Dan Singh vs State of U.P.

Ranjana Pandya, J.—Heard learned counsel for the appellant and learned A.G.A.

This appeal has been preferred against the judgment dated 08.06.2012 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Bareilly, in S.T. No. 118 of 2011, under Section 376 I.P.C., registered as Case Crime No. 917 of 2010, Police Station Nawabganj, District Bareilly, whereby the accused appellant Dan Singh was found guilty under Section 376 I.P.C. He was thereby convicted and sentenced to 10 years R.I. with a fine of Rs. 5000/- with default stipulation.

Prosecution story according to first information report is that the informant Giridhar Gopal the work of welding near Ambedkar Park. On 30.08.2010, at about 03:00 P.M., his daughter Kumari Ritu aged about 7 years was going home after giving food to the informant. When the girl reached near St. Thomas School, one boy forcibly took his daughter into the jungle and raped her against her wishes. Vijay and Guddu who were fishing at the nearby pond raised hue and cry at which the accused fled away. The informant and his family members along with the girl were tracing the accused since 30.08.2010. On 31.08.2010, the victim identified the accused Dan Singh, who was beaten and apprehended by the informant and his family members. The accused Dan Singh sustained injuries on his face. This accused was brought to the police station by the informant and a written first information report was lodged.

On the basis of this first information report, Constable Clerk Shishpal prepared the chick report and scribed the G.D. Investigation was entrusted to PW-6 S.I. Khyali Ram who copied the chick report and G.D. in the case diary, recorded the statement of the victim, went to the place of occurrence, inspected the spot at the pointing out of the informant, prepared the site plan and proved it as Exhibit Ka-2. He further recorded the statement of Rakesh, Budhsen and other witnesses and took the clothes of the victim which she was wearing at the time of occurrence into his possession. He prepared the memo. After that he copied the medical report and the supplementary report in the case diary. Further the victim was sent for recording of her statement under Section 164 Cr.P.C. which statement was copied in the case diary. The statements of witnesses Lala Ram, Usha,Vijay and Guddu have also been recorded. After that this witness has submitted charge sheet against the accused and proved it as Exhibit Ka-3. This witness proved the recovery memo as Exhibit Ka-7 and clothes of the victim as Material Exhibit-4. This witness has further proved by secondary evidence the chick report as Exhibit Ka-9 and copy of G.D. as Exhibit Ka-8.

The prosecution examined Giridhar Gopal who is also informant as PW-1 who proved the written report as Exhibit Ka-1, PW-2 is Ritu, the victim in the matter who proved her statement under Section 164 Cr.P.C. as Exhibit Ka-10, PW-3 is Usha, the mother of the victim, PW-4 is Vijay who is said to be a witness of fact, PW-5 is Guddu who is also said to be a witness of fact, PW-6 is I.O. Khyali Ram, PW-7 is Dr. Shashi Gautam who medically examined the victim and proved the medical report as Exhibit Ka-4 and PW-8 is Dr. Raj Kumar who conducted the Ossification test and proved the supplementary report as Exhibit Ka-6 & X-ray plate as Material Exhibit-1. After examining as many as 8 witnesses, the prosecution closed its evidence.

The statement of accused Dan Singh was recorded under Section 313 Cr.P.C. in which he denied the occurrence and stated that he is a married man and he has been falsely implicated in this case.

After perusing the record and hearing the counsel for both the parties, learned lower court has convicted and sentenced the accused as aforesaid.

Feeling aggrieved, the accused has come up in this appeal.

The following points were raised during the course of argument:--

* (i) There is delay in lodging the first information report.

* (ii) The victim is a minor and being a child witness, her evidence has to be carefully scrutinized.

* (iii) The testimony of the victim is shaky, improbable, unreliable and her testimony cannot be made the basis for conviction of the appellant.

* (iv) No charge has been framed against the appellant.

* (v) The evidence is contradictory and the conviction cannot be sustained.

(i) There is delay in lodging the first information report:--

Learned counsel for the appellant has submitted that there is delay in lodging the first information report and the delay has not been explained. According to the prosecution case, the occurrence took place on 30.08.2010 at about 3 O''clock in the day time, whereas the report of the alleged occurrence was lodged on the next date i.e. 31.08.2010 at 02:30 P.M. so there is delay of about 24 hours in lodging the first information report, whereas the distance of the police station from the place of occurrence was only 1 Km. It has been submitted on behalf of the appellant that this delay of 24 hours in lodging the first information report has not been explained by the prosecution, hence, there are chances of false implication of the accused. Regarding delay, it has been stated that after the accused raped the victim, he ran away. The informant and his family members along with the victim were trying to trace the accused and when the victim had identified the accused, he was assaulted and brought to the police station.

PW-1 Giridhar Gopal has stated in his statement that he and his family members were trying to trace the accused. He has further stated that neither he apprehended the accused nor brought him to the police station, thus, this story, that the accused was traced and identified by the victim and her family members on the next day, has no legs to stand, inasmuch as the informant has even denied of having written the report and has said that he did not put his signatures on the written report, infact the police personnel had written the report. He has further stated that the report was neither read over to him nor he knew what was written in the first information report. He has again stated that, he did not name the accused Dan Singh, hence, this witness was declared hostile by the prosecution and the A.D.G.C. was permitted to cross-examine this witness. When this witness has stated that his daughter had recognized the accused and he neither assault the accused nor took him to the police station, this statement is in total contradiction to the first information report. Although, the first information is only a corroborative piece of evidence on which the machinery is set into motion but in the present case the first information report and the prosecution case are contradictory, hence, I conclude that the prosecution has failed to give any plausible reason for the delayed first information report.

(ii) + (iii) The victim is a minor and being a child witness, her evidence has to be carefully scrutinized. The testimony of the victim is shaky, improbable, unreliable and her testimony cannot be made the basis for conviction of the appellant:--

Learned counsel for the appellant has stated that as far as the statement of Ritu is concerned, admittedly she is a child witness is a being minor. Before proceeding further the law relating to child witness has to be looked into. In support he has placed reliance on Alagupandi @ Alagupandian Vs. State of Tamil Nadu, in which it has been laid down that "it is no law that the evidence of a child witness shall be rejected, even if it is found reliable. It has been laid down that corroboration is not an absolute requirement but it is only rule of prudence."

He has further placed reliance upon in Mangoo and another Vs. State of Madhya Pradesh, , in which the Hon''ble Apex Court while dealing with the evidence of a child witness observed that there was always scope of tutoring the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

In Panchhi and others Vs. State of UP, , the Hon''ble Apex Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."

In the aforesaid background, the statement of the victim has to be looked into.

Ritu, the victim PW-2 was examined before the court and the court has recorded the finding that the understanding of the witness was such that she could state on oath before the court. In the examination-in-chief, this witness has stated that when she was going back after serving food to her father, one boy came, closed her mouth, took her in jungle and raped her. She went back home and narrated the incident to her mother. Her father and other people tried to find Dan Singh. She recognized Dan Singh and told her father that Dan Singh has raped her. In cross-examination, this witness has stated that she had gone to the police station on the same day. Her uncle (Tau) and father had accompanied her. They had reached the police station after sun set. After that, she came home and never visited the police station. This part of the statement does not find corroboration from either the first information report or the statement of her father PW-1 Giridhar Gopal. In cross-examination, this witness has further stated that after returning home, she had dinner. On the day of occurrence, after the incident, she remained at her house. she has stated that the name of the accused was stated to her by her mother on the date of occurrence. Although, neither, she was known to the accused Dan Singh nor Dan Singh knew her. In contradiction to the prosecution theory, the victim PW-2 has stated that on the next day of occurrence, she had gone to school and had returned at 12 O''clock. She has further stated that on the day of occurrence, her father gave her Rs. 5/- and she ate cream roll with that money. Contradicting herself, she has stated that she did not sustain any injury. Again shattering the whole prosecution theory, she has stated that on the day of the incident, the accused had scolded her but she did not know why she was scolded. Finally, contradicting her own statement and causing a shadow of doubt on her own statement and on the prosecution story, she has stated that she does not know Dan Singh. She has not seen him. Nobody assaulted her. She never told her father that Dan Singh had raped her. Thus, it appears that this child witness, who is a minor and also victim in this case has been tutored by some one. She could not sustain the test of cross-examination, hence, her statement is not reliable and the possibility of her being tutored cannot be ruled out. thus, I conclude that the statement of this child witness being the victim is fully unreliable and unworthy of credit.

(iv) No charge has been framed against the appellant:--

Learned counsel for the appellant has submitted that no charge can be framed against the appellant. The charge under Section 376 I.P.C. was framed on 08.04.2011 by Additional sessions Judge/Special Judge E.C. Act, Bareilly. The charge was also signed by the P.O. But it does not bear the signatures of the accused. Although, I consider it to be an irregularity which shows the manner in which the trial was conducted, hence, I conclude that as per order sheet dated 08.04.2011, the charge was framed against the accused, it was read over to the accused who pleaded not guilty and claimed trial, hence, the charge has been framed against the accused and he has not been prejudiced.

(v) The evidence is contradictory and the conviction cannot be sustained:--

The statement of PW-1, the informant and PW-2, the victim have been discussed earlier. PW-3 is Usha Devi, the mother of the victim who has stated that the clothes of the victim were not seized in her presence. She was not interrogated. She only signed on blank papers. This witness was declared hostile by the prosecution and the A.D.G.C. cross-examined her but there is nothing in the cross-examination which could help the prosecution. PW-4 is Vijay who has specifically stated that he neither heard nor saw the accused raping the girl. On the alleged date, he was out of station. This witness was also declared hostile and cross-examined by the prosecution but to no effect. The next witness is PW-5 Guddu who has said that he neither saw nor heard anything about the rape. He has said that he is completely vegetarian and there was no reason for his going for fishing. This witness was also declared hostile by the prosecution and was cross-examined but he could be of no assistance to the prosecution. PW-7 is Dr. Shashi Gautam who has opined that minor injuries were found on the person of the victim which can be sustained due to fall. The victim had not sustained any internal injury. Contradicting the doctor, the victim has stated that she did not sustain any injury on the date of occurrence. Thus, I conclude that the oral evidence is shaky, unreliable and tutored. The medical evidence is not in consonance with the ocular evidence and infact, this is a case of no evidence and the trial court has committed grave error in convicting the accused in the case in which there was practically no evidence.

Analyzing the complete evidence on record I conclude that the whole story is concocted, false, unreliable and the prosecution has miserably failed to prove the charges against the accused person.

Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused person and charges levelled against him have not been proved beyond reasonable doubt, as such, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 08.06.2012 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Bareilly, in S.T. No. 118 of 2011, under Section 376 I.P.C., registered as Case Crime No. 917 of 2010, Police Station Nawabganj, District Bareilly is hereby set aside.

Accordingly the appeal is allowed.

The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.