Pappu And Another vs State Of U.P. on 27 July, 2022

[Cites 22, Cited by 1]

Allahabad High Court

Pappu And Another vs State Of U.P. on 27 July, 2022

(Per: Umesh Chandra Sharma,J.) This appeal has been filed against the judgement and order dated 25.5.2013 passed by the Additional District and Sessions Judge, Court No. 6, Budaun, by which the appellants Pappu son of Bhole and Vijaypal son of Bhole have been punished under Sections 323/34, 506, 376(2)(g) and 342 of the I.P.C. They have been punished under Section 376(2)(g) of the IPC with life imprisonment and have been fined with Rs. 1 lac each. In the event of default it has been provided that they would have to further undergo ten months simple imprisonment. They have been punished under Section 342 IPC with an imprisonment of six months along with a fine of Rs. 600/- each. In the even of default, they have to further undergo three months of simple imprisonment. Under Sections 323/34 of the I.P.C., they have been punished with one month's imprisonment with a fine of Rs. 100/- each. In the event of default, they have to further undergo 15 days imprisonment. With regard to punishment under Section 506 IPC, the appellants have been punished with two years' of imprisonment with a fine of Rs. 2,000/- each. In the even of default, they would have to further undergo two months' simple imprisonment. All the sentences were directed to run concurrently.

The case as had been narrated in the first information report was that the first informant along with his mother Smt. Ganga Dei, wife Rekha and two small daughters, on 8.1.2010, while were going from Rasoolpur Kalan to Aslaur, were at about 7PM in the evening stopped by Vijay Pal s/o Bhole, Pappu s/o Bhole and Rishipal son of Saudan. The three miscreants, after stopping them at pistol point took them to a field. There the first informant, his mother with the two daughters were made to stay at a particular place and one miscreant with a pistol remained with them. The two other miscreants forcefully took the wife of the first informant to a mustard field where they, one after the other, raped her.

As per the first information report, the whole incident started off at 7:00PM in the evening of 8.1.2010 and continued till 4:00AM of the next day i.e. till the morning hours of 9.1.2010. At 4:00 am of 9.1.2010, when Dharamveer and Danveer who were passing by saw the first informant and his family and recognized the three miscreants, the latter ran away. Through the first information report, action was prayed for.

Investigation, thereafter, commenced on 10.1.2010. The police in the presence of Roopkishore, the first informant and Dharamveer recovered the underwears of Vijaypal and Rishipal and kept them in a sealed cover.

On the next date, i.e. on 11.1.2010, the Police in the presence of the first informant, Roopkishore and Danveer took into custody the petticoat and the white underwear of the prosecutrix and kept them in a sealed cover. On the very same day, remains of the clothes which were burnt and the broken bangles of the prosecutrix were also taken by the Police and kept in sealed cover.

On 11.1.2010 at about 12:10PM, the prosecutrix was examined by Dr. Anita Dhasmana. On the same day, she found from the vaginal smear that there was no spermatozoa seen in the vagina and also gave her conclusion in the medical report that no definite opinion about rape could be given. In the medical examination, she had also categorically stated that no mark of injury was seen on the body of the prosecutrix.

Roopkishore, the first informant, was also medically examined on 10.1.2010 and likewise, the mother Ganga Dei was also examined on 12.1.2010. After the accused Vijay Pal and Rishipal were arrested they were also made to undergo medical examination on 10.1.2010. The Doctor who had examined the accused had also sent the smear of the penis of the accused for examination and thereafter, reports were also received with a comment that no spermatozoa was seen in them.

The police after investigation submitted the charge sheet on 9.3.2010. Thereafter, the Additional Sessions Judge, Court No. 4, Budaun, framed charges under Section 376(2)(g), 342, 323 and 506 IPC against the appellants Pappu and Vijay Pal on 4.2.2011.

In the meantime, Rishipal one of the accused was declared juvenile on 27.8.2010 and his file, after separating his case, was sent to Juvenile Justice Board.

The accused Pappu and Vijaypal were made to understand the charges but they denied the charges and prayed for trial.

From the side of the prosecution, the first informant, Roopkishore was examined as P.W. -1, the prosecutrix Rekha was examined as P.W. 2 and the Doctor Anita Dhasmana who had done the medical examination of the prosecutrix was examined as P.W. 3. The Investigating Officer Ram Surat Singh Yadav was examined as P.W. 4. Dr. A.K. Verma who had done the medical examination of the first informant and also that of the accused was examined as C.W. -1. Danveer and Dharamveer who as per the first information report had passed by the first informant and his family on 9.1.2010 at around 4:00AM were examined by the Court as court witnesses 2 and 3. The statements of the accused appellants Vijay Pal and Pappu were taken under Section 313 Cr.P.C. They, through their statements, denied the charges and in fact stated that because of the enmity which was there in the village due to the election of the Pradhan, the Gram Pradhan and the first informant together had planted a false case on them.

Thereafter when the trial took place and the Additional District and Sessions Judge, Court no. 6 on 25.5. 2013 convicted the appellants under Sections 323/34, 506, 376(2)(g) and 342 of the I.P.C., the instant criminal appeal was filed.

Ms. Abhilasha Singh was heard for the appellants and Sri Vikas Goswami was heard for the State.

Learned counsel for the appellant, in effect, essentially made the following arguments.

I. The place of occurrence has been differently given by the different witnesses. She submitted that as per the first informant, he along with his family had reached Rashoolpur Ghat and there the three accused persons stopped them and, thereafter, his wife was dragged into the mustard field wherein she was raped several times by the three accused one after the other between 7:00pm of 8.1.2010 and 4:00am of 9.1.2010. She tried to bring to the fore the fact that in the first information report the place of occurrence was shown to be Rashoolpur Ghat whereas in his examination-in-chief the P.W. 1 had stated that when the family had reached Kanua Nagla Ghat then the accused had accosted them and had taken away his wife. This was also as per the learned counsel stated by the P.W. - 2 the prosecutrix that the incident had occurred at Kanua Nagla Ghat.

Learned counsel for the appellant relying upon Nain Singh vs. State f U.P. reported in 1991 (2) SCC 432 and State of U.P. v. Rajveer reported in 2014 (2) ACR 1561 (DB) stated that if there was a discrepancy in the statement of the various witnesses with regard to the place of occurrence then that would vitiate the prosecution case.

II. Learned counsel for the appellant further stated that there were various other contradictions in the evidence of the prosecution witnesses which went to the root of the matter and because of the contradictions the prosecution case would get demolished.

(a) The P.W. 1, Roopkishore the first informant had stated in his evidence that they had reached Kanua Nagla Ghat at about 7.30PM then the accused person had met them while the P.W. - 2, the prosecutrix, had deposed that the accused persons had met them at Kanua Nagla Ghat at around 7:00pm.

(b) Learned counsel for the appellant pointed out that P.W. 1, Roopkishore had deposed that at about 4:00AM on 9.1.2010 Danveer and Dharamveer had reached the place of occurrence while they were passing by and they had questioned the accused persons as to why they had committed the crime and the three accused persons had fled away brandishing the pistol on the complainant and his family, Dharamveer and Danveer. On the other hand, learned counsel also pointed out that P.W. - 2 had deposed that when Danveer and Dharamveer had come to answer the call of nature, namely, for defecation then they had met the accused and, thereafter, the accused had fled away.

(c) The P.W. - 1, Roopkishore had mentioned in the First Information Report the names of the three accused, but in the cross-examination he had stated that when there was a hue and cry and the villagers had collected then the names of the accused were known to him. With regard to Pappu he states that the name came to the fore after he was apprehended. Learned counsel states that Pappu in fact was apprehended much later, about ten days after the incident. She states, therefore, that the P.W. - 1 could not have know his name also at the time of the lodging of the first information report.

To bolster her point, she specifically read out a certain portion of the testimony of the P.W.-1 :- "जब शोर पर` गांव वाले इकट्ठे हो गये थे तो गांव वालो ने इनके नाम पता पकडे जाने पर बताया था। पकड़े जाने पर पप्पू ने अपना नाम पता बताया व गांव वालो ने नाम पता बताये थे अगर यह बात मेरी रिपोर्ट व ब्यान में नहीं है तो वजह नहीं बता सकता। यह बात कि मै मुल्जिमों को पहले से जानता था यह बात न रपट लिखायी न दरोगा जी को बतायी।"

Learned counsel categorically showed to the Court the statement of Ram Surat Singh Yadav, the P.W. - 4 who had stated that the accused Vijay Pal and Rishipal were arrested on 10.1.2010 and, therefore, learned counsel stated that if the names of Vijay Pal and Rishipal were known only on 10.1.2010 then it could not have been possible for the first informant to know the names of Vijaypal and Rishipal on 9.1.2010 when he had got the first information report lodged. Further, from the very statement of Ram Surat Singh Yadav, she had pointed out that Pappu was not arrested till 24.1.2010 and, therefore, again she argued that it was not possible for the first informant to know the name of even Pappu.

(d) At one place, it has been submitted by the learned counsel for the appellant that, the first informant says that he was illiterate and, therefore, he had got the first information report written on his dictation by one Sajjan Singh whereas later on he had said that he was a literate person and he had written the first information report himself and had given it to the Darogaji.

III. The next argument which the learned counsel for the applicant has made was that it was very unlikely that two real brothers would commit the crime of rape together. She has submitted that the appellant Pappu and Vijay Pal were real brother and therefore, there was very little likelihood of their committing the crime of rape together.

IV. The P.W.-2 had deposed in her cross-examination that the accused persons had covered their faces and, therefore, learned counsel had stated that there was no question of any identification. Learned counsel further states that no identification parade was undergone and, therefore, identification itself becomes doubtful.

V. Learned counsel for the appellant has further argued that the P.W. 2 the prosecutrix, had admitted that both Danveer and Dharamveer were relatives as they were uncle and nephew and both of them had brought the family on their bullockart from Asraul to Rasoolpur and they had on that date disclosed the names of the accused. Learned counsel, therefore, submits that this was also a fact which was demolishing the story of the prosecution as P.W. 1 had at one place in his cross-examination submitted that the accused had told their names only after they were apprehended.

VI. It is the contention of the learned counsel for the appellants that the prosecutrix, the P.W. 2, had deposed in her cross-examination that on account of continuous rape which continued throughout the whole night she had sustained injuries in her back and on her buttocks but in fact no external injury was found in the medical examination. Learned counsel for the appellants stated that if three strong young men had committed the crime of rape continuously from 8:00PM of 8.1.2010 which had continued till 4:00AM of 9.1.2010 then the prosecutrix would have been in an extremely bad shape and she would not have been able to even walk properly to the Police Station. In this regard, the statement of P.W. 1 is important which is mentioned below:-

" मेरी पत्नी रेखा को मुल्जिमान पप्पू व ऋषिपाल जबरजस्ती लहटा के खेत में ले गए फिर थोड़ी देर बाद पप्पू हमारे पास आ गया और विजयपाल हम लोगों के पास से मेरी पत्नी के पास चला गया। इसी प्रकार तीनो मुलजिमान का एक - एक करके हम लोगों के पास आना व मेरी पत्नी के पास जाना सुबह चार बजे तक चलता रहा । मेरी पत्नी ने चार बजे के करीब आने पर मुझे बताया की तीनो मुल्जिमान ने बारी -बारी से उसके साथ बुरा काम किया है ।"

Similarly, the P.W.-2, the prosecutrix has deposed that:

"सबसे पहले मेरे साथ बलात्कार ऋषिपाल ने किया था। उसके बाद पप्पू ने मेरे साथ बलात्कार किया था जो आज हाजिर अदालत है। मुल्जिम ऋषिपाल मेरे पास से चला गया तो उसके बाद विजयपाल हाजिर अदालत ने मेरे साथ मेरी मर्जी के बिना बलात्कार किया था। यह क्रम सुबह के चार बजे तक लगातार चलता रहा और सभी ने एक-एक करके चार बजे तक बलात्कार किया था। ...... तीनो लोगो ने रातभर बुरा काम किया जिससे मेरी पीठ, चूतड़ छिल गए थे। मैंने डॉक्टर को यह सब छिला हुआ दिखा दिया था। मेरी पेटीकोट, कच्छी, जांघ, पेट सब वीर्य से सन गए थे। डॉक्टर ने सब देखा।"

In this regard, the statement of P.W. - 3 is also material who deposed that:

"पीड़िता के शरीर पर किसी संघर्ष के निशान नही पाये गए। शुक्राणु भी पैथोलॉजी रिपोर्ट में नही पाये गए...... इसलिए कहा जा सकता है कि 80 घंटे की अवधि में पीड़िता के साथ मैथुन की संभावना नही होती।"

On the contrary learned counsel submits that the medical report states that neither was there any external injury and nor was there any internal injury. What is more, the learned counsel for the appellant states that there were absolutely no signs of any spermatozoa found either in the vaginal smear of the prosecutrix or on the glan penis smear of the accused persons. Learned counsel for the appellant also brought to the notice of the Court the statement of the Doctor which said that in vaginal smear if sexual intercourse had taken place then spermatozoa would be found till as late as 80 hours. She also opined that no definite opinion about rape could be given. In the instant case when the vaginal smear sample was collected well in time and when there was absolutely no indication of any spermatozoa then it could be safely said that no sexual intercourse had taken place. Learned counsel stated that definitely no crime of rape had occurred.

VII. Learned counsel for the appellants has still further submitted that P.W. 1 had stated that he himself, his mother and the two daughters, one of whom was only 15 days old were left under the open sky in the cold January night. Learned counsel states that in the freezing conditions the children and the old mother would have died but in fact nothing at all had happened to them.

Learned counsel for the appellants states that there is no medical report with regard to any fever or with regard to any ailment which might have been there because of the cold freezing night.

Learned counsel for the appellant has also argued that statement of the Court Witness- 2 Danveer and the statement of the Court Witness - 3 Dharamveer were at absolute variance with the case which was taken by the P.W. -1 and P.W. - 2. Learned counsel states that C.W. - 2 Danveer upon reaching the spot had found that there was one male, one female and just one girl child. Therefore, she says that where exactly that 15 days old girl child had disappeared was not clear and, therefore, she states that the prosecution case cannot be said to be truthful.

Similarly, learned counsel for the appellants states that the statement of C.W.-3 Dharamveer was also not in consonance with the statement of P.W. - 1 and P.W.- 2 and C.W.-2. C.W. - 3 has deposed that he did not know Pappu and Vijay Pal at all who were present there in the Court. He states that on 8.1.2010 he had gone to bed at 9:00PM and had got up at around 8:00AM on 9.1.2010 and, thereafter, when he had gone to the field he had found one man, one old lady and just one girl sitting in the cold. He, of course, had also found prosecutrix shivering in the cold. This witness also does not speak about the second daughter who was only 15 days old. Even though the learned counsel for the appellants states that this witness was declared hostile by the prosecution, the statements of the C.W.-3 become very relevant specially in view of the medical examination reports of the prosecutrix and of the two accused.

VIII. Learned counsel for the appellants further submitted that a very important witness i.e. the mother of the first informant Ganga Dei was never brought to the witness box.

IV. Learned counsel also submits that if Rekha had a fifteen days old girl daughter she would not have ventured to travel from Budaun to Delhi and also if the child was born fifteen days prior to the incident then there would have been evidence of this fact in the medical report.

Learned counsel for the appellant while summing up her argument stated that in view of the various contradictions, in view of the statement made by Dharamveer who, though was declared hostile and also in view of the medical report of the prosecutrix and the accused, the conviction of the appellants was wrongly done and the appellants, in fact, ought to have been acquitted.

Learned AGA, however, has opposed the appeal and has submitted that if there were any contradictions in the statements of the P.W. -1 and P.W. - 2 then they were there because of the fact that the witnesses were illiterate persons. Further submission is that the statement of Dharamveer should not be read in evidence on the account of the fact that he had turned hostile and, therefore, his testimony was not reliable. Still further, learned AGA submitted that the incident could not be attributed to any enmity because of the elections of the Pradhan etc. as no evidence was brought on record to that effect.

Having heard the learned counsel for the appellants and the learned AGA, we are of the view that the appeal deserves to be allowed and the appellants ought to be acquitted. Though we find that there were various contradictions in the testimonies of P.W. - 1, P.W. - 2, C.W. - 2 and C.W. - 3 , we cannot lose sight of the fact that P.W. - 1 and P.W. - 2 and also C.Ws. 2 & 3 were illiterate villagers and contradictions in their statements cannot be taken seriously. However, one fact definitely occurs to us and that is that the P.W. - 1, the first informant, had narrated the names of the accused in the first information report as if he knew them at that point of time but in his cross-examination he has stated that he came to know about the names after the accused were apprehended and he specifically states that Pappu had told his name only after he was arrested. From the statement of P.W. - 4, we find that Pappu was arrested much later after 20.1.2010. This does not appear to be an innocent aberration. The lodging of the first information report appears to be a motivated exercise on the part of the first informant. Further, we find that even though C.W.-3 has been declared hostile, his testimony cannot be ignored. He very truthfully has said that though the first informant, the mother and one child were found by him, he does not deny the finding of the prosecutrix in the field . He, however, does not in any manner say that the prosecutrix was raped by the appellants.

In the case of Lalta Prasad vs. State of M.P. reported in AIR 1979 SC 1276, it could not be established that the prosecutrix was ever subjected to any sexual intercourse by the accused against her will. On the other hand, there was the evidence of the Doctor that when she was examined after the occurrence, the Doctor found old torn hymen and no sign of any rape or any forcefully intercourse with her. That being so, the conviction of the appellant under Section 376 IPC was set aside.

In the case of Sakariya vs. State of M.P. reported in 1991 CrLJ 1925(MP) there was an allegation of rape upon a married women who was alleged to have been dragged towards the place of occurrence and then raped but the report of medical examination was in the negative so far as the seminal stains and presence of spermatozoa in the vagina was concerned and to top it all there was not even a scratch on her body and the accused was acquitted.

In the case of Zahoor Ali vs. State of U.P. reported in 1989 CrLJ 1177(All) the Doctor did not find any recent injury on the private parts of the girl. Hymen was found to be torn from before and healed. Therefore, the charge was held to be not proved.

In the case of Charan Singh vs. State of Haryana (1988) 3 Crimes 85 (P&H) it was case of a girl above 16 years who was allegedly raped. In this case also the question was whether when she admitted of having suffered some injuries on her back during the incident and when the same were not found then what had to be done. The lady doctor, however, who examined her did not find any injury on her private parts or on her body during the medico legal examination. No tenderness, swelling or blood was found in the vagina. She further found that two fingers could easily be admitted into the vagina. During the cross-examination, she rightly admitted that the prosecutrix would have suffered tenderness and swelling of the vagina if she was subjected to rape by two young boys. The gap between the occurrence and her medico legal examination ruled out any possibility of any abrasion being healed. Giving the benefit of doubt the accused were acquitted.

In the case of State of State of Orissa vs. Rama Swain and others reported in 2007 CrLJ 714 (Ori) the accused persons were alleged to have committed a rape forcibly on the prosecutrix one after another but the evidence showed that there was dispute between the victim and the accused persons regarding damage of crop by the cattle of the victim over the land cultivated by the accused persons. There was no semen stain on the apparels of the victim found. Thus the evidence of prosecutrix did not inspire confidence and the judgement of acquittal was upheld.

Similarly due to non support of medical report, in the case of Mansingh vs. State of M.P. reported in 2007 CrLJ 201(MP), the conviction of the accused was set aside as the prosecution case was not supported by the medical report.

In the case of State of Maharashtra vs. Abdul Hafees Faroki reported in 1998 CrLJ 3603 (SC), eight persons were accused for raping a girl twice by turns and pushing the girl out of the running train. However, when no serious injury was found on the person of the girl and evidence showed that there was possibility of prosecutrix going with the accused willingly, the acquittal of the accused was held proper.

In the case of Sampad vs. State of Odisha reported in 2001 CriLJ 793(Odisha), there was charge of gang rape against the accused persons who allegedly had forcibly lifted the victim to a nearby river bank on knife point and had committed sexual intercourse with her but no sign of forcible intercourse or mark of violence was found either on the spot or during the medical examination of prosecutrix. It was held that in the absence of a proper proof they could not be convicted under Section 376 (2)(g).

In the case of State of Maharashtra vs. Rameshwar Sridhar Jaware reported in 2008 CrLJ 675(Bom.), the accused persons were alleged to have committed rape on a girl of 16 years. Medical report as well as the report of the chemical analyst was contrary to the evidence of prosecutrix. It was held that the possibility of a false accusation could not be ruled out and the accused was entitled to acquittal.

In the case of Suresh Govinda Nagdeve vs. State of Maharashtra reported in 2008 CrLJ 2943 (Bom.), the allegation was that the prosecutrix was subjected to rape by three accused person. It was alleged that in the night, the crime was committed in an open field but no injury on the private part or on the back of the prosecutrix was found and the Doctor could not confirm the theory of sexual intercourse. Similarly no corresponding injury was there on the private parts or on the body of the accused. Giving the benefit of doubt, the accused persons were acquitted.

In the case of Goverdhan vs. State of M.P. reported in 2006 CrLJ 4118, the parties were not keeping good relations in the past and had lodged FIRs against each other. Medical report did not corroborate the version given by the prosecutrix. It was held that guilt was not proved and conviction was improper.

In the case of Joseph vs. State of Kerala reported in 2000 CrLJ 2467 (SC), the dhoti of the accused contained no blood or semen stains and there was no injury caused to the private part of the body of the victim. The conviction was sought to be proved by the fact that vaginal smear's examination confirmed the presence of semen and spermatozoa. It was held that this was not a ground for conviction of accused for the offence of rape and the accused was entitled to acquittal on the basis of benefit of doubt.

In even this case no semen or spermatozoa was found in the vaginal smears of the victim. The facts of the above cited decisions are almost similar to the facts of the present case. It is the case of the appellant that due to enmity regarding election of gram pradhan they were falsely implicated and also no spermatozoa or semen or any injury was found during the medical examination of the victim and the accused person. Therefore, all the above citations are applicable to this case.

Furthermore, we find that when the C.W.-2 and C.W. - 3 give their statements they have conveniently forgotten about the presence of the 4th member i.e. the 15 days old child about whom the first informant had mentioned in the first information report. Furthermore, and most importantly, we find from the medical examination that the prosecutrix had absolutely no external or internal injury despite the fact that the prosecution has stated throughout that she was gang-raped from 7:00PM of 8.1.2010 to 4:00AM of 9.1.2010. This seems highly improbable. If three young strong men commit the crime of rape on a feeble woman who was 19 years of age and weighed only 37 kg as is clear from the medical report of Dr. Anita Dhasmana, then she would definitely have had at least some injuries. The prosecution had to prove its own case to the hilt and when no injuries, external or internal, were found on the body of the prosecutrix and no dead or live spermatozoa were found in her vaginal smear and the glan penis smear of the accused-persons then it can safely be said that at least there was no crime of rape committed on her.

Under such circumstances, the appeal is allowed. The order dated 25.5.2013 passed by Additional Sessions Judge, Court No. 6, Budaun, in S.T. No. 5 of 2011, State vs. Pappu and another, under Section 376(2)(g), 342, 323, 506 IPC, P.S. Jarifnagar, District - Budaun, is quashed and set aside.

The accused-appellants- Pappu and Vijaypal, who are in jail if they are not wanted in any other criminal case be set free forthwith.

Order Date :- 27.7.2022 PK (Umesh Chandra Sharma,J.)........(Siddhartha Varma,J.)

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