Mishri Lal and Another vs State of U.P.

N.K. Mehrotra, J.—This is an appeal u/s 374(2), Cr. P.C. against the judgment and order dated 22.8.1989 passed by I Vth Additional Sessions Judge, Pratapgarh in Sessions Trial No. 146 of 1987 convicting and sentencing the Appellants u/s 376, I.P.C. to 5 years R.I. and a fine of Rs. 1,500 and u/s 457, I.P.C. to 2 years and six months R.I. and a fine of Rs. 500.

During the pendency of the appeal, Appellant Rajendra Prasad alias Barsati Pasi was killed in encounter with the police. The appeal filed by Rajendra Prasad alias Barsati Pasi stands abated.

On the date of hearing another accused. Mishri Lal did not appear either himself or through counsel. Since it is an appeal of the year 1989, it was heard on merit after giving opportunity to the learned Additional Government Advocate, in view of the decision of the Hon''ble Supreme Court in Bani Singh and ohters Vs. State of U.P.,

The prosecution case in brief is that informant Chhotey Lal had settled down at Ramapur (Gosepur), P.S. Raniganj, district Pratapgarh in the year 1982. Accused Mishri Lal Pasi and Rajendra Prasad alias Barsati Pasi are residents of the same village. They were the neighbours of informant Chhotey Lal. Accused Mishri Lal is distantly related as uncle of accused Rajendra Prasad alias Barsati Pasi. It is alleged that on 6.12.1986 at about 12 O''clock in the night accused Mishri Lal and Rajendra Prasad alias Barsati Pasi trespassed into the house of Chhotey Lal by removing chappar and both of them committed rape on Smt. Suraj Kali, the daughter of informant, who was then aged about 16 years. On that night Ram Sunder, the nephew of informant Chhotey Lal and Smt. Suraj Kali were alone at their house. Informant Chhotey Lal along with his wife and other children had gone to attend marriage ceremony at village Atanpur, district Allahabad. On 9.12.1986 when informant Chhotey Lal returned to his house, his daughter Smt. Suraj Kali disclosed to him the entire incident of rape. She also told her father that she was threatened by the accused that if she would disclose the occurrence to anyone, they would kill her.

On 10.12.1986 Chhotey Lal, the informant along with his wife and daughter Suraj Kali reached in front of P.S. Raniganj, where he got report of occurrence scribed by a doctor and on the same day at 12.40 p.m. submitted the report at police station. On the basis of the aforesaid report an F.I.R., Exh. Ka-3, was drawn by Head Constable Shyam Bahadur Srivastava and a criminal case was registered u/s 376, I.P.C. against both the accused. The petticoat which Smt. Suraj Kali was wearing at that time on 10.12.1986 was taken into custody by the police as Smt. Suraj Kali had informed to police that she was wearing the same petti coat at the time of alleged incident.

Smt. Suraj Kali along with constable Iqbal Husain was sent to District Women Hospital, Pratapgarh, where she was medically examined by Dr. Renu Verma. Dr. Renu Verma prepared a medical report, Exh. Ka-1, Dr. Renu Verma did not find any apparent injury on the person of Smt. Suraj Kali. She found that the vagina easily admitted two fingers, hymen was torned and old healed hymeneal tags were present. Dr. Renu Verma took the vaginal discharge and sent it for pathological examination and Smt. Suraj Kali was referred for X-ray. After report of pathologist and the radiologist, Dr. Renu Verma prepared a supplementary report and she determined the age of the prosecutrix between 16-17 years and no sperm or G.C. was seen in her vaginal discharge report. Doctor reported that no definite opinion about the rape could be given.

The investigation was entrusted to Devi Prasad Dubey, Sub-Inspector who interrogated Smt. Suraj Kali P.W. 2, informant Chhotey Lal (P.W. 1), Ram Sunder (P.W. 3) and other witnesses. On 13.12.1986, he prepared a site plan after inspecting the place of occurrence. On the same day the Investigating Officer inspected ladder kept in the ''angan'' of informant Chhotey Lal''s house, regarding which it was told by the witnesses that the accused persons had managed to run away from the house by using the said ladder. A memo of that ladder was prepared. Accused were seen by witness Sarju Pasi in the light of torch. A memo of that torch was prepared. After completing the investigation the Investigating Officer submitted a charge-sheet under Sections 376 and 456, I.P.C. against the two accused named above.

The prosecution examined Chhotey Lal P.W. 1, Smt. Suraj Kali P.W. 2, Ram Sunder P.W. 3, Dr. Renu Verma P.W. 4, Head Constable Shyam Bahadur Srivastava P.W. 5, Sub-Inspector, Devi Prasad Dubey P.W. 6.

The accused pleaded not guilty. u/s 313, Cr. P.C. accused Rajendra Prasad alias Barsati Pasi stated that his field is adjacent to the house of informant Chhotey Lal and informant Chhotey Lal used to collect the bones of animals from his field. He was stopped, but accused Rajendra Prasad alias Barsati Pasi had threatened that he would not allow him to live there and due to this fear of being dislodged from the house, the informant has implicated falsely in this case. Accused Mishri Lal pleaded that he being distinct relation of accused Rajendra Prasad, has been falsely implicated.

After taking into consideration the entire prosecution evidence, the learned Additional District Judge found the accused guilty under Sections 376 and 457, I.P.C. and convicted and sentenced them as above. It is against this judgment, the present appeal has been preferred.

After a perusal of the evidence on record, I find that prosecution has examined three witnesses of fact, namely, Chhotey Lal P.W. 1, Smt. Suraj Kali P.W. 2 and Ram Sunder P.W. 3. Chhotey Lal P.W. 1 is not the eye-witness. He is informant. He has given the statement in the Court that on the night of the incident he along with his family members was out of station and her daughter, Smt. Suraj Kali and nephew Ram Sunder were present and when he came back after four days, he lodged the F.I.R. He has given statement that when he came back, her daughter Smt. Suraj Kali made a complaint to him that first Mishri Lal committed intercourse with her and after that Rajendra Prasad alias Barsati Pasi committed intercourse with her. Both committed intercourse by force and her daughter Smt. Suraj Kali and Ram Sunder had made hue and cry. On hearing the cry Sarju and Bengali, the two witnesses have arrived there.

I am of the opinion that the statement of Chhotey Lal is unnatural. No daughter will make such statement before her father. Further, I find that a perusal of the F.I.R. Exh. Ka-9 goes to show that name of the witnesses, Sarju and Bengali did not find place in the F.I.R. Therefore, this statement of Chhotey Lal P.W. 1 that Sarju and Bengali had arrived on hearing the cry is also not worth reliance.

The most important witness is Ram Sunder P.W. 3. According to the prosecution story, Ram Sunder was present in the house at the time of incident and he was caught hold by one of the accused and after taking pretext of going to pass urine, he came and made hue and cry. This witness Ram Sunder had not supported the prosecution version and he has been declared as hostile. He is the only eye-witness named in the F.I.R. and he does not support the prosecution version. He also explained how his statement was recorded by the Investigating Officer u/s 161, Cr. P.C. Therefore, the prosecution story is not corroborated by the most natural and independent witness.

The two witnesses who are said to have arrived on hearing the cry, namely, Sarju and Bengali have not been examined.

Now there remains only statement of Smt. Suraj Kali. She has stated that she recognised the accused in the light of torch in the hands of accused. This statement is not worth reliance. Nobody can recognise the accused in the light of torch which will be in the hands of accused. She also further stated that she recognised them by hearing their voice. While the fact, according to the prosecution story, is that the accused are her neighbours. Prosecution does not know her age. She has made even quite unnatural statement by saying that at the time of incident one accused caught hold of her hands and another accused committed intercourse. She has given statement that the accused has cut her cheek and there was cut mark on her cheek, but at the time of medical examination no such mark has been noticed. She has given statement that her blouse was removed by the accused and it was torn. It is a strange that the petti-coat of the prosecutrix was handed cover to the police and not the torn blouse. She appears to be a deserted woman, who has given most unnatural statement. She has not produced the torn blouse. She has given a false statement about a cheek cut. Her sole testimony has discorded by her cousin Ram Sunder. In view of such type of evidence, the accused person is entitled for benefit of doubt and the charge u/s 376, I.P.C. cannot be taken to be proved beyond all shadow of doubt.

In view of the above, the appeal is allowed. The impugned judgment and order dated 22.8.1989 passed by I Vth Additional Sessions Judges, Pratapgarh in Sessions Trial No. 146 of 1987 convicting and sentencing accused Mishri Lal u/s 376 is set aside. Accused, Mishri Lal is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. The appeal filed by Rajendra Prasad alias Barsati Pasi stands abated.

Let a copy of this judgment be sent to the concerned court along with record of the lower court for compliance.