Allahabad High Court
Sattar Miyan vs State Of U.P. on 24 March, 2023
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved On: 30.01.2023 Delivered On: 24.03.2023 Court No. - 29 Case :- CRIMINAL APPEAL No. - 219 of 2000 Appellant :- Sattar Miyan Respondent :- State of U.P. Counsel for Appellant :- P.K.Punhani,Ram Saran Awasthi Counsel for Respondent :- Govt Advocate Hon'ble Mrs. Renu Agarwal,J
1. The present appeal is filed against the judgment and order dated 18.02.2000 passed by the Additional District Judge, Barabanki in Sessions Trial No. 162 of 1994 arising out of Crime No. 199 of 1993 under Sections 376, 506 IPC Police Station Kothi district Barabanki whereby the appellant has been convicted for the aforesaid offence and sentenced to undergo rigorous imprisonment for ten years.
2. In the guidelines of the Hon'ble Supreme Court the name of the victim is not disclosed. Her name is referred as letter ''X'.
3. Wrapping the facts in brief, the victim had gone for defecation on 25.07.1993 at about 7 a.m. The accused forcibly committed rape upon her. She narrated the incident at home. The complainant Mahaveer (Father of the victim) tried to lodge the FIR on the same day however when he was gong to lodge the FIR in the police station, co-accused Nanha met him on the way and threatened him to kill. In the meantime, the witnesses Ramdeen reached there and Nanha fled away. The complainant tried to lodged the FIR in the police station but the FIR could not be lodged. He moved an application to the Superintendent of Police in this regard on 27.08.1993 and the case was registered on the direction of Superintendent of Police, Barabanki. Investigation was conducted by Inspector Shyam Awadh Singh who sent the victim for medical examination. The victim was medically examined by Dr. Salma Khatoon. No external or internal injury was found on the body of the victim. No blood strain or spermatozoa was found. Hymen was found to be old torn and healed. Vaginal smear were sent for pathological test. The victim was sent for x-ray for determination of age. On the basis of x-ray report (Ex Ka10) and pathological report (Ex Ka-5) a supplementary medical report was prepared. According to the radiological report the victim was found to be 16 years old. No sign of rape was found on the basis of pathological report.
4. The investigating officer recorded the statement of witnesses, visited the spot, prepared site plan and after collecting evidences against the accused submitted charge sheet in the court of judicial Magistrate.
5. The case was committed to the court of sessions after compliance of Section 207 Cr.P.C. The sessions Court framed charges against accused appellant Sattar Miyan under Section 376 IPC and against Nanha Miyan under Section 506 IPC. The accused abjured from the charges and claimed to be tried.
6. The prosecution in order to prove its case has adduced the following witnesses:
(1) P.W.-1 Mahaveer complainant of the case. (2) P.W.-2 Victim (3) P.W.-3 Shanti Devi, Mother of the victim (4) P.W.-4 Ramdeen (5) P.W.-5 Amar Singh (6) P.W.-6 Dr. Salma Khatoon (7) P.W-7 3871 Constable Ramakant Singh (8)P.W-8 Investigating officer Shyam Awadh Singh (9) P.W.-9 Dr.P.C. Singh
7. After conclusion of evidence statements of accused were recorded under Section 313 Cr.P.C. In the aforesaid statements the accused denied prosecution version and stated on oath they are workers in Samajwadi party and due to political rivalry they are falsely implicated by the workers of Bharatiya Janta Party. The accused did not adduce any evidence in defence however opportunity was provided to them.
8. On the basis of oral, testimonial and documentary evidence produced before the court, learned trial court convicted the accused Sattar Miyan for the offence under Section 376 IPC and acquitted the co-accused Nanha Miyan for the offence under Section 506 IPC.
9. Aggrieved with the judgment and order passed by the trial court the present appeal has been filed.
10. Heard learned counsel for the appellant, Shri Hari Shankar Maurya, learned A.G.A for the State and perused the record.
11. Learned counsel for the appellant submitted that the FIR was lodged with undue delay which has not been explained by the prosecution. There are material contradiction between the prosecution version and the evidence on record. Therefore, the conviction of the appellant was unwarranted on the basis of evidence on record. It is also submitted that the prosecutorix was declared hostile by the prosecution. Learned trial court failed to appreciate the evidence of prosecutorix and the arguments raised in the trial.
12. Per contra learned A.G.A has argued that the judgment passed by the learned trial court is in consonance with the evidence adduced in the Court and the learned trial court has rightly convicted the accused Sattar Miyan under Section 376 IPC.
13. Before proceedings with the merits of the case, it would be appropriate to recapitulate the statements of witnesses in brief:
14. P.W.-1 stated on oath that his daughter, who was 12 years old at the time of incident went for defecation and was raped by accused Sattar on the north side of the village. Her cloths were blood stained. When he was going to the police station to lodge the FIR, Nanha, the brother of the present appellant, threatened to shoot him. In the meantime Ramdeen arrived at the spot and Nanha fled away. He narrated the whole incident to Ramdeen. He went to the police station but the police authorities, instead of lodging FIR, sent police team to arrest the accused but that police team returned without arresting the accused as they were not present in their home. After 15 days when the accused returned to their home he informed the police authorities about the presence of accused persons but the police authorities informed him that the inspector had gone for investigation of some dacoity case. Nankau uncle of the present appellant threatened him to do whatever he wants but there will be no action against them as he had deposited Rs.5000 in police station. The complainant then sent registered complaint to the Superintendent of Police, Barabanki but no report was lodged till he moved another application to the Superintendent of Police for lodging the FIR. P.W.-1 proved written report as Ex Ka-1.
15. P.W.-2 victim was declared hostile and ADGC cross examined her. During the course of cross examination she corroborated the prosecution version stating that Sattar forcibly committed rape on her. She handed over her blood stained Saree and Peticoat to the Investigating officer. However later on the victim stated that she did not hand over saree to the sub-inspector as she had washed it. P.W.-2 victim stated that when she raised alarm witnesses Ramdeen and Amar Singh rushed there and Sattar took to his heels. The victim disclosed her age as 16-17-18 at the time of incident.
16. P.W.-3 the mother of the victim corroborated the testimony of P.W.-1 and stated that her daughter told her that Sattar forcibly committed rape in the fields of Parasram. P.W.-3 told the incident to her husband who subsequently went to the police station to lodge FIR.
17. P.W.-4 Ramdeen did not corroborate the prosecution version and stated that he does not know of any incident of rape by accused with victim and he was declared hostile at the request of ADGC.
18. P.W.-5 Amar Singh also did not corroborate the prosecution version and was declared hostile at the request of ADGC.
19. P.W.-6 Dr. Salma Khatoon deposed that she examined the victim on 05.10.1993 at about 1 p.m. who was brought by Constable 87 Sona Singh and Constable Meena Devi. She did not find any internal or external injury on the body of the victim. No blood stain or discharge was found. No injury on private parts was found. Hymen was old torn and heeled and the victim was found about 16 years of age at the time of examination.
20. P.W.-7 Constabl 387 Rama Kant Singh who lodged the FIR in police station as Crime No. 199 of 1993 on the direction of Station Officer and chik report No. 112 dated 01.10.1993 at 23:40 pm the same was endorsed in G.D No. 38 at the same time.
21. P.W-8 Inspector Shyam Awadh Singh deposed that he recorded statement of complainant, mother of victim and the victim, witnesses Amar Singh and Ramdeen, visited the spot and prepared site plan (Ex Ka-8), prepared recovery memo of peticoat of victim and proved the recovery memo as Ex Ka-2 and proved the charge-sheet submitted against the accused as Ex-Ka-9.
22. It is also deposed by the Investigating Officer that Mahaveer, complainant of the case told him "Mai thane gya tha parantu mai report nahi likhana chahta tha. Mai chahta tha ki Sattar vagaira pr daat pade. Mahavir ne mujhse yah bataya tha ki ladki ki shadi abhi nahi hone ke karan use sirf datwana chahta tha. Kunki Sattar luk chup kar use boori nigahoon se dekha karta tha"
23. P.W.-9 Dr. P.C. Shukla Radiologist who conducted and prepared radiological report on the basis of x-ray plate and proved as Ex Ka10 and Plate as material Exhibit-1 and found that all the epiphyses were joint with their shaft, lower part of femur of right leg and upper ends of tibia and fibula were partly joined with their shaft.
24. According to the FIR the incident occurred on 25.07.1993 and FIR was lodged on 01.10.1993. Learned counsel for the appellant submitted that no plausible explanation is provided for lodging the FIR with the delay of almost 2 months. It is evident from the FIR itself that the father of the victim was going to the police Station Kothi for lodging the FIR but Nanha the brother of the accused appellant detained him on the way. Learned trial court acquitted the brother of the appellant under Section 506 IPC as the case was not proved against him. It transpires from the judgment passed by the learned trial court that there was sufficient explanation for the delay in lodging the FIR as complainant want to save her daughter from bad name in the society. Learned trial court observed in the inpunged judgment that if the incident was publicized, the marriage of the victim will be difficult and her future will be destroyed. Therefore, the complainant did not lodge the FIR within time however it is not the case of the prosecution. As per the statement of witness No. 1 he tried to approach the police station for lodging the FIR on the very same day, therefore, the conclusion of learned trial court that the FIR was lodged when the complainant was pressurized to do so by the villagers and kith and kin, is against the evidence on record. The conclusion is based on assumption and it is not the case of the prosecution that the complainant could not lodge the FIR due to social stigma and bad name to the family or the victim herself. According to the FIR the complainant reached the police station on the very same day and he narrated the incident to the police authorities and requested them to lodge the FIR however his efforts could not bear fruits and the FIR could not be lodged rather a police team came to the village in search of accused. The police team return without any action against the accused as they were not present in the house.
25. It is worth mentioning that P.W-8 deposed in court that complainant Mahaveer told him that "Mai thane gya tha parantu mai report nahi likhana chahta tha. Mai chahta tha ki Sattar vagaira pr daat pade. Mahavir ne mujhse yah bataya tha ki ladki ki shadi abhi nahi hone ke karan use sirf datwana chahta tha. Kunki Sattar luk chup kar use boori nigahoon se dekha karta tha" In these circumstances, it is very clear that the complainant was on the horns of a dilemma with regard to the lodging of the FIR. Therefore, he lodged the FIR more than after two months.
26. It is argued by learned counsel for the appellant that Ramdeen and Amar Singh are the witnesses of incident and it is stated that when the victim raised alarm, witnesses Ramdeen and Amar singh reached at the spot and the accused fled away. It is submitted by the learned counsel for the appellant that both the witnesses Ramdeen and Amar Singh turned hostile in the course of trial and did not support the prosecution version.
27. On the contrary, learned A.G.A submitted that Ramdeen was witness of fact that Nanha threatened to kill the complainant when he was going to lodge the FIR at the police station along with the victim.
28. After perusal of the statement of the victim, it transpires that she stated in her cross-examination that when she raised alarm, Ramdeen and Amar Singh arrived at the spot and the appellant Sattar fled, hence, the prosecution could not prove the fact that whether the witnesses Ramdeen and Amar Singh were the witnesses to the fact that when Sattar caught hold of the victim and she raised alarm, Ramdeen and Amar Singh arrived at the spot or witness Ramdeen was the witness of the fact that when complainant Mahaveer was going to lodge FIR in police station Nanha threatened him to kill in case he lodge FIR. If that we place reliance on the statement of victim that Ramdeen and Amar Singh were witnesses of fact of rape then the statement of both the witnesses became very important. Both the witnesses turned hostile in the court and denied of any knowledge of rape with the victim.
29. It is also submitted by learned counsel for the appellant that the accused appellant was not recognized by the victim at the time of incident. According to the evidence on record witness Amar Singh rescued the victim to her home after rape and the name of accused appellant could be ascertained by the father of the victim only from villagers. In this connection the statement of victim is relevant who stated, in her examination-in-chief that when she sat for defecation, accused Sattar came out of the bushes and caught hold of her and committed rape, therefore, the contention of the learned counsel for the appellant cannot be relied upon regarding identification of accused.
30. It is also submitted by learned counsel for the appellant that the victim was major at the time of incident and she was wrongly mentioned as 12 years in the FIR. On perusal of the medical report, it is evident that no date of birth or age is mentioned therein, however, the victim was found to be 16 years according to the radiological report which is proved by P.W.-6 Dr. Salma Khatoon. At the time of statement on oath, during trial, the victim disclosed her age as 21 years. The incident took place 5 years before her statement in Court. During cross-examination she stated at page-5 that she must be 17 to 18 years at the time of incident. There is no educational certificate regarding the age of the victim, therefore, the medical evidence has to be relied upon which is determine by P.W-6 as 16 years at the time of incident, therefore, it appears that the victim was minor at the time of incident.
31. It it to be gathered from the evidence that whether any incident of rape occurred on the fateful date.
32. It is stated by P.W.-1 that the peticoat of the victim was given to the investigating officer when he came in connection with investigation after 8 to 10 days of the incident. The P.W-1 did not hand over peticoat of the victim on the arrival of Investigating officer due to fear. P.W.-5 Amar Singh is the witness of recovery who denied the content of recovery memo and stated that the investigating officer did not obtain peticoat of victim in his presence. If it is assumed that the peticoat of victim was taken into custody and recovery memo was prepared thereafter and peticoat was sent for pathological test, even then no spermatozoa or blood stains were fount on it. No forensic science laboratory report is found on record during the trial. The trial court observed that if the forensic science laboratory report is not on record, that did not damage the case of prosecution as victim was habitual to sex, hence, there was no possibility of bleeding on her peticoat. The conclusion held by trial court is not plausible as the victim was 16 years old and unmarried. It is not the case of the prosecution that she was a girl of easy virtue. It is asserted by prosecution that blood stained peticoat was taken into custody by the Investigating officer and sent for forensic science laboratory, therefore, the above conclusion of the trial court is unwarranted. There is no proof of rape on the record.
33. P.W-6 Dr. Salma Khatoon proved Ex Ka-5 and deposed in court that there was no external or internal injury on the private parts of the victim. No sign of blood or discharge was found on her body. Vaginal smear were sent for pathological test. No living or dead spermatozoa was seen as per Ex Ka-4. Hence there is no proof of commission of crime under Section 376 IPC from the records.
34. Hon'ble Supreme Court in the case of Ganesan Vs. State (2020) 10 SCC 573 has held that there can be a conviction on the sole testimony of the victim/ prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished credible and her evidence is of sterling quality.
35. It is true that the accused can be convicted and punished on the sole testimony of victim if it inspires confidence to the level that she was subjected to rape by the accused but there is major contradiction in the statement of P.W-1 and P.W-2 the victim herself. The victim was initially declared hostile at the request of ADGC and later on in her cross examination she corroborated the prosecution version. When she was cross-examined by ADGC then in her cross examination she stated that on the arrival of Ramdeen and Amar Singh, the accused Sattar fled towards the south. Ramdeen and Amar Singh have been declared hostile. P.W-1 did not disclose the presence of witness Amar Singh and Ramdeen at the time of commission of crime and he disclosed that Ramdeen arrived when he was going to lodge the FIR. The case of the prosecution is not medically supported. Learned trial court convicted the appellant on the basis of assumption that the victim was habitual to sex and, therefore, the forensic science laboratory report is not important in the case, however, according to the prosecution case blood stained peticoat was sent for forensic science laboratory examination. It is also worthy to mention that age of the victim was found 16-17 years and the doctor opined that there may be difference of 2 to 3 years on both ways in the age of the victim and she may be more than 18 years at the time of incident. It is well established law that where two interpretation are possible the interpretation that is in favour of the accused shall be adopted Acchar Singh Vs. State of Himachal Pradesh reported at 2021 SCC Online HP 870. In these circumstances the prosecution failed to prove the case under Section 376 IPC against the appellant Sattar. The judgment of the learned trial court suffers from infirmity and is liable to be set aside.
36. In view of the aforesaid discussion, the appeal is allowed and the judgment of the trial court dated 18.02.2000 is hereby set aside.
37. The accused is acquitted from the charge under Section 376 IPC.
38. Having been acquitted by this Court in the above noted case the accused/ respondents shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.
39. Let a copy of this order along with lower court records be transmitted to the trial court concerned for necessary information and compliance.
(Renu Agarwal,J.) Order Date :- 24.03.2023 Nadeem