Allahabad High Court
Titu And 2 Others vs State Of U.P. on 19 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 2805
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 47 Reserved on 13.05.2019 Delivered on 19.07.2019 Case :- CRIMINAL APPEAL No. - 4415 of 2015 Appellant :- Titu And 2 Others Respondent :- State Of U.P. Counsel for Appellant :- Pankaj Kumar Shukla, Noor Mohammad Counsel for Respondent :-Government Advocate, Devesh Kumar Shukla Connected with Case :- CRIMINAL APPEAL U/S 372 Cr.P.C. No. - 979 of 2017 Appellant :- Devendra Kumar Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Devesh Kumar Shukla Counsel for Respondent :- Government Advocate, Anand Priya Singh, Noor Mohammad Hon'ble Ram Surat Ram (Maurya) ,J.
Hon'ble Rajiv Gupta, J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri Noor Mohammad, for the accused-appellants and Sri Nafees Ahmad, A.G.A., for State Of U.P. Sri Devesh Kumar Shukla, counsel for the informant, did not appear.
2. Titu, Deva @ Devendra and Cheta @ Rinku (the accused) have filed Criminal Appeal No. 4415 of 2015, from the judgment of Additional Session's Judge, Court No. 5, Aligarh, dated 09.09.2015, passed in S.T. No. 682 of 2013, State Vs Titu and others, [arising out of Case Crime No. 84 of 2013, under Section 302, 376 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), P.S. Madrak, district Aligarh], convicting them under Section 5/6 of Protection of Children From Sexual Offences Act, 2012 and sentencing for 14 years rigorous imprisonment and fine of Rs. 10,000/- each, with default stipulation. Devendra Kumar (the informant) has filed Criminal Appeal under Section 372 Cr.P.C. No. 979 of 2017, from the aforesaid judgment, acquitting Ram Veer (the accused) from all the charges and Titu, Deva @ Devendra and Cheta @ Rinku (the accused) from the charges under Section 302, 376-D IPC. Under the order of Hon'ble the Chief Justice dated 21.12.2017, both the appeals were consolidated and listed before this Bench for hearing.
3. On the written complaint (Ex-Ka-1) of Devendra Kumar (PW-1), FIR (Ex-Ka-4) of Case Crime No. 84 of 2013 was registered on 26.03.2013 at 16:00 hours, under Section 302, 376 IPC, at P.S. Madrak, district Aligarh, against unknown accused, by Constable Ranveer Singh (PW-6). It has been stated in the FIR that Hemlata, aged about 12 years, daughter of Radhey Shyam (niece of the informant) had gone to throw cattle's dung at 'ghura' on 26.03.2013 at 10:00 AM. When she did not return back even after lapse of considerable time, then they began to search her. After great efforts, her dead body was found lying in semi-nude condition, in a field where wheat was sown, at some distance away from the 'ghura' with her hands and legs tied with her scarf. There were scratch marks on her neck and bite mark on her cheek. After lodging the report, the accused be traced and legal action be taken against them.
4. After registration of FIR, SHO Vipin Kumar (PW-9), started the process of investigation in the matter and copied out the check FIR and G.D. entry in Case Diary and recorded statements of the informant and Constable Ranveer Singh. The I.O. then took blood stained and plain earth from the spot and prepared its recovery memo (Ex-Ka-7). He made spot inspection on the pointing out of the informant and prepared site-plan (Ex-Ka-8). Thereafter he recorded the statement of Smt. Suman, cousin of the deceased and copied out the postmortem report in Case Diary. During investigation, in the statement of Pappu, names of Titu, Deva @ Devendra and Cheta @ Rinku came in light on 31.03.2013. He interrogated Ram Veer Jatav in this respect. He arrested Titu, Deva @ Devendra, Cheta @ Rinku and Ram Veer on 04.04.2013 and recorded their statements, in which they confessed their guilt. On 06.04.2013, he got statement (Ex-Ka-2) of Pappu recorded under Section 164 Cr.P.C. On 07.04.2013, he copied Inquest in Case Diary and recorded statements of Har Prasad, Padam Singh, Chandrapal, Ram Kishore, Ashok Kumar, Constables Rajendra Prasad and Sudhir Singh. He recorded statements of Gulab Singh and Hari Singh on 11.04.2013. After completing investigation, he submitted charge sheet (Ex-Ka-9) against the accused, under Section 302, 376-D IPC and Section 5/6 of Protection of Children From Sexual Offences Act, 2012, on which cognizance was taken.
5. On the direction of SHO Vipin Kumar, SI Shiv Charan Lal conducted Inquest (Ex-Ka-6) on the dead body on 26.03.2001 in between 16:25 and 18:05 hours. He prepared photo lash, challan lash and letters to the authorities for conducting postmortem of the dead body and handed over the dead body to Constables Rajendra Prasad and Sudhir Singh. Dr. Iqrar Ahmad (PW-3) conducted autopsy on the person of the deceased on 26.03.2013 at 11:55 PM and prepared Postmortem Report (Ex-Ka-3) in which following ante-mortem injuries were noted:-
(i) Vagina tier present at left post part of vaginal wall, size 1.5cm x 0.8cm. anterior commissure on both side mucocutaneous junction abraded. Blood present in vagina. Hymen freshly ruptured (Torn).
(ii) Abrasion 4.0cm x 2.5cm over left shoulder.
(iii) Abrasion 2.0cm x 1.5cm over right groin area.
(iv) Abrasion 2.0cm x 2.0cm over medial part of right thigh.
(v) Abrasion 3.0cm x 2.0cm below left knee on anterior part of left leg.
(vi) Abrasion 1.0cm x 1.0cm over anterior part of right arm, 10cm below right shoulder.
(vii) Multiple abrasions over left cheek in an area of 8.0cm x 6.0cm.
(viii) Single abrasion over right face front lateral to angle of mouth.
(ix) Abraded contusion 5.0cm x 3.0cm over left breast and nipple.
(x) Multiple abrasion on lower part of anterior part neck and chest, 10.0cm x 8.0 cm.
(xi) Multiple abrasion below angle of jaw, in an area of 5.0cm x 3.0cm.
(xii) Ligature mark over mid part of neck, horizontal in direction, all around the neck, base of mark is brown in colour, subcutaneous tissue under ligature mark is ecchymosed of greater cornua of hyoid present.
In internal examination, brain and its membranes were congested. Pleura, larynx and trachea were congested. Both lungs were congested. Pericardium was congested. Right chamber of heart was full and left was empty. Stomach contained 100ml. watery matter. Gall bladder was half filled and congested. Spleen, kidney and pancreas were congested. Uterus was non gravid.
In the opinion of the doctor, cause of death was asphyxia as a result of ante-mortem strangulation.
6. On committal, the case was registered as ST No. 682 of 2013, State Vs. Titu and others. Additional Session's Judge framed charges against the accused on 03.09.2013. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, the prosecution examined Devendra Kumar (PW-1), the informant, Pappu (PW-2), an eye witness, but he did not support the prosecution case and was declared hostile, Dr Iqrar Ahmad (PW-3), to prove Postmortem Report (Ex-Ka-3), Gulab Singh (PW-4) and Hari Singh (PW-5), to prove that the accused Titu, Deva and Cheta were seen in the vicinity of the place of occurrence on 26.03.2013 at 8:00 AM, Constable Ranveer Singh (PW-6), to prove check FIR, Padam Singh (PW-7), a Panch of the Inquest (Ex-Ka-6), Smt. Suman (PW-8), cousin of the deceased and SI Vipin Kumar (PW-9), Investigating Officer. After completion of the evidence of the prosecution, all the incriminatory facts and materials were put to the accused under Section 313 CrPC. They denied the facts and materials and claimed false implication due to enmity and party-fraction in the village, at the instance of Ram Kishor, Pradhan, against whom, they had made some complaint.
7. After hearing the parties, Additional Session's Judge, by the impugned judgment, held that from the circumstances and medical evidence, it is proved that after committing rape, Hemlata was murdered by strangulation on 26.03.2013 at about 10:00 AM. Pappu (PW-2) has deposed as an eye witness but he did not support the prosecution story in Court and was declared hostile, as such charges against the accused under Section 302 and 376-D IPC were not proved. Pappu (PW-2) has admitted giving statement (Ex-Ka-2) under Section 164 Cr.P.C. before Magistrate. From the statements of Gulab Singh and Hari Singh (PWs-4 and 5), it is proved that the accused Titu, Deva and Cheta were seen near the place of occurrence on 26.03.2013 at 8:00 AM. All the four accused were arrested at a time, as such raising presumption under Section 29 of Protection of Children From Sexual Offences Act, 2012, the accused Titu, Deva and Cheta were held guilty for the offences under Section 5/6 of Protection of Children From Sexual Offences Act, 2012. On these findings, he acquitted Ram Veer from all charges. Titu, Deva @ Devendra and Cheta @ Rinku were acquitted under Section 302, 376-D IPC and convicted under Section 5/6 of Protection of Children From Sexual Offences Act, 2012. Hence, these appeals have been filed.
8. We have considered the arguments of the counsel for the parties and examined the record. The prosecution examined Devendra Kumar (PW-1), uncle of the deceased Hemlata and Smt. Suman (PW-8), her cousin, to prove that on 26.03.2013 at 10:00 AM, Hemlata, aged about 12 years, daughter of Radhey Shyam had gone to throw cattle's dung at 'ghura' situate at the outskirts of the village. When she did not return after pase of considerable time, then Smt. Suman and her husband began to search her. After great efforts, they found her dead body lying in semi-nude condition, in a field where wheat was sown, at some distance from the 'ghura' on 26.03.2013 at about 14:00 hours. Her hands and legs were tied with her scarf. There were scratch marks on her neck and bite mark on her cheek. Devendra Kumar gave information to the police on telephone No. 100, on which the police came on the spot and conducted Inquest on the person of the deceased. FIR was lodged on 26.03.2013 at 16:00 hours by Devendra Kumar, against unknown person. Smt. Suman (PW-8) has further stated that she had seen Pappu in the vicinity of the place of occurrence, plucking leaves of hemp. In cross-examination, she stated that Gulab Singh and Hari Singh (the witnesses) were her maternal uncles and they also reached near the dead body.
9. In Inquest (Ex-Ka-6), both the hands and legs of Hemlata were found tied with scarf. Her clothes were torn. Dr. Iqrar Ahmad (PW-3) has proved Postmortem Report (Ex-Ka-3). According to the Postmortem Report her death was caused due to asphyxia as a result of strangulation in between 8:00 AM and 12:00 AM on 26.03.2013. There were injuries on her breast, vagina and cheek, on the basis of which Dr. Iqrar Ahmad (PW-3) has opined that probably she was raped. Although he has sent vaginal smear for pathological test but its report has not been brought on record.
10. In the FIR, no one was cited as an accused/suspected accused. SI Vipin Kumar (PW-9) interrogated Pappu (PW-2) on 03.04.2013, who for the first time allegedly disclosed the names of all the four accused and stated that they had committed gang rape and murder of Hemlata. Then he got statement of Pappu recorded under Section 164 Cr.P.C. on 06.04.2013. Pappu (PW-2), in his statements before the Trial Court, has completely disowned his statements under Section 161 and 164 Cr.P.C. and has stated that the police had terrorized him to give such statements, as well as he had not seen anything. In view of his statements in Court, no reliance can be placed upon his statements under Section 164 Cr.P.C. This solitary eye witness did not support the prosecution story.
11. The prosecution examined Gulab Singh and Hari Singh (PWs-4 and 5) to prove that the accused Titu, Deva and Cheta were seen on 26.03.2013 at 8:00 AM, under pipal tree, which was in the vicinity of the place of occurrence. The prosecution tried to prove the charges on the basis of circumstantial evidence as all these four accused were arrested at the same time. Gulab Singh (PW-4) was maternal uncle and Hari Singh (PW-5) was mausa of the deceased. Gulab Singh and Hari Singh (PWs-4 and 5) are residents of village Mandir Ka Nagla, which was at a distance of 4 KM from the place of occurrence. Their presence at the place of occurrence on the date of incident was merely a chance, as such, they are chance witnesses. Supreme Court in Satbir v. Surat Singh, (1997) 4 SCC 192, Harjinder Singh v. State of Punjab, (2004) 11 SCC 253, Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360) and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 has held that the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. In Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 has held that deposition of a chance witness whose presence at the place of incident remains doubtful, should be discarded.
12. Gulab Singh (PW-4) stated that 26.03.2013 was the day of Holi festival. He along with Hari Singh (PW-5) was going to village Mukundpur to give spike of barley corn. He saw Titu, Deva and Cheta under the pipal tree. They were working with him, as such he was familiar with them. Leaving them there, they went to their house and reached there at 8:00 AM. and at about 10:00 AM, they came to know that these persons had committed the ghastly incident of rape with the girl and later killed her.
In cross-examination, he stated that his village Nagla Ka Mandir was at a distance of 4 KM from village Mukundpur. The incident occurred on the day of Holi and on the next day, festival of colour was to be celebrated. Spike of barley corn used to be brought one day prior to the day of festival of colour. The police recorded his statement after 5-6 days of the incident. He had stated to the police, about bringing of spike of barely corn but it was not recorded in his statements under Section 161 Cr.P.C. He stated that he had reached at 8:00 AM but had not informed the police that he had come to know about the murder at 10:00 AM. When he, Mahabir Singh and Hari Singh reached at the house of his sister, the villagers gathered at her house. The police came at 10:30 AM. He did not inform the police about the presence of the accused under the pipal tree as it was usual for the people to gather under the tree on the occasion of a festival. He was present at the time of Inquest. On the date of incident, 4-5 persons were sitting under the pipal tree.
13. Hari Singh (PW-5) stated that on the date of incident, he was going to village Mukundpur from village Mandir Ka Nagla. On the way, there was a pipal tree, beneath which, four boys were there. Their names were Banti, Deva, Titu and Cheta. They were working as labourers, while he was working as mason, as such he knew them. He was going to take spike of barley corn at the house of Radhey Shyam. He came back to his house. He received the information on telephone that daughter of Radhey Shyam was murdered. The incident of murder had not taken place before his eyes. He cannot say as to who had committed murder. Apart from these three persons, he did not know the name of any other person of that village.
In cross-examination, he stated that he had received information of the murder of the daughter of Radhey Shyam on telephone, on which he and Gulab Singh reached village Mukundpur at about 10:00 to 10:30 AM and found dead body of the girl lying in the field. He remained at village Mukundpur for about one to one and half hour but did not meet Gulab Singh. He did not inform Radhey Shyam that he had seen three persons under pipal tree, as it is a usual practice for people to stand under the trees. He did not have any conversation with the three accused.
14. According to Smt. Suman (PW-8), she and her husband searched the dead body of Hemlata for the first time on 26.03.2013 at 14:00 hours. At that time, Gulab Singh and Hari Singh (PWs-4 and 5) also came there. FIR was lodged on that day at 16:00 hours. If Gulab Singh and Hari Singh (PWs-4 and 5) had seen Titu, Deva and Cheta under the pipal tree in the morning, there could be no reason for not disclosing this fact in the FIR. At the most, according to their statements, the accused were seen under the pipal tree at 8:00 AM, while Hemlata went from her house to throw cattle's dung at 10:00 AM. Chain of circumstances are not complete to exclude any other possibility. Apart from the fact that the accused were seen under the pipal tree, there is no other incriminatory evidence against them to prove their involvement in the offence. In these circumstances, Trial Court has rightly held that from the circumstantial evidence, charges against the accused under Section 302 and 376-D IPC were not proved. Findings of Trial Court in this respect does not require any interference by this Court.
15. Supreme Court in Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497, has held that it is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established:
(i) Circumstances should be fully proved.
(ii) Circumstances should be conclusive in nature.
(iii) All the facts established should be consistent only with the hypothesis of guilt.
(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal, (1992) 3 SCC 300; Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.
16. The Court below has raised presumption under Section 29 of Protection of Children From Sexual Offences Act, 2012, in order to convict the appellants Titu, Deva and Cheta under Section 5/6 of this Act, which is quoted below:-
"Section 29. Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
17. Constitution Bench of Supreme Court in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, has held that the statutory provisions contained in the Law of Evidence may be said to be based on the doctrine that that system of law is best which leaves least to the Judges' discretion. That is why "the laws of every well-governed State have established rules regulating the quality, and occasionally the quantity, of the evidence necessary to form the basis of judicial decision". It is in its attempt to regulate the production of and proof by evidence in a judicial enquiry that the rules of evidence refer to certain presumptions either rebuttable or irrebuttable. The term "presumption" in its largest and most comprehensive signification, may be defined to be an inference, affirmative or disaffirmative of the truth of falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted. Thus, according to Best, when the rules of evidence provide for the raising of a rebuttable or irrebuttable presumption, they are merely attempting to assist the judicial mind in the matter of weighing the probative or persuasive force of certain facts proved in relation to other facts presumed or inferred. The whole scheme of the Evidence Act is thus intended to serve the objective of regulating the proof of facts by subjecting the production of evidence to the rules prescribed in that behalf. It is in the light of this function and objective of the Evidence Act that the argument of the petitioners has to be judged.
18. Supreme Court in Baijnath v. State of M.P., (2017) 1 SCC 101, has held that a conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss over and condone its failure to prove credibly, the basic facts enumerated in the sections involved, lest justice is the casualty.
19. In the present case, the prosecution has failed to prove the complicity of Titu, Deva and Cheta (the appellants) in any manner, as such, the prosecution has failed to discharge basic burden of proof. Pesumption for aggravated penetrative sexual assault cannot be raised against the accused.
20. From the aforesaid discussions, Criminal Appeal No. 4415 of 2015, Titu and others vs. State of U.P. succeeds and is allowed. The judgment of Additional Session's Judge, Court No. 5, Aligarh, dated 09.09.2015, passed in S.T. No. 682 of 2013, State Vs Titu and others, [arising out of Case Crime No. 84 of 2013, under Section 302, 376 IPC, P.S. Madrak, district Aligarh, convicting Titu, Deva @ Devendra and Cheta @ Rinku (the appellants) under Section 5/6 of Protection of Children From Sexual Offences Act, 2012 and sentencing for 14 years rigorous imprisonment and fine of Rs. 10,000/- each, with default stipulation, is set aside. Criminal Appeal under Section 372 Cr.P.C. No. 979 of 2017, Devendra Kumar Vs. State of U.P. and others has no merit and is dismissed.
Order dated: 19.7.2019 Jaideep/-
[Rajiv Gupta, J.] [ Ram Surat Ram (Maurya),J.].