Allahabad High Court
State Of U.P. vs Jitendra Kumar Yadav on 1 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1755
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 10 Case :- U/S 378 CR.P.C. No. - 168 of 2019 Applicant :- State Of U.P. Opposite Party :- Jitendra Kumar Yadav Counsel for Applicant :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
This application by the State of U.P. under Section 378 (3) of the Code of Criminal Procedure has been filed with the prayer to grant leave to appeal against the judgment and order dated 18.07.2019 rendered by the learned Additional Sessions Judge, FTC-Ist, in Sessions Trial No. 4/2007 which arose out of Case Crime No. 32/2006, under Sections 363, 366, 376 I.P.C., Police Station Ahirauli, District Ambedkar Nagar, whereby the respondent-accused-Jitendra Kumar Yadav has been acquitted of the charges under Sections 363, 366, 376 of the I.P.C.
In brief, the facts of the case are that the informant-Ram Tej Verma lodged an First Information Report on 01.05.2006 at Police Station Ahirauli, District Ambedkar Nagar with the assertion that his daughter (hereinafter referred to as the ''victim') was student of Class-11 in Jhinka Devi Balika Inter College, Fattepur, Belabagh, who at 06.30 a.m. on 21.04.2006 had gone to attend her school, however, she had not come back and accordingly the informant made all endeavours to trace her and further that his daughter had been enticed away by the accused-Jitendra Kumar Yadav son of Tribhuwan Yadav who is resident of his village. In the F.I.R., it was also stated that that Raja Ram Verma and Brij Lal Verma and others had seen the victim being taken away by the accused.
On the basis of said F.I.R., Case Crime No. 32 of 2006, under Sections 363, 366, 376, I.P.C., at Police Station Ahirauli, District Ambedkar Nagar was registered and after investigation a charge sheet was submitted against the accused-Jitendra Kumar Yadav, under Sections 363, 366, 376, I.P.C. The Chief Judicial Magistrate, Ambedkar Nagar took cognizance and summoned the accused. On appearance of the accused, the case was committed to the sessions court. Charges against the accused were framed under Sections 363, 366, 376, I.P.C. who pleaded not guilty to the charges and claimed trial. Accordingly, the trial commenced.
The prosecution in order to bring home the charges against the accused examined seven prosecution witnesses, namely, the informant-Ram Tej Verma (P.W.1), the victim (P.W.2), Brij Lal Verma (P.W.3), Raja Ram (P.W.4), Ramesh Chandra, Investigating Officer (P.W.5), Rama Devi Verma, Principal of the School (P.W.6) and Dinesh Kumar Bhaskar, Chief Pharmacist, District Women Hospital, Ayodhya (P.W.7). The prosecution also placed certain documentary evidences including statement of the victim recorded before the Magistrate under Section 164, Cr.P.C. and her medical report.
After closure of the evidence of the prosecution, the statement of the accused was recorded under Section 313, Cr.P.C. who denied the allegations and stated that he had falsely been implicated. However, no evidence by the defence was led.
Learned trial court considered the evidence available on record and finding material contradiction in the statement of the victim recorded before the court and the one recorded by her before the Magistrate under Section 164, Cr.P.C. and also finding various discrepancies in the statement of the other witnesses has given a finding that the prosecution has not been able to prove the charges against the accused beyond reasonable doubt and accordingly, acquitted the accused of the charges for which the accused was tried giving him benefit of doubt.
Seeking leave to appeal in this case, learned Additional Government Advocate has argued that the prosecutrix herself in her deposition before the court has completely supported the case of the prosecution, however, learned trial court by not finding her evidence credible has committed manifest error and thus, it is a case where leave to appeal should be granted.
It has further been argued by the learned counsel appearing for the State that reliance placed by the learned trial court on the statement of the prosecutrix under Section 164, Cr.P.C. in preference to her deposition made before the court is an approach adopted by the learned trial court which cannot be approved of.
We have considered the arguments made by learned Additional Government Advocate appearing for the State.
As observed above by Hon'ble Supreme Court in the case of State of Rajasthan Vs. Shera Ram alias Vishnu Dutta, reported in (2012) 1 Supreme Court Cases 602, though there is no substantial difference between an appeal against conviction and an appeal against acquittal, however, what is to be borne in mind while dealing with an appeal against acquittal is that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the lower court is a reasonable one and the conclusion reached by it is based on the material on record, the acquittal may not be interfered with. The Hon'ble Supreme Court goes on to further observe in the case of Shera Ram (supra) that though there is no absolute restriction to re-look the entire evidence on which the order of acquittal is based, however, it is only if the appellate court finds that the lower court's decision is based on an erroneous view and is against the settled principles of law that the order of acquittal should be set aside. Paragraphs 10 and 11 of the judgment in the case of Shera Ram (supra) are relevant which are extracted herein below :
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.
11. Also, this Court in Abdul Mannan case had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court's decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside".
Yet in another case of Shyam Babu Vs. State of U.P., reported in (2012) 8 Supreme Court Cases 651, Hon'ble Supreme Court has reiterated the principles on which the appellate court may interfere with the order of acquittal passed by the trial court. Hon'ble Supreme Court has stated in the said case of Shyam Babu (supra) that the appellate court while entertaining the appeal against the judgment of acquittal rendered by the trial court is though entitled to re-appreciate the evidence and come to an independent conclusion, however, such interference with the order of acquittal should not be made unless the decision of the trial court is found perverse or unreasonable resulting in miscarriage of justice. The said principle laid down by Hon'ble Supreme Court can be found in para-16 of the judgment in the case of Shyam Babu (supra), which is reproduced herein below:-
"16. It is true that it would not be possible for the appellate Court to interfere with the order of acquittal passed by the trial Court without rendering specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court while entertaining an appeal against the judgment of acquittal by the trial Court is entitled to re-appreciate the evidence and come to an independent conclusion. We are conscious of the fact that in doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. We also reiterate that if two views are possible on a set of evidence, then the appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal".
Keeping in view the aforesaid principles of law enunciated by the Hon'ble Supreme Court regarding scope and ambit of this Court in an appeal filed against the judgment of acquittal, we now proceed to examine whether the prayer made by the State in this case for grant of leave to appeal can be granted. Such grant of leave will be permissible only if the judgment of acquittal in this case is found suffering from any manifest legal infirmity or is found based on erroneous appreciation of evidence.
As observed above, the prosecution has examined seven prosecution witnesses. The statement of victim (P.W.2) is relevant to be discussed at this juncture. She before the court deposed that on 21.04.2006 at 06.30 a.m. she was going to attend her school, namely, Jhinka Devi Patel Balika Inter College, Fattepur, Belabagh, District Ambedkar Nagar. She further stated that when she reached Barwa Bazar, the accused forcibly got her seated on his motor-cycle and when the said attempt of accused was opposed, he threatened her that he will kill her if she resisted. She has further deposed that thereafter accused took her to Faizabad via Mahboobganj and parked his motor-cycle in the Agency and thereafter took her to Lucknow by Bolero(a motorized four wheeler). She further stated in her deposition before the court that the accused took her to railway station at Lucknow and thereafter he took her to Amratsar where he kept her in a rented room and committed rape on her without her consent and that the accused forcibly detained her at Amratsar for 5-6 months. In her deposition, she further stated that when the accused came to know that F.I.R has been lodged and attachment proceedings were also undertaken then the accused took her to Akbarpur at her aunt's house (Mausi). However, accused was apprehended by the police at Akbarpur Railway Station whereupon both of them were taken to Police Station where she had made her statement before the police. In her deposition, she further stated that she made the statement under Section 164, Cr.P.C. as well. However, when the statement recorded under Section 164, Cr.P.C. was read over to her she stated that she had not given any such statement. It is on record that the victim in her statement recorded under Section 164, Cr.P.C. had stated that she had relationship with the accused-Jitendra Kumar Yadav for the last 3-4 years and when her father settled her marriage elsewhere then she went away with the accused with a plan and accordingly on 21.04.2006 (the date of alleged occurrence), she went to Barwa Bazar from her residence where the accused was waiting for her and thereupon she with the accused went to Ayodhya via Mahboobganj and they got married in a temple at Ayodhya. In the said statement, she further deposed that after getting married they came to Faizabad and left the motor-cycle at the Agency for servicing and thereafter they went to Lucknow by Marshell (a motorized four wheeler) and took train at Lucknow railway station for Amratsar and on reaching Amratsar they started living together in a room where the accused worked as labourer and from there both of them left for Gurgaon where the accused did some computer related work.
In the said statement, the victim also stated that on coming to know about attachment proceedings both of them left for their residence and when they reached Akbarpur, both of them were apprehended. In her statement under Section 164, Cr.P.C. she also stated that the accused had not taken her away forcibly and that she had gone with him willingly and both of them had lived as husband and wife and that the accused did not commit any forcible act on her. She also stated that she is aged about 20 years, though her age was not recorded in the school correctly and in school her age recorded is less then her actual age. The victim also stated in her deposition under Section 164, Cr.P.C. (Exhibit Ka-2) that she was 20 years of age and that she had gone with the accused on her own willingness and on 21.04.20106 she solemnized marriage with the accused in Ayodhya and that she wanted to live with the accused.
However, when the victim was produced before the Court as witness, after 11 years from the date of occurrence, as P.W.2, she for the first time stated that on 21.04.2006 the accused had forcibly got her seated on his motor-cycle and took her to Amratsar where he kept her in a rented room and committed rape forcibly upon her and further that he kept her there for 5-6 months.
Learned trial court in the judgment of acquittal has thus found that there is substantial and material contradiction between the statement made by the victim under Section 164, Cr.P.C. and her statement recorded during trial before the court. Learned trial court has also observed that in case there is material contradiction between the statement recorded under Section 164,Cr.P.C. and the statement made before the court during trial and no sufficient believable explanation comes-forth from the victim for such material contradiction, the benefit should go to the accused. The learned trial court after noticing the statement made by the victim under Section 164, Cr.P.C. has stated that though in her examination-in-chief she stated that she did not give such a statement under Section 164, Cr.P.C. however, in her cross-examination she admitted that she had gone to get her statement recorded under Section 164, Cr.P.C. alone and that she had put her signatures on the said statement with her willingness. In her cross-examination the victim further stated that the statement recorded under Section 164, Cr.P.C. is the same which was stated by her on the asking of the Magistrate. She also stated that after reading the statement recorded under Section 164, Cr.P.C. she had put her signatures and when the victim was shown the statement made by her under Section 164, Cr.P.C. she stated that it is the same statement which she had got recorded before the Magistrate.
Based on the deposition made by the victim in her cross-examination, the learned trial court has recorded a categorical finding that no satisfactory explanation could be furnished by the victim for the material contradiction in her statement. Learned trial court has also recorded various other contradictions in the statement made by the victim and has concluded that she had made the statement after 11 years from the date of occurrence which is in complete, contrast and contradiction of the statement made by her under Section 164, Cr.P.C.
It is well settled by various decisions of this Court as also those of Hon'ble Supreme Court that the statement under Section 164, Cr.P.C. cannot be used as a substantive evidence, rather it can only be used to contradict and corroborate the statement of a witness given in the court. Regard in this respect can be had to a Division Bench Judgment of this court in the case of Ram Lakhan Sheo Charan and others Vs. State of U.P., reported in 1991 Cri.L.J. 2790, para 12 of which is quoted herein below:
"12. The trial was held when the new Code of Criminal Procedure had come into force. The wordings of S.164 in the new and old Code of Criminal Procedure with little changes are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 : (1942) 43 Cri LJ 277 a Division Bench of the Calcutta High Court had held that the statements Under Section 164 of the Code can be used only to corroborate or contradict the statements made Under Section 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 : (1946) 47 Cri LJ 344) the Privy Council had observed that the statement Under Section 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. Kind, AIR 1949 PC 257 : (1949) 50 Cri LJ 872) and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioner's court that statement Under Section 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642 : (1960 Cri LJ 1167). A division Bench of this Court had also observed that statements Under Section 164 of the Code cannot be used as a substantive evidence".
Similar view has been expressed yet in another Division Bench judgment in the case of Phool Chand and etc. Vs. State of U.P., reported in 2004 Cri.L.J. 1904.
Hon'ble Supreme Court in the case of Ram Kishan Singh Vs. Harmit Kaur and another, reported in (1972) 3 Supreme Court Cases 280 has held that a statement under Section 164 of the Code can be used to corroborate the statement of a witness and it can also be used to contradict a witness.
In Utpal Das and another Vs. State of West Bengal, reported in (2010) 6 Supreme Court Cases 493, the Hon'ble Supreme Court has again held that the statement recorded under Section 164, Cr.P.C. can never be used as substantive evidence of truth but it may be used for contradictions and corroboration of a witness. It has further been held that the statement made under Section 164, Cr.P.C. can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. Thus, the legal principle in respect of the provision of Section 164, Cr.P.C. which can be deduced is that the said statement can be used to impeach the credibility of the prosecution witness. The relevant observation made by Hon'ble Supreme Court in the case of Utpal Das (supra) is extracted herein below:
"16. Likewise, statement recorded under Section 164 Cr.P.C. can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement made under Section 164 Cr.P.C. can be used to cross examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness........"
Learned trial court has also taken into account the medical report (Exhibit Ka-11), according to which no external and internal injury on the body of the victim was found and has observed that though for arriving at the conclusion regarding rape, it is not necessary that the victim should suffer any injury on her body, however, this circumstance is to be looked into in the context of the facts and circumstances of a particular case.
Having examined the judgment passed by the trial court what we find is that learned trial court has considered the evidence on record thoroughly and has rightly given a finding that the victim in this case had attempted to make deliberate improvement on the material point. She has also not been able to give any explanation which can be said to be satisfactory on any count about material contradiction between her statement recorded during trial and the one made by her under Section 164, Cr.P.C. As a matter of fact, though in her examination-in-chief the victim has denied making the statement as recorded under Section 164, Cr.P.C., however, in her cross-examination she has admitted to have made the statement that she at the time of occurrence was 20 years of age and that she had gone with the accused on her own volition and further that on 21.04.20106 itself she got married with accused at Ayodhya and that she wanted to live with the accused. In view of the said admission of the victim in cross-examination in respect of her such statement made under Section 164, Cr.P.C. in our considered opinion, the learned trial court has rightly held that the evidence of the victim cannot be held to be reliable.
As per section 145 of the Evidence Act, a witness can be cross-examined as to the previous statements made by him in writing or reduced into writing and is relevant to the matter in question, without such writing being shown to him, or being proved. However, if a witness is to be contradicted by the writing, his attention must be drawn to those parts of the statement reduced in writing which are to be used for the purpose of contradicting him. Section 145 of the Evidence Act is reproduced herein under :
"145.Cross-examination as to previous statements in writing: A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him".
Object of section 145 of the Evidence Act is to give the witness a chance of explaining discrepancy or inconsistency. This provision will have application in a situation where the witness disowns having made any statement previously which is inconsistent with his present testimony in court. However, the statement would not be vitiated until while such witness is cross-examined, the procedure prescribed in Section 145 of the Evidence Act is followed, that is to say if the maker of the statement is sought to be contradicted, his attention should be drawn to his previous statement.
Hon'ble Supreme Court in the case of Rajendra Singh and others Vs. State of Bihar, reported in (2000) 4 Supreme Court Cases 298 has categorically held that if a witness during trial is intended to be contradicted by his previous statement made then his attention has to be drawn to those parts of the statement which are required to be used for the purpose of contradicting him, however, the provision contained in the second limb of Section 145 needs to be complied with, that is to say, the witness has to be confronted with his earlier statement made or reduced in writing.
In the instant case, the contradiction in the statement made by the victim before the court during trial vis-a-vis her statement made under Section 164, Cr.P.C. is visible. During cross-examination, she was confronted with the statement made by her under Section 164, Cr.P.C. as in fact her attention was drawn to the said statement which is clear from the following extract of the judgment rendered by the learned trial court :
"ijUrq ftjg esa ihfM+rk us ;g ekuk gSa fd eftLVªsV ds lkeus c;ku nsus og vdsyh x;h Fkh A c;ku ij mlus gLrk{kj i<+dj viuh ethZ ls cuk;k Fkk A eftLVªsV lkgc us tks iw¡Nk Fkk] mlus crk;k Fkk] ogh fy[kk x;k Fkk i<+dj mlus c;ku 164 na0iz0la0 ij gLrk{kj cuk;k Fkk A xokg us 164 na0iz0la0 ds c;ku dks i<+dj dgk fd ;gh c;ku mlus eftLVsªV dks fn;k Fkk A vr% ihfM+rk }kjk viuh eq[; ijh{kk esa ;g dgk x;k gSa fd tSlk c;ku 164 na0iz0la0 dk i+=koyh ij ekStwn gSa] oSlk c;ku mlus ugh fn;k vkSj ;g Hkh dgk gSa fd mldk c;ku tcjnLrh iqfyl okyksa o ftrsUnz ds ?kjokyksa us fnyk;k Fkk ijUrq ftjg esa ;g dgk gSa fd eftLVsªV us mlls tks Hkh iw¡Nk Fkk] mlus crk;k Fkk] ogha fy[kk x;k Fkk vkSj mlus i<+dj viuh ethZ ls gLrk{kj fd;k Fkk A ;g Hkh dgk gSa fd mlus tks cksyk Fkk] ogh fy[kk x;k Fkk A ,slh fLFkfr esa ihfM+rk }kjk lk{; esa ijLij fojks/kkHkk+"kh dFku fd;s tk jgsa gSa vkSj ihfM+rk }kjk vius /kkjk 164 na0iz0la0 ds c;ku o U;k;ky; ds le{k fn;s x;s c;ku esa vk;s ijLij fojks/kkHkk+"kh dFkuks ds laca/k esa dksbZ Hkh larks"ktud dkj.k ugh fn;k tk ldk gSa A"
The statement of the victim thus is not worth being given any credence.
Regarding age of the victim, the prosecution has relied upon a photocopy of the certificate depicting her age to be 25.07.1990 issued by the Education Board. To prove the said document Principal of the School, Ms. Rama Devi Verma (P.W.6) has been examined who in her cross-examination has stated that at the time of enrollment of the victim in the School, no certificate of date of birth was produced and that whatever date of birth of the student is revealed by their parents at the time of enrollment that is recorded. In this regard statement of father of the victim (P.W.1) may also be looked into who in his deposition before the trial court has stated that he cannot tell the date of birth of his children and that he had not gone with his daughter to School at the time of her enrollment. He has further stated that he cannot tell as to how his daughter was got enrolled in the School.
Based on the said statement of P.W.1, learned trial court has given a finding that this witness (P.W.1) does not know that exact date of birth of the victim. Learned trial court has also relied upon the statement of the Principal of the School who in her deposition before the trial court has stated that no certificate regarding date of birth of the victim is available in the School.
In view of these evidences, learned trial court has doubted the date of birth recorded in her certificate issued by the education board. Learned trial court has also referred to the medical report based on medication examination of the victim which has been issued by the Chief Medical Officer, according to which, the age of the victim was opined to be 19 years. Learned trial court has also referred to the statement of the victim recorded under Section 164, Cr.P.C. where she had stated that her age was 20 years. Thus, the case of the prosecution that the victim at the time of occurrence was not major, has been rejected by the learned trial court.
Reference at this juncture may be had to a judgment of Hon'ble Supreme Court rendered in the case of Vishnu @ Undrya Vs. State of Maharashtra, reported in (2006) 1 SCC 283. This case also related to the trial under Section 376/366 I.P.C. In the said case, according to the prosecution the prosecutrix was below 16 years of age at the time of commission of offence on the basis of certain documents, however, some doubt arose in respect of date of birth of the prosecutrix which according to one document was 29.11.1964 and according to other it was 29.06.1963. Thus, two documents contradicting each other in respect of date of birth of the prosecutrix in the said case created a doubt and circumstances of the said case became capable of two opinions, one in favour of accused and the other in favour of the prosecution.
In the said case of Vishnu (supra), the Hon'ble Supreme Court went on to observe that it is a common knowledge that very often parents furnish incorrect date of birth to the School authorities to make up the age in order to secure admission of their children and accordingly Hon'ble Supreme Court did not find any infirmity in the statement of the witness in the said case who stated that prosecutrix was born on 29.11.1964.
In any case, even if another view is possible, in absence of any compelling and substantial reason, the appellate court dealing with appeal against acquittal would not interfere with the acquittal unless the approach of the court below is found to be manifestly vitiated while it makes consideration of evidences.
In the light of the discussion made above, what we find is that in the instant case the view taken by the learned trial court for acquitting the accused was a possible and plausible view on the basis of analysis of evidence available on record and further, we do not find any perversity in the finding recorded by the learned trial court.
Accordingly, the application seeking leave to appeal in this case is hereby rejected.
The appeal is also, thus, dismissed.
Order Date :- 1.10.2019 Sanjay