Allahabad High Court
Rajendra Prasad Singh vs State Of U.P. on 10 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2450
Bench: Ramesh Sinha, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on: 22.10.2020
Delivered on: 10.12.2020
Court No. - 1
Case :- CRIMINAL APPEAL No. - 3345 of 2003
Appellant :- Rajendra Prasad Singh
Respondent :- State of U.P.
Counsel for Appellant :- M.C. Chaturvedi,Bed Kant Mishra,Dwivedi S.C.,Sanjay Kumar
Counsel for Respondent :- Govt.
with
Case :- CRIMINAL APPEAL No. - 3371 of 2003
Appellant :- Sunil Kumar
Respondent :- State of U.P.
Counsel for Appellant :- S.R. Verma,Bed Kant Mishra,Ram Babu Tiwari
Counsel for Respondent :- Govt. Advocate
Hon'ble Ramesh Sinha,J.
Hon'ble Samit Gopal,J.
(As per Samit Gopal, J for the Bench)
1. The aforesaid criminal appeals are connected together and arise out of judgement and order dated 17.07.2003 passed by the Special Judge, SC / ST Act, Kanpur Dehat in Special Session Trial No. 28 of 2002 (State of U.P. Vs. Rajendra Prasad Pandey and Another) whereby the appellant Rajendra Prasad Pandey has been convicted and sentenced under Section 452 I.P.C. for one year Rigorous Imprisonment, under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for one year Rigorous Imprisonment and a fine of Rs. 1000/-, under Section 376 I.P.C. to life imprisonment, under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to life imprisonment and a fine of Rs. 1000/-, Section 323 read with Section 34 I.P.C. to six months Rigorous Imprisonment, under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to six months Rigorous Imprisonment and under Section 504 I.P.C. to six months Rigorous Imprisonment.
The accused / appellant Sunil Kumar Singh has been convicted and sentenced under Section 452 I.P.C. to one year Rigorous Imprisonment, under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for one year Rigorous Imprisonment and a fine of Rs. 1000/-, Section 376 read with Section 34 I.P.C. to life imprisonment, under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to life imprisonment and a fine of Rs. 1000/-, Section 323 read with Section 34 I.P.C. to six months Rigorous Imprisonment, under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to six months Rigorous Imprisonment and under Section 504 I.P.C. to six months Rigorous Imprisonment.
It has been ordered that in default of payment of fine both the accused-appellants shall undergo six months additional imprisonment. The trial court has ordered the sentences to run concurrently. The benefit of Section 428 Cr.P.C. has been ordered to be extended to the accused - appellants.
2. In view of the legislative mandate as contained in Section 228-A of the Indian Penal Code, 1860 and the observations made by the Hon'ble Supreme Court in various judgements the identity of the prosecutrix / victim is not being disclosed and she will be referred to as ''R' hereinafter.
3. The prosecution case as per the First Information Report lodged by ''R' / P.W.-1 is that on 31.10.2000 at about 2:00 A.M. she was present in her house wherein Inspector Rajendra Prasad Pandey and Constable Sunil reached her house and told her to open the door citing some reason of some accused on which she opened the door and then both the persons caught hold of her, took her towards the field wherein Inspector Pandey forcibly threw her on the ground and committed rape on her. It is further stated in the First Information Report that at that time one Aashiq Ali son of Khuda Baksh and Ibrar son of Tasveer Ali who are co-villagers came there to attend the call of nature and on seeing them the first informant started shouting on which the said two persons caught hold of Aashiq Ali and had mercilessly beaten him. On hearing the shouts and shrieks many persons of the village reached there and the Inspector was apprehended by them but Constable Sunil somehow managed to run away. She then states that her report be registered and appropriate action be taken.
4. The application for lodging of the First Information Report was given by ''R' to the police of which Shiv Narayan Singh is the scribe, the same is marked as Exb: Ka-1 to the records. On the basis of the said application a First Information Report was registered on 31.10.2000 at 11:40 AM at Police Station Bilhaur, District Kanpur Dehat as Case Crime No. 490 of 2000, under Sections 376, 323, 34 I.P.C. and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes Act against Sub-Inspector R.P. Pandey and Constable Sunil Kumar Singh. The said First Information Report is marked as Exb: Ka-7 to the records.
5. The prosecutrix / victim ''R' was medically examined on 31.10.2000 at about 09:00 PM by Dr. Manju Agarwal P.W.- 14 at Duffrin Hospital, Kanpur. The medical examination report is marked as Exb: Ka-2 to the records. The doctor conducting the medical examination found no mark of injury on the external body. Further no mark of injury was seen on the private part of body. The hymen was torn and an old tear was present. The vagina admitted two fingers easily. The victim was referred for X-Ray for the opinion about her age.
6. A supplementary report dated 04.11.2000 was prepared by Dr. Manju Agarwal which is marked as Exb: Ka-3 to the records. While, placing reliance on the X-Ray report and pathological report and the medical examination report the doctor opined that no definite opinion regarding rape can be given as she is used to intercourse. The age of the victim was opined to be above 25 years. The said report is marked as Exb: Ka-3 to the records.
7. The accused-appellant / Rajendra Prasad Pandey was also subjected to medical examination on 31.10.2000 at about 11:20 PM by Dr. R.S. Pratihar (P.W.- 15). The doctor conducting the medical examination has mentioned in the said report that no smell of alcohol is coming out from his breath. He is in full sense and not under intoxication. While, examining the private part of the accused the doctor did not find any injury or any semen on it. The opinion as arrived by him is that he is not under intoxication and is in full sense. Further there is no semen seen on the tip of his penis. The said medical examination report is marked as Exb: Ka-6 to the records.
8. Aashiq Ali (P.W.- 2) was examined on 31.10.2000 at about 12:15 PM by Dr. R.S. Pratihar (P.W.- 15). The doctor found the following injuries on his person:-
(1) Contused 4 cm x 1.2 cm on back side of left fore-arm 6 cm below the elbow. Red colour.
(2) Contusion Swelling 9 cm x 3.5 cm on antero lateral aspect of the left leg. 9 cm below the left knee, red colour.
(3) LW of size 3 cm x 2 cm x Muscle on back side of Rt. Leg 3 cm below the knee.
The injuries were opined to be simple in nature having a duration of about half day and caused by hard and blunt object. The said medical examination report is Exb: Ka-5 to the records.
9. Rakesh (P.W.-4) was medically examined on 31.10.2000 at 12:25 PM by Dr. R.S. Pratihar (P.W.- 15) and the doctor found the following injuries on his person:-
(1) Contusion 4 cm x 2 cm on Rt. Side head11.5 cm above the Rt. Ear. Red in colour.
(2) Abraded Contusion 2.5 cm x 1.5 cm on dorsal side of left hand-- just above the root of the left ring and little finger, reddish / blue colour.
C/o pain on both side of buttock C/o pain on Left side chest.
The injuries were opined to be simple in nature having a duration of about half day and caused by hard and blunt object / weapon. The said medical examination report is Exb: Ka-4 to the records.
10. Certain clothes being a sari, petticoat and an underwear were sent to the chemical analyst for analysis. A report dated 12.01.2001 was sent by the chemical analyst in which after analysis he found spermatozoa to be present on sari and underwear which were marked as item nos. 1 & 3 respectively and also human semen were found on the said items. On the item no. 2 being the petticoat no spermatozoa or semen was found. The said report is Exb: Ka-15 to the records.
11. The investigation concluded and a charge-sheet dated 17.01.2001 was submitted against Rajendra Prasad Pandey the appellant in Criminal Appeal No. 3345 of 2003, under Sections 376, 354, 452, 323, 504, 34 I.P.C. and Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and against Sunil Kumar Singh the accused in Criminal Appeal No. 3371 of 2003 under Sections 354, 323, 504, 452, 34 I.P.C. and 3(1)(x) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as an absconder. The same is Exb: Ka-14 to the records.
12. The trial court vide its order dated 15.03.2002 framed charges under Sections 452 I.P.C. read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 376 I.P.C. read with Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 323 / 34 I.P.C. read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 504 I.P.C. read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against accused Rajendra Prasad Pandey.
13. Against accused Sunil Kumar Singh, the trial court vide its order dated 15.03.2002 framed charges under Sections 452 I.P.C. read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, 376/34 I.P.C. read with Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 323/34 I.P.C. read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 504 I.P.C. read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
14. Both the accused persons pleaded not guilty and claimed to be tried. They have also led their defence by way of producing defence witnesses.
15. The prosecution in order to prove its case produced ''R' as P.W.-1 who is the prosecutrix / victim and the first informant also. Aashiq Ali (P.W.-2) is one of the injured persons and a co-villager, Rajesh Kumar (P.W.-3) is also a co- villager, Rakesh (P.W.-4) is the other injured person and a co-villager who runs a general merchant shop in the village, Sipahi Lal (P.W.-9) is a relative of the husband of the prosecutrix / victim being the elder brother of the brother-in-law of Nandram who is the husband of the prosecutrix / victim. Ibrar (P.W.-12) is the nephew of Aashiq Ali as the eye-witness of the incident. Amongst the formal witnesses Shiv Narain (P.W.-5) is the scribe of the First Information Report, Smt. Samina wife of Ibrar is the daughter-in-law of Aashiq Ali, Shri Krishna (P.W.-7) is the witness of the recovery of clothes of the accused and the victim, Dinesh Kumar (P.W.-8) is the witness like Shri Krishna (P.W.-7) as being the witness of the clothes of the accused and the victim, Dr. Ram Narain (P.W.-10) provided first aid and dressing to Aashiq Ali, Nandram (P.W.-11) is the husband of ''R', Praveen Kumar (P.W.-13) is a Constable in police who states to have got his ravangi recorded at the police station along with accused Sunil Kumar Singh for duty in village Dalelpur, Dr. Manju Agarwal (P.W.-14) conducted the medical examination of ''R', Dr. R.S. Pratihar (P.W.-15) conducted the medical examination of Aashiq Ali (P.W.-2) & Rakesh (P.W.-4) and Rajendra Prasad Pandey the accused, Dharmendra Kumar Mishra (P.W.-16) is the head Constable who transcribed the First Information Report, prepared its chik and states to have received an information on telephone through Village Pradhan that Sub-Inspector Rajendra Prasad Pandey has been apprehended by villagers, Smt. Kamleshwari Chand (P.W.-17) is the Circle Officer and is the second Investigating Officer who took up the investigation from 01.11.2000 from Sri B.N. Chaturvedi, Circle Officer, Bilhaur, concluded the investigation and submitted the charge-sheet, B.N. Chaturvedi, Circle Officer (P.W.-18) is the Investigating Officer who had the case in his hand up to 01.11.2000 and then the same was transferred to Smt. Kamleshwari Chand (P.W.-17) and lastly, Sukh Sagar Shukla, Sub-Inspector (P.W.-19) who received information about some dispute between Sub-Inspector Rajendra Prasad Pandey and Constable Sunil Kumar Singh with the villagers through the head Constable of Police Station- Bilhaur and also the fact that they have been apprehended by the villagers who then proceeded to the place of occurrence along with other police personnels.
16. In defence, accused / Rajendra Prasad Pandey produced two witnesses being Krishna Narain Bhatt the Station Officer, Police Station Bidhnu as D.W.-1 who has stated about some dispute between S.B. Pathak, S.P.R.A. with the accused-appellant / Rajendra Prasad Pandey and then Madan Prasad Sharma, Sub-Inspector Police Station Bidhnu (D.W.-2) who also states about some dispute between S.B. Pathak, S.P.R.A. and accused-appellant / Rajendra Prasad Pandey.
17. The trial court after considering the entire evidence on record came to the conclusion that there is sufficient evidence against accused-appellant / Rajendra Prasad Pandey for committing rape on ''R'. In so far as, the accused Sunil Kumar Singh is concerned the trial court came to a conclusion that although Sunil Kumar Singh did not commit rape on the prosecutrix but still under the amended Section 376(2)(g) I.P.C., he is guilty of gang rape and although he has not committed actual rape but still would be guilty of the same and further that ''R' is a downtrodden women belonging to the Scheduled Castes / Scheduled Tribes community, hence, provisions of Scheduled Castes and Scheduled Tribes Act would also be applicable and thus convicted the accused persons as stated above.
18. We have heard Sri Bed Kant Mishra, learned counsel for the appellants in both the appeals and Mrs. Archana Singh, learned A.G.A. for the State and perused the record. Since both the appeals arise out of a common judgement and order, the same are being decided by this judgement.
19. Learned counsel for the appellants made the following submissions:-
(i) The prosecutrix / victim is a major lady. She is a married women. There is no evidence whatsoever in the present matter to show that rape has been committed on her.
(ii) The medical evidence does not in any manner corroborate with the prosecution case. The doctor did not find any mark of injury either on the external body of the prosecutrix or on her internal part. She was opined to be used to sexual intercourse. The link which comes forward by way of medical evidence for corroborating an incident of rape is totally missing as the doctor in the supplementary medical examination report herself has opined that no definite opinion about rape can be given and she is used to intercourse.
(iii) All the prosecution witnesses being ''R' (P.W.-1), Aashiq Ali (P.W.-2), Rajesh Kumar (P.W.-3), Rakesh (P.W.-4), Shiv Narain (P.W.-5), Smt. Samina (P.W.-6), Shri Krishna (P.W.-7), Dinesh Kumar (P.W.-8), Sipahi Lal (P.W.-9), Dr. Ram Narain (P.W.-10), Nandram (P.W.-11) and Ibrar (P.W.-12) have not supported the prosecution case and have been declared hostile.
(iv) The report of the chemical examination cannot be given reliance upon as a fact of corroboration as the witnesses of the recovery of the said clothes being Shri Krishan (P.W.-7) and Dinesh Kumar (P.W.-8) have not supported the prosecution case and have been declared hostile and as such the said report is of no worth. Even if the same is considered to be of any worth, the same cannot be given credence as there is no evidence whatsoever to show that the stains present on the said clothes were due to the act of rape as committed by the accused-appellant and as such the same cannot in any manner be linked and associated with the present incident.
(v) The accused Rajendra Prasad Pandey has come forward with a specific defence of his superior police officer being annoyed with him due to which he has been falsely roped in for which two defence witnesses were produced by him which have wrongly been not disbelieved by the trial court.
20. On the other hand, the learned Additional Government Advocate for the State opposed the submissions of the learned counsel for the appellants on the ground that although the said 12 witnesses have been declared hostile but the manner in which they have been declared hostile shows that they were at some point of time won over and thus they changed their version before the trial court. The evidence of the prosecutrix / victim is sufficient enough to prove a case of rape. It is argued that the statement of ''R' was recorded under Section 164 Cr.P.C. wherein she very clearly states about the entire story as to how rape was committed on her. It is argued that the present occurrence occurred as stated by the prosecution at the date, time and place by the accused persons named therein. It is argued that since the accused persons are police personnels, they have won over the witnesses under threat and pressure. It is argued that the appeal lacks merit and is liable to be quashed.
21. ''R' (P.W.-1) is the prosecutrix / victim and the first informant of the present case. She in her exaimination-in-chief states that on 30/31.10.2000 the accused persons came to her house at about 2:00 A.M. At that time she, her five children, Guddi wife of her son and her nandoi / Sipahi Lal were present. Her husband Nandram had gone to village Biharipur. The accused persons came and from outside asked her to open the door as some persons of bad antecedents were living there and a raid is being conducted for arresting them. Sipahi Lal the nandoi of ''R' opened the door. Both the accused were in their uniforms. Both of them disclosed their name to her. She states that Inspector was not in a state of intoxication. She identifies the accused in the court as Rajendra Prasad Pandey and Sunil Kumar Singh Constable and states that both of them were in their uniform. She further states that both the accused persons then took Sipahi Lal her nandoi out of the house to a near by road crossing. She was not taken out of the house. She states that the accused persons did not take her out of the house towards the field. She further states that neither the said persons assault her on her body nor they committed rape on her. She further states that she was then waiting for her nandoi to return wherein 2-3 unknown persons wearing kurta-pyjama came and took her towards the field and all the said 03 persons committed rape on her against her wish. She raised shouts on which Aashiq Ali reached there. It was night. No other person came. Aashiq Ali was not assaulted by the said persons. While, running he fell down and received injuries. She states that Sipahi Lal was not beaten by the accused persons present in court before her. She states that the accused persons were not apprehended by the villagers. She went to the police station along with Shiv Narain. The Inspector of police present at Police Station Bilhaur had got her thumb impression affixed on plain paper and had told her that she may go back and her report will be registered. She states to have not dictated any First Information Report to Shiv Narain. She further states that police Inspector present there had himself got her medically examined and her X-Ray examination was also got conducted. She states that the Inspector had taken her petticoat and had taken the sari of her daughter-in-law which was called from the house. She states that no clothes of the accused were taken before her. Bundle of clothes present before the trial court were opened from which the sari and the petticoat were identified by ''R' as that of her but she states that she does not know about the underwear. The said witness was then declared hostile at the request of the A.D.G.C. and was allowed cross-examination. In the cross-examination ''R' admits her thumb impression on the written report. She denies the fact that the accused persons took her from the house and committed rape on her. She further denies the fact that Aashiq Ali received injury during the course of saving her from the accused persons on which he was beaten by them. Even the fact of beating Sipahi Lal and Rakesh is being denied by her. She denies the fact that the accused-appellant Rajendra Prasad Pandey was apprehended at the place of occurrence. She denies the fact of getting a report prepared at the village from Shiv Narain and then affixing her thumb impression. To her statement recorded under Section 161 Cr.P.C. twice, she denies and states that she never gave any such statement. While, being countered to her statement recorded under Section 164 Cr.P.C. she states that the police Inspector had threatened her that if she does not give the statement as stated by him then she would be implicated in a case of charas. She states that she did not make any complaint to any police official about the fact that she was threatened to give the name of the present accused persons in the matter. To a suggestion that she has sided with the accused persons who have threatened her and as such she is giving such statement, she denies. She further denies the fact that the underwear of accused Rajendra Prasad Pandey was taken into custody in her presence. The trial court drawing her attention to the statement recorded under Section 164 Cr.P.C. clarified to which she has stated that when her statement was being recorded Inspector Sukh Sagar Shukla was not standing inside the court but was standing outside and even no police personnel was standing inside the court then further in the cross-examination she states that her elder son is aged about 22-23 years, she was married around 25 years back and there is no other person by the same name as that of her and her husband in the village.
22. Aashiq Ali (P.W.-2) states that on the day and time of the incident or at any time or date the accused persons did not commit rape on ''R' and did not assault her. He further states that even the said persons did not assault him. He was declared hostile and was permitted cross-examination by the A.D.G.C. In his cross-examination he denies giving any statement under Section 161 Cr.P.C. to the Investigating Officer. To a suggestion that he under pressure of the accused who are police personnels and under threat is giving the said statement and not stating the truth, he denies. He further denies the fact that under threat he and ''R' had given affidavit in the court. He specifically denies that the accused persons assaulted him as a result of which he received injuries. To the fact that villagers had apprehended the accused he states that he does not know about it.
23. Rajesh Kumar (P.W.-3) is a businessman, he states that on 30.10.2000 the accused persons at about 9:00 PM came to his shop along with Constable Praveen. He states that they did not instruct him to call anyone. He further states that Dipu son of Ram Asrey Katiyar was not called by them through him. He states that Sipahi Lal the relative of ''R' was present with them. ''R' was not with them. He further states that neither Aashiq Ali was apprehended by the accused persons nor he was beaten before him. He even states that Aashiq Ali did not get medical aid in front of him. He further states that it is incorrect that ''R' was with the accused persons and they were assaulting her and had committed rape on her. He states that the accused persons stayed throughout the night at his shop. He further states that Sipahi Lal the relative of ''R' was there for some time and then he went back. This witness has also been declared hostile and was permitted cross-examination by A.D.G.C. To his statement recorded under Section 161 Cr.P.C., he denies the same to have been given to anyone. He further denies the fact that ''R' was with the accused persons and they were committing immoral acts on her. He further denies that Aashiq Ali was also present there, was beaten and was then provided first aid. Lastly, to a suggestion that the accused are police personnels and as such under threat and pressure he is giving a false testimony, he denies.
24. Rakesh (P.W.-4) is also a businessman and a general merchant and is also an injured. He states that on 30/31.10.2000 at about 2:00 PM Inspector Rajendra Prasad Pandey and Constable Sunil Kumar Singh came to his house and Sunil Kumar Singh asked for a packet of spices on which he while going down the ladder he slipped and received injuries. He states that it is incorrect that the accused persons had assaulted him. He states that the police personnels and persons of the village took him to the doctor but he was unconscious. He states to have re-gained consciousness at his house after returning from the hospital. He was informed by the villagers that they and the police took him. He states that he does not know that Inspector Rajendra Prasad Pandey had committed rape on ''R' who is the wife of Nandram and further states that even he has not heard of any such incident. He was then declared hostile and the A.D.G.C. was permitted cross-examination. The witness then denies his giving statement under Section 161 Cr.P.C. and further states that he did not give any such statement that on the night of the present incident Inspector Rajendra Prasad Pandey and Constable Sunil Kumar Singh had assaulted him as a result of which he received injuries. He states that he has not heard on any such fact that Inspector Rajendra Prasad Pandey had committed rape on ''R' wife of Nandram and senior police officials had come there and further denies that he, ''R', Aashiq Ali and Inspector Pandey were taken to the police station and then were sent to the hospital for medical examination. On a suggestion that since the accused are police personnels he is giving a false testimony under their threat and pressure, he denies the same.
25. Shiv Narain (P.W.-5) is the scribe of the application given for lodging of the First Information Report. He in his examination-in-chief identifies his handwriting and signature on the application. He states that the Station House Officer, Sukh Sagar Shukla dictated him the same which he transcribed. He states that no thumb impression of ''R' was affixed in front of him. He identifies his handwriting and signature and the said document is marked as Exb: Ka-1 to the records. He was also declared hostile and the A.D.G.C. was permitted cross-examination. He denies the fact that ''R' had dictated the First Information Report and after reading it to her, her thumb impression was got affixed. He denies that the statement which he has given in court in the examination-in-chief that the application was dictated to him by Sukh Sagar Shukla, Station House Officer is because of threat and pressure of accused persons. He denies his giving any statement under Section 161 Cr.P.C. to anyone. He further states that he did not make any complaint to any police official or court regarding the fact that the said application was not dictated by ''R' but was dictated by Sukh Sagar Shukla, Station House Officer.
26. Smt. Samina (P.W.-6) states that Aashiq Ali is her father-in-law. She states that her father-in-law was not assaulted by police on 31.10.2000. She states that on 02.11.2000 she had not given any statement to police. She was declared hostile and the A.D.G.C. was permitted cross-examination. To her statement recorded under Section 161 Cr.P.C., she states that she did not give any such statement that the police personnels regarding assault in the night on her father-in-law and Chhotey Lal had managed first aid. She states that she does not know the accused persons from before. To a suggestion that the accused persons are police personnels and she is giving the said statement under threat and pressure, she denies the same.
27. Shri Krishna (P.W.-7) has been produced as a witness of the recovery of clothes of the accused, Rajendra Prasad Pandey and ''R'. In his examination-in-chief he denies the fact that any recovery of any underwear of Rajendra Prasad Pandey and sari and petticoat of ''R' were effected before him and Dinesh Kumar. He states that they were made to sign on plain papers and even ''R' did not sign before them. He states that nothing was written on those papers. He identifies his signatures on two papers and states again that when he had signed them then there was nothing written on them. He was declared hostile and the A.D.G.C. was permitted cross-examination. He states that he knows Inspector Rajendra Prasad Pandey who was posted at the Police Station- Bilhaur. He denies the fact that clothes of ''R' and the accused were recovered before him. He further states that it is incorrect to state that the recovery memo was drawn, read out to them and then they were made to sign on it. On his statement recorded under Section 161 Cr.P.C., he states that he has not given any such statement to anyone and he has not given any such statement that police Constable Dharmendra Mishra had taken the clothes of the accused and ''R' in possession. To a suggestion that he is giving the statement under threat and pressure of police Inspector, he denies the same.
28. Dinesh Kumar (P.W.-8) is also said to be a witness of the recovery of the clothes of ''R' and the accused. As like Shri Krishna (P.W.-7) he has also been declared hostile and has stated the same as has been stated by Shri Krishna (P.W.-7) and as such the same is not being repeated being identical.
29. Sipahi Lal (P.W.-9) is a relative of ''R'. The relationship of Sipahi Lal has been disclosed by him and he states to be the elder brother of Chedi Lal who is the brother-in-law of Nandram the husband of ''R' and as such in short he is the elder brother of the brother-in-law of the husband of ''R'. He has been addressed by ''R' a her nandoi. In his examination-in-chief he states that on 30/31.10.2000 he was in the house of Nandram in the night. In the house on that day ''R' and her daughter-in-law were present. Nandram was not in the house and his son Ram Gopal had gone to village Biharipur for processing of paddy. He states that he, ''R', her two children, his daughter had gone to the parental house of ''R'. He further states that in the night at about 1-1:30 PM two police personnels came who were not known to him since before and they said to open the door disclosing their identity and stating that persons of bad antecedents are living there. He states that it was dark and as such he was unable to identify as to who was a Constable and who was an Inspector. He was then taken for some distance up to a godown nearby which is of fertilizers and there is a crusher nearby. He states that ''R' was not taken to accompany them. He was then in between questioned by them and was then let off. He was even given one or two slaps by them. He states that Aashiq Ali was beaten by the police personnels before him and they had got him provided first aid. He further states that no Inspector or Constable committed any immoral act with ''R'. He further states that even ''R' did not inform him of the police either molesting her or committing any illegal act on her. He further states that he did not inform Nandram of any such incident of rape and molestation being committed on his wife by Inspector and Constable. He was declared hostile and permitted cross-examination by the A.D.G.C. To his statement recorded under section 161 Cr.P.C., he states that he had not given any such statement to police. On seeing the accused persons present in the court, he states that he cannot tell as to they were the two persons present at that night or not. On a suggestion to him that the accused are police Inspector and Constable and under threat and pressure he is giving such statement, he denies to the same.
30. Dr. Ram Narain (P.W.-10) is said to be the doctor who had provided first aid and dressing to Aashiq Ali. In the examination-in-chief he states that on 30/31.10.2000 at about 12:00 PM he had done dressing and provided first aid to Aashiq Ali for the injuries received by him. He states that he was not brought by the accused persons present in the court. He states that Aashiq Ali had come all alone. He further states that Aashiq Ali had informed him that he had a boil which had burst. He further states that ''R' was not accompanying Aashiq Ali. He states that blood was oozing out of the boil present on the body of Aashiq Ali. He further states that Aashiq Ali did not give him money at that time but stated that he will give it in the morning. He denies the fact that Aashiq Ali was brought to him by Inspector Rajendra Pradad Pandey and Constable Sunil Kumar. He was declared hostile and the A.D.G.C. was permitted cross-examination. He was read over his statement recorded under Section 161 Cr.P.C. to which he states that he did not give any such statement that Inspector Rajendra Pradad Pandey along with ''R' and her relative Sipahi Lal and Constable Sunil Kumar Singh had come with Aashiq Ali for providing him first aid and after the dressing was done Inspector Rajendra Pradad Pandey told him that he will give money in the morning. To a suggestion, he states that it is incorrect that he is giving such statement under threat and pressure of Inspector and Constable.
31. Nandram (PW-11) is the husband of ''R'. He states that in the night of 30/31.10.2000 he had gone for the harvesting paddy crop and his son also accompanied him. He states that his wife, children and his daughter-in-law were in the house. He further discloses the name of his wife who is prosecutrix/victim in this matter. He states that in the night his brother-in-law Sipahi Lal was present in his house where his wife and children were there. He states that on 31.10.2000 in the morning, Sipahi Lal or any other person did not give any such information to him in Biharipur that Inspector of Bilhaur R.P. Pandey and Constable Sunil Kumar Singh had come to his wife and asked for Rs. 500/- and on not giving the same, had insulted his wife. The said witness was declared hostile and A.D.G.C. was permitted to cross examination. The witness was read over his statement recorded under Section 161 Cr.P.C. to which he said that he did not give any such statement. He denies the fact that he was informed by his wife about the incident of rape and insult after he came back and also that Inspector R.P. Pandey has been apprehended in the village and also that he took his wife to the police station for getting the report lodged. He further denies the fact that Sipahi Lal gave any information to him.
32. Ibrar (PW-12) is the nephew of Aashiq Ali one of the injured persons. In Court, he fails to identify accused Inspector R.P. Pandey and Constable Sunil Kumar Singh. He states that on 30/31.10.2000 between 12:00 AM to 2:00 PM or any other time, he did not see the accused persons committing rape and insulting ''R'. He denies the fact that Inspector R.P. Pandey committing rape on ''R'. He denies the fact that he was accompanying his uncle Aashiq Ali while going to attend the call of the nature and as soon as Aashiq Ali coughed, he and his uncle Aashiq Ali were assaulted by Inspector R.P. Pandey and Constable Sunil Kumar Singh. He further states that it is not true that under the threat and pressure of Inspector R.P. Pandey and Constable Sunil Kumar Singh, he is not telling the truth. He states that he was not medically examined nor his uncle was medically examined. The said witness was also declared hostile and was permitted cross examination by the A.D.G.C. He denies recording of his statement under Section 161 Cr.P.C, he states it is incorrect that due to threat and pressure of the accused persons, he is not speaking the truth.
33. Praveen Kumar (PW-13) is a Constable Police. He states that on 30/31.10.2000 his ravangi was recorded along with Constable Sunil Kumar Singh for duty in village Dalelpur. In the night at about 7:00-8:00 PM, sub-Inspector R.P. Pandey who was the In-charge of the area reached there and then R.P. Pandey took him for dinner to village Garheva where they had their dinner and brought food for Constable Sunil Kumar Singh. He states that till that time, it was too late in the night. Later on, he states that Inspector R.P. Pandey told him to stay there and he went away along with Constable Sunil Kumar Singh and after sometimes both of them came back and along with them there was a lady and a man also present who were talking to each other. After having some talks, both the persons went back. He states that he did not pay any attention as to what they were talking as there was nothing special at that time. He states that later on the Inspector went out for sleeping. In the morning, when he and Constable Sunil Kumar Singh were about to go to the police station then he woke up the Inspector. He was quite sleepy, on which, he said that they may leave and he will come later on and they went to the police station and got their return registered in the records. He states that when the police Inspector and Constable Sunil Kumar Singh had come to the police picket along with lady, the Inspector was talking to her. He further states that he then asked the Inspector as to why he had brought the lady and in the night he should not have brought the said persons and whatever had to be discussed could have been done in the morning, to which, he did not pay any attention. He had taken the lady at a lonely place and Sunil Kumar Singh remained with him. He states that he did not let Sunil go with the Inspector. Then, after about 30-40 minutes both of them came back and the lady and a man accompanying her were sent back. He further states that on 30/31.10.2000 his ravangi was recorded on 19:40 hrs in GD No. 36 to which he had signed. He states that he and Inspector R.P. Pandey was together from the gate of police station and went to village Deva. They reached the police picket at village Dalelpur in the night at about 7:00-7:30 PM he remained at the picket till morning. He returned back to the police station in the morning and got his return registered there. He states that he had eaten his food in village Garheva at about 08:30-09:00 PM and had brought the food for the Inspector and constable with him. He states that he did not see Constable Sunil Kumar Singh and Rajendra Prasad Pandey consuming liquor together and neither was any smell coming out from their mouth. He states that after having their meals, two persons went to raid the house of Nandram. Sipahi Lal along with 2-3 other persons and one lady had come to the police picket. Sipahi Lal was being interrogated separately by the Inspector and then Chotey Lal Katiyar was called and Sipahi Lal was left. All the persons were interrogated and had left. He states that he cannot tell as to who all persons were present there but states that one person was getting himself treated by Dr. Vishwash at the place near the picket to which he asked him as to who had assaulted him but he did not tell him. He states that Rakesh was not present at the picket point but the Sipahi Lal was being interrogated separately at a distance of about 15-20 steps. There was no light present at the picket. The Inspector In-charge had convened a meeting at the police station, in which, he had told them to conduct the raid. He further states that he did not know Sipahi Lal from before. He states that he was also suspended for about four months in the present incident and was reinstated on 10.03.2001. He states that the Officers had not pressurized him that if he will not give any statement like this then he will remain suspended. He states that after interrogation the lady and Sipahi Lal both went back together. The lady and the man was then not called again to the picket point. To a suggestion that he is giving the statement under the threat and pressure of Inspector Sukh Sagar Shukla, he denies the same. He further states that he did not see Constable Sunil Kumar Singh talking to any man or any woman. He states that Constable Sunil Kumar Singh and he remained at the picket and had got their return registered at the police station together. He states that during interrogation at the picket, no one came there and in the morning at 05:30 or after he and Constable Sunil Kumar Singh both went to the police Station. He states that while being with Constable Sunil Kumar Singh he did not see him interrogatting anyone or indulging in any marpeet. He states that it is incorrect that he has given his statement under the pressure and threat of Inspector Sukh Sagar Shukla.
34. Dr. Manju Agarwal (PW-14) had examined ''R' on 31.10.2000 at about 09:00 PM. She states that on external examination, she did not find any mark of injury on her body. Further, she states that on internal examination, she did not find any injury on her private parts. The hymen was old and torn and admits two fingers easily. She states to have prepared a slide of vaginal smear and had referred her for X-Ray examination for estimation of age. She states that after receipt of pathological report and X-Ray Report, she prepared a supplementary report wherein she did not find any dead or alive spermatozoa. As per the X-Ray Report of ''R' she was aged about 25 years. She states that no specific opinion about rape can be given. The medical examination report and the supplementary report were prepared by her which are marked as Exb: Ka-2 and Ka-3 respectively to the records. She states that dead or alive spermatozoa can be found or cannot be found even after wash till 72 hrs. Both the situations are possible.
35. Dr. R.S. Pratihar (PW-15) is the doctor who conduct the medical examination of Aashiq Ali, Rakesh and accused Rajendra Prasad Pandey.
He states to have examined Aashiq Ali on 31.10.2000 and had found three injuries. The same are not being reproduced herein as they have been already quoted above.
He further states that on the same day i.e. 31.10.2000 at about 12:25 PM, he had examined Rakesh brought by constable police and had noted the injuries in the injury report. The said injuries have already been reproduced above and as such are not being reproduced here as being repetitive.
Further, he states that he examined Rajendra Prasad Pandey on the same day i.e. 31.10.2000 at about 01:20 AM and prepared a medical report about the same. The details of the same have already been stated above and are also not being stated herein as being repetitive.
The said medical reports have been proved by him and marked as Exb: Ka-4, Ka-5 and Ka-6 respectively to the records.
He further states that smell of alcohol remains for about 8-10 hrs and depends upon the quantity consumed. The larger the quantity consumed the longer is its effect. He states that he had examined Rajendra Prasad Pandey physically but had not referred him for pathological analysis for determination of alcohol. He states that if blood is tested then the result may defer from that of physical examination. He states that blood was not sent for examination. He further states that if the penis is washed then sperms will not come in the slide. In the cross examination, he states that in the letter received by him which is known as chitthi majroobi there was no mention of any section or case crime number. He states that he did not know as to what was the offence. He states that in the injury report in the time of examination there is an overwriting which has been attested by him. He states that the injuries can be as a result of fall. He denies the suggestion that he has given the injury report under the pressure of Inspector Sukh Sagar Shukla.
36. Dharmendra Kumar Mishra (PW-16) is the head moharrir. He states that on 31.10.2000, he received a telephone information through village Pradhan that Sub-Inspector R.P. Pandey has been apprehended by villagers. He communicates the same to the S.H.O, Sukh Sagar Shukla who proceeded along with force to village Dalelpur at about 08:30 AM and returned to the police station at about 11:40 AM along with some police personnels accompanying him, ''R', Nandram and other persons and Sub-Inspector R.P. Pandey. He further states that an application was given to him by ''R' which is marked as Exb: Ka-1 to the records on the basis of which he registered the First Information Report and prepared the chik and later on, prepared the GD to the same. The chik FIR and the GD are marked as Exb: Ka-7 and Exb: Ka-8 respectively to the records. He states that information about the incident was sent through R.T. Set to higher officials for which a GD was also recorded at about 08:30 AM being GD No. 25 dated 31.10.2000, the same is Exb: Ka-9 to the records. He states to have sealed the clothes of ''R' and accused R.P. Pandey in front of the witnesses. Thus two cloths being the petticoat and sari of ''R' were marked as material Exb: Ka-1 and Ka-2 respectively and underwear of accused R.P. Pandey was marked as material Exb: Ka-3. He states that the clothes were sent for chemical examination. The recovery memo of the clothes of R.P. Pandey is marked as Exb: Ka- 10 and the clothes of ''R' is marked as Exb: Ka- 11. He states that at the time of lodging of the First Information Report, injured Rakesh and Aashiq Ali had also come. He then states that ''R', Rakesh and Aashiq Ai were sent for medical examination to C.H.C. Bilhaur and later on R.P. Pandey after being arrested by the Station House Officer, Bilhaur was also sent to the same place for medical examination. In the cross examination, he states that as per the records of police station dated 31.10.2000 Sub-Inspector R.P. Pandey has been shown to be present at the police station on that date. He states that on the information of village Pradhan, he did not launch a search in the campus of police station for the Sub-Inspector. He states that he had informed that Station House Officer, Bilhaur about the telephonic information received to him. The concerned Station House Officer did not launch a search for the Sub-Inspector but instead proceeded for the place of occurrence along with police force. He states that he did not register the absence of Sub-Inspector R.P. Pandey regarding the information received by him on telephone. He states that he did not register the telephonic information in the records at the police station on the instructions of the Station House Officer but did so on his own. He states that police station Bilhaur is situated after a distance of 13 kms from village Dalelpur. There is a metalled road between the two places. He states that prior to 10:00 AM Aashiq Ali, Rakesh and R.P. Pandey were not sent for medical examination. The medical examination reports were not received at the police station upto 10:30 AM. He states that the medical reports were not sent to the hospital for getting the date and time changed in the same. To the cutting on the same, he states that it is incorrect to say that the cutting in the reports were done at the police station and small signatures were affixed to it. He states that he does not know as to how ''R', R.P. Pandey, Aashiq Ali and Rakesh were taken to the hospital. He states that when ''R' came to the hospital, she was accompanied by her husband Nandram and other persons of village. He states that after lodging of the First Information Report, the clothes taken off by ''R' were immediately taken into custody. In the last, he has been given a suggestion while being cross examined for accused R.P. Pandey that he did not receive any information on telephone and the entire paper work has been done at the police station itself under the supervision of Inspector Sukh Sagar Shukla in a forged manner. For being cross examined for accused Sunil Kumar Singh, he states that he did not recognize the voice of village pradhan on phone but the person disclosed his identity. He states that from the voice, he could not confirm as to that the person calling is village Pradhan or not. He states that on 30.10.2000 at about 08:00 PM R.P. Pandey was present in the police station campus at the time of attendance. He states that as per the records of police station, R.P. Pandey was present at the police station on 31.10.2000 at about 06:05 AM. Constable Sunil Kumar Singh was also present at the police station on 31.10.2000. On the suggestion that he has given a false testimony, he denies. He denies the suggestion that both the persons were detained at the police station and all paper work was done there which is a fabrication.
37. Smt. Kamleshwari Chand (PW-17) is the Circle Officer and the second Investigating Officer of the case. She took up the investigation on 01.11.2000 and concluded it by submitting the charge sheet which is Exb: Ka-14 to the records. She states that after taking over the investigation, she recorded the statement under Section 161 Cr.P.C. of ''R', Rajesh Kumar, Dr. Ram Narain Vishwash, Aashiq Ali, Masooque Ali, Masoom Ali, Sipahi Lal, Nandram etc. She inspected the spot and prepared the site plan. She states that she got the statement under Section 164 Cr.P.C. of ''R' recorded. She submitted charge sheet against R.P. Pandey and as Sunil Kumar Singh was absconding, he was mentioned as an absconder in the charge sheet which was submitted against him, he had later on surrendered in Court. She states that she does not remember as to whether she took any sanction for prosecution against a government servant. She states that in the site plan, she has not shown the place from where the witnesses are said to have seen the present incident. She states that at the time of lodging of the present case, Sri S.P. Pathak was posted as S.P. (Rural Area). She states that she does not know whether ''R' is a lady of criminal antecedent and a case under Section 302 I.P.C. is registered against her. To a suggestion to her that the accused persons have been falsely implicated in the present matter at the behest of S.P. (Rural Area) Sri S.P. Pathak and Sukh Sagar Shukla, she denies. She further denies the fact that she did not interrogate the witnesses and has submitted charge sheet in an incorrect manner. Further, she states that in the CD dated 31.10.2000, the medical reports are not enclosed. She states that she has read the medical report and as per the medical report, the case is made out and hence she submitted charge sheet. To the over writings in the medical reports, she states that they are not related to her. To a suggestion that under the pressure of higher officials, she has done the proceedings in the matter and submitted charge sheet to the same, she denies the same.
38. Sri B.N. Chaturvedi (PW-18) is the Circle Officer and the first Investigating Officer in the matter. The investigation remained with him only upto 01.11.2000. He states that on 31.10.2000 at about 08:30 AM, some unknown person made a telephonic call to him and informed him that Sub-Inspector R.P. Pandey of Police Station Bilhaur has been apprehended by villagers of village Dalelpur and some unrest is there. He informed Inspector Sukh Sagar Shukla about the same, on which, he was informed that the information has been received by Sukh Sagar Shukla and he is proceeding to the said place. This witness also proceeds for the said place. He states that on reaching there, he saw 50-60 people and Sub-Inspector R.P. Pandey present there. The persons present there complained to him that Sub-Inspector R.P. Pandey had raped a lady named ''R' and had also indulged in marpeet with some persons. He states to have then talked with ''R' and Ibrar who stated about the incident, on which, he instructed the Station House Officer, Bilhore to get a First Information Report registered. After registration of the FIR, he started investigation, recorded the statement of ''R' who supported the said occurrence then the statement of accused Sub-Inspector was recorded and asked him as to why he had gone to village Dalelpur as his ravangi is not recorded, to which, he did not reply. He states that superior officers also came at the place of occurrence. The investigation was then transferred from him on 01.11.2000. In the cross examination, he states that at the time when the present incident was reported he was posted as C.O., Bilhaur. Sukh Sagar Shukla was at that time posted as Inspector Bilhaur. Sri S.B. Pathak, S.P. (Rural Area) was also posted there. He states that he, Sukh Sagar Shukla and accused R.P. Pandey were subordinates to Sri S.B. Pathak, S.P. (Rural Area). He states to have received telephonic information that Sub-Inspector R.P. Pandey has been apprehended by persons in village Dalelpur. The said information was received by him on 31.10.2000 at about 08:30 AM when he was at his residence. He does not know as to who informed him about the same and from which number the information came to him. He denies the fact that he did not receive any information and on the pressure of S.P. (Rural Area), the said story has been planted. He states to have recorded the statement of ''R', R.P. Pandey and Pradeep Kumar when he had reached the place. He states that he did not record the statement of the injured person as the investigation was transferred from him. He states that Inspector Sukh Sagar Shukla had reached the said place at a prior time. He denies the suggestion that he did not go to the place of occurrence and the case has been lodged against R.P. Pandey in a fictitious manner. He further denies that under the pressure of S.P. (Rural Area) the present case has been registered in a forged manner.
39. Sukh Sagar Shukla (PW-19) was posted as the Station House Officer of Police Station Bilhaur at the time of the said incident. He states that he received an information from head moharrir that Inspector R.P. Pandey and Constable Sunil Kumar Singh have indulged in some dispute in village Dalelpur and they have been apprehended there, on which, he with other police personnels reached the said place and saw the village pradhan and other people. He further states that ''R' and Inspector R.P. Pandey were also present there. The people present there informed him that at about 02:00 AM, Inspector R.P. Pandey and Constable Sunil Kumar Singh had taken ''R' from her house and committed rape on her and the same was witnessed by some persons who were assaulted by them due to which, they were detained but Constable Sunil Kumar Singh who was along with constable Praveen Kumar on daily gust duty somehow managed to run away and constable Praveen Kumar got his return registered at the police station all alone. He states that people also informed him about the same and gave him a written report, on which, he directed the constable clerk to register a First Information Report and directed him to give the investigation to the Circle Officer and brought Inspector R.P. Pandey with him. ''R' and some other persons of the village and the injured persons were also brought to the police station. He states that Senior Officials had reached the police station and on finding that the matter is against a police officer, the said officer was immediately suspended. The Sub-Inspector had without getting his ravangi registered took an official revolver with him and went to Dalelpur. He further states that in the same sequence, he directed the head constable to take into possession the clothes of ''R' and the accused. Inspector R.P. Pandey being suspended was arrested by him and lodged in the lock up.
40. The accused Rajendra Prasad Pandey in his defence produced two witnesses.
41. Krishna Narayan Bhatt (DW-1) Station House Officer, Police Station Bidhnu. He states about some dispute between him and S.B. Pathak, S.P. (Rural Area). He further states that the S.P. (Rural Area) used to probe him for getting information against R.P. Pandey but no substantial information could be provided to the S.P. (Rural Area) by him. He states that there was a dispute going on between the S.P. (Rural Area) and Sub-Inspector R.P. Pandey.
42. Madan Prasad Sharma (DW-2) is the Sub-Inspector, Vidhnu. He states to be posted there from January 2000 onwards from a period of seven months. He also stated that there was a dispute between Sub-Inspector R.P. Pandey and the S.P (Rural Area).
43. The trial court from the material on record came to the conclusion that ''R' is a downtrodden women, he husband was not at home, the accused on the pretext of conducting raid took her to the fields and committed the occurrence. The witnesses were beaten, received injuries, rape was committed by no one gave evidence. They have either been pressurised or won over and have turned hostile. It is stated that although the prosecutrix/victim has not spoken anything but the circumstances speak for it. The incident cannot be said to be false. Only on the basis of all the witnesses turning hostile, declaring the prosecution to be false, is incorrect.
44. It is apparent that PW-1 is the informant of the present case and also the prosecutrix/victim. Aashiq Ali (PW-2) and Rakesh (PW-4) are the injured persons and also eye witnesses of the incident. Ibrar (PW-12) is also an eye witness of the incident. All the said four witnesses have not supported the prosecution case and have been declared hostile. Apart from these four witnesses Rajesh Kumar (PW-3), Shiv Narain (PW-5) the scribe of the FIR, Smt. Samina (PW-6), the daughter-in-law of Aashiq Ali, Shri Krishna (PW-7) the witness of recovery of clothes of accused and ''R', Dinesh Kumar (PW-8) also the witness of recovery of cloths of accused and ''R', Sipahi Lal (PW-9) the relative of the husband of ''R', Dr. Ram Narayan (PW-10), the doctor who provided first and dressing to Aashiq Ali and Nandram (PW-11) the husband of ''R' have also not supported the prosecution case and have been declared hostile.
45. The law regarding the appreciation of evidence of a hostile witness is well settled and very clear. The Hon'ble Apex Court in the case of C. Muniappan and others Vs. State of Tamil Nadu: (2010) 9 SCC 567 has in para 81 to 83 summarised the same and has held as follows:
"Hostile Witness:
81. It is settled legal proposition that:
"6..... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh v. The State of Haryana: (1976) 1 SCC 389; Rabindra Kumar Dey v. State of Orissa: (1976) 4 SCC 233; Syad Akbar v. State of Karnataka: (1980) 1 SCC 30; and Khujji v. State of Madhya Pradesh: (1991) 3 SCC 627).
82. In State of U.P. v. Ramesh Prasad Misra & Anr.: (1996) 10 SCC 360, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P.: (2006) 2 SCC 450; Sarvesh Naraian Shukla v. Daroga Singh & Ors.: (2007) 13 SCC 360; and Subbu Singh v. State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."
46. It is the case of the prosecution that two accused persons one of whom is a Sub-Inspector of Police and the other is a Constable Police raided the house of ''R' and accused Rajendra Prasad Pandey committed rape on her.
47. The accused particularly Rajendra Prasad Pandey has been challenging the entire prosecution case on the ground of being inimical to the Superintendent of Police (Rural Area) and has suggested the same to the witnesses and even led evidence in defence for the same. In so far as the presence of Aashiq Ali (PW-2), Rakesh (PW-4) and Ibrar (PW-12) are concerned although Aashiq Ali and Rakesh have been brought forward as the two injured eye witnesses but they have not supported the prosecution case and have been declared hostile. Even Ibrar (PW-12) the other eye witness who is said to be accompanying Aashiq Ali while they were on their way to attend the call of the nature also did not support the prosecution case and has been declared hostile.
48. The fact that Sub-Inspector Rajendra Prasad Pandey was detained by villagers of village Dalelpurva also does not get corroboration from the evidence of ''R' and the eye witnesses. The presence of Sub-Inspector Rajendra Prasad Pandey within the territory of Dalelpurva cannot be said to be at a place beyond his official territory as he was posted at the police station within whose jurisdiction, the said village fell. There has been hectic cross examination and suggestion and even the accused persons Rajendra Prasad Pandey has led defence evidence to show his enmity with a superior officer. It has been also admitted in the cross examination of B.N. Chaturvedi (PW-18) the Circle Officer, Bilhaur that he, Sukh Sagar Shukla Station House Officer, Police Station Bilhaur and the accused Sub-Inspector R.P. Pandey, all the three were subordinates to Sri S.B. Pathak, the Superintendent of Police (Rural Area).
49. The medical evidence does not corroborate at all with the prosecution version.
50. In so far as the statement of ''R' recorded under Section 164 Cr.P.C. is concerned, she in Court has resiled from it and has in very specific terms stated that she had deposed under the threat of police. The deposition given in the statement recorded under Section 164 Cr.P.C. remains uncorroborated. ''R' has however retracted from her previous statement, though she was confronted with her statement under Section 164 Cr.P.C. She in her statement under Section 164 Cr.P.C. had affirmed that she was raped by Rajendra Prasad Pandey and Constable Sunil Kumar Singh also instrumental in bringing her from her house with Rajendra Prasad Pandey but he was not present where rape was committed and was standing away on the road. However, since she has retracted from her previous statement the prosecution cannot avail any assistance, for her earlier statement recorded under Section 164 Cr.P.C.
51. In so far as accused-Constable Sunil Kumar Singh is concerned, he has been convicted with the aid of Section 34 IPC. It is settled law that common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available, and therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. He has although not been held guilty under Section 376 IPC but has been held guilty under Section 376(2)(g) IPC.
52. Since all the prosecution witnesses (excluding the ones who were part of interrogation) have not supported the prosecution case and have been declared hostile, the corroboration through medical evidence is also not available, the statement of ''R' recorded under Section 164 Cr.P.C. remains uncorroborated and also that the site plan does not show the place from where the eye witnesses are said to have seen the present occurrence, it is very unsafe to rely on the prosecution case as put forward. There is a sharp variation in the version as brought forward regarding the beating of Ashiq Ali and his injuries received by him. We are conscious enough of the sensitivity with which offence of rape and/or gang rape has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused persons.
53. In the result, this Court comes to the conclusion that the benefit of doubt deserves to be extended to the appellants, namely, Rajendra Prasad Pandey and Sunil Kumar Singh.
54. The trial court while recording the sentence of the appellants as apart from the sentences in other sections has recorded once that the appellants shall be convicted and sentenced under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for one year rigorous imprisonment and a fine of Rs. 1,000/- and later on has again convicted and sentenced the appellants under Section under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for six months rigorous imprisonment. Thus, the sentence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been provided twice in the impugned judgment and order.
The sentence awarded under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for six months rigorous imprisonment to both the appellants is as such set aside.
55. The conviction and sentence as awarded by the trial court is hereby set aside. The impugned judgement and order dated 17.07.2003 passed by the trial court is liable to be set aside, which is accordingly set aside.
56 The present appeal is allowed.
57. The appellants are on bail. They are not required to surrender. Their bail bonds are cancelled and sureties stands discharged.
58. Keeping in view, the provisions of Section 437-A Cr.P.C., the accused appellants, namely, Rajendra Prasad Pandey and Sunil Kumar Singh are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
59. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
60. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
61. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
62. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order date: 10.12.2020
A.S. Rathore/M.Arif
(Samit Gopal, J.) (Ramesh Sinha, J.)