatened to kill her with a knife. This fact was conveyed by prosecutrix to her mother. On 27.12.2012 at about 4:30 p.m when the prosecutrix was on the way to attend the call of nature, accused Gopal who was declared juvenile later on and whose case is pending before the Juvenile Justice Board, Aligarh to the mustard field so as to support this Gaurav the present accused in the appeal also came behind him and when the girl started yelling persons who were near her came running. At that point of time the accused drew out his pistol and conveyed that if anybody came near he would shoot them, on this there was a commotion. At that point of time as per the F.I.R version the accused took out a knife and did away with the prosecutrix and they went away. The girl was declared dead. On the basis of the complaint the investigation was started and it converted into laying of charge-sheet against both the accused. Lala @ Gaurav being juvenile, his case was send to Juvenile Justice Board and the case of present accused was committed to the court of Sessions.
4. On this written information case crime no. 342 of 2012 was registered under Sections 376/511 read with 302 I.P.C against Rinka @ Jitendra with the Police Station Palimukimpur, District Aligarh.
5. The I.O. after concluding the investigation filed charge sheet against the accused Rinka @ Jitendra and the concerned court took cognizance of the same. The trial court framed charges against the accused Rinka @ Jitendra under sections 376/511 read with 302 I.P.C. and the charges were read over and explained to the accused which was denied by him and claimed for trial.
6. The prosecution so as to bring home the charges examined seven witnesses, who are as under:-
1Yadram Sharma P.W.1
2.
Nannu P.W.2
3. Dharmendra Singh P.W.3
4. Satyawati P.W. 4
5. Dr. Sayeed Mohammad P.W. 5
6. S.I/I.O Udal Singh P.W. 6
7. Dr. Anil Kumar Purwani P.W.7
7. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
1Written report Ex. Ka-1
2.
Panchayatnama Ex. Ka-2
3. Recovery memo of 'Lota' Ex. Ka-3
4. Recovery memo of blood stained & plain earth Ex. Ka-4
5. F.I.R Ex. Ka-5 6 Letter to the C.M.O Ex. Ka-7 7 Site plan Ex. Ka-8 8 Site plan with index Ex. Ka-9 9 Charge Sheet Mool Ex. Ka-10 10 P.M Report Ex. Ka-11
8. We have heard submissions made by the learned counsel for the appellant and also learned A.G.A. for the State, and perused the materials brought on record.
9. Shri Ajay Kumar Pathak, the learned counsel for the appellant has submitted written argument that the F.I.R was against two accused and it was Gaurav who has threatened the victim even before four days of the incident, there was no mention of the present appellant. It is submitted that the appellant had a country made pistol with him which was never used, how the persons saw him giving blow to the deceased is silent. It is submitted that the presence of the father is absolutely doubtful, the scarf was tied around the neck and there was bleeding of the victim which was never attributed to the accused. The site plan was prepared but neither pistol nor the knife was recovered. In postmortem report two injuries were found on the body namely injury no. 1 was a lacerated wound on the neck and injury no. 2 was abrasion on the face. The doctor who examined and conducted the postmortem opined that injuries were possible by a blunt object. The learned counsel further submits that entire evidence of all the seven people do not show that the accused was in any way attributed to have committed rape. It is submitted that leave apart of committing rape there was not a discussion even by the learned judge about how the accused can be said to have committed rape even there is no mention of attempt to commit rape. The oral testimony of P.W.-7 does not support prosecution story as far as it relates to commission of offence under Section 376 read with 511 read with 302 I.P.C. Grounds of the appeal is as follows:-
(i) There is no evidence against the appellant for using of country made pistol;
(ii) It is not believable that in presence of witnesses any person can kill the deceased and can cover the injury with dupatta;
(iii) The father of the deceased work at Delhi and Investigating Officer had also not shown his presence in the site plan and otherwise also P.W.-1 and P.W.-2 is 100 mtrs away from the place of incident;
(iv) Accused persons were not seen going towards the place of incident by the alleged witnesses but it is alleged that accused persons were seen while giving threat and running from the place of incident;
(v) There is no evidence of resistance or attempt of rape, in as much neither the clothes of the deceased was torn nor any injury was there on the whole body of the deceased;
(vi) None has corroborated the prosecution version other than P.W-1, father of the deceased and P.W.-2, cousin of the deceased;
(vii) Both the alleged eye witnesses could not even told the name of any single witness who have reached the place of incident and Investigating Officer also did not mention the place in the site plan from where P.W.-1 and P.W.-2 have seen the incident;
(viii) The doctor who conducted the postmortem specifically stated that injury was caused by a blunt object while the appellant was alleged to have been armed with country made pistol, there is huge conflict between oral and medical evidence;
(ix) The appellant cannot be attributed the role of killing the deceased as stated by P.W.-1 himself that when he reached near the spot he seen appellant Rinka @ Jitendra showing country made pistol to the witnesses. The co-accused had shown armed with knife;
(x) The manner in which injury was caused was not proved by P.W.-7- the doctor and as per suggestion and also P.W.-7, doctor has accepted that incident took place in the night;
(xi) The conviction of the appellant under Section 376,511 and 302 I.P.C is against the weight of evidence on record;
(xii) Even the court below did not look into the contradiction in the prosecution evidence which makes the prosecution story doubtfu;
(xiii) Nothing has been recovered from the possession of the appellant;
10. Learned counsel for the appellant in his written submission has submitted that there was no evidence against the appellant of having used a country made pistol. There is no evidence that an attempt of rape with the deceased was made by the accused. It is submitted that the story put forth by the prosecution that in presence of appellant and co-accused the minor was done to death and then the injury was covered by a dupatta and had submitted that the timing of the accident is not properly mentioned. The site plan also belies the theories put forth by the prosecution. It is submitted that P.W.-1 and P.W.-2 are interested witnesses and there is no corroboration by any independent witnesses. It is submitted that the appellant had no motive. It is further submitted that accused had been alleged to have had pistol and not knife even if presence is proved even then it cannot be said that the appellant had committed the murder of the victim. The manner of assault and entangling the neck with dupatta is also going to show that it was not the accused but either the juvenile accused or any other person who had committed this offence.
11. The learned counsel for the State has submitted that the decision of the learned Judge cannot be interfered with as the evidence against the accused has been discussed in such a way that there is no other view which can be taken just because there was no recovery from the accused, it cannot be said that he was not involved in the incident. It is further submitted that the judgment of the court below goes to show that the death occurred of the girl and the accused was found present. The eye witness P.W.-2 has testified to the said effect. The injuries are two in number and there is no question of the accused not being involved in the said crime his statement under Section 313 Cr.P.C is also silent. He has not examined any witness so as to testify that he was not present. It is submitted that learned lower court has rightly not believed the decision cited by the accused.
12. Having heard the learned advocates the recent decision of the Apex Court in "State of Gujrat Vs. Bhalchandra Laxmishankar Dave, 2021 (0) AIJEL-SC 66983 decided on 02.02.2021. Having heard learned counsel for the parties, three things emerge for our consideration, one the death occurred due to knife injury and not by injuries cause due to any gun fire. There is no recovery of pistol from the present accused. The site plan also does not inspire confidence that the accused was present at the spot where the crime was committed. The decision of the Allahabad High Court in Awadh Ram Vs. State of U.P, 2004 (48) ACC 365 will also come to the aid of the accused which has been misinterpreted by the learned Judge. Just because the F.I.R had named the accused it cannot mean that the site plan depicting the presence of the accused at a particular place is proved beyond reasonable doubt. There are several contradictions and these contradictions are not minor in nature. We have considered thread bear the facts. All interested witnesses have been examined by the prosecution. Not a single witness who can be said to be an independent witness has been examined. The finding of the learned Judge is not accepting the submission of the accused goes to through the perversity in the judgement. The F.I.R never stated that the accused had any altercation with the deceased girl, it was juvenile delinquent who had passed remarks.
13. We are convinced that this is a case where the accused should be granted what is known as benefit of doubt. One of the reasons been the manner in which the injuries was caused was not with the weapon which was alleged to be carried by the accused, the scribe also did not prove the time of the incident. The manner of assault is also not been proved against the accused.
14. In view of the facts and evidence on record, we are convinced that the accused has been wrongly convicted, hence, the judgment and order impugned is reversed and the accused is acquitted of charges levelled. The accused appellant Rinka alias Jitendra in case crime no. 342 of 2012 , if not wanted in any other case, be set free forthwith.
15. Appeal is allowed accordingly.
16. Record be sent to the trial court.
17. We are thankful to learned counsel for appellant and learned AGA for the State who has ably assisted the Court.
Order Date: 30.11.2021 PS