(State v. Praveen Kumar and another), under Sections 376, 506, 511 IPC
Case Details
Court No. - 49 Case :- GOVERNMENT APPEAL No. -40 of 2021 Appellant :- State of U.P. Respondent :- Praveen Kumar Counsel for Appellant :- G.A. Hon'ble Suneet Kumar,J. Hon'ble Vikram D. Chauhan,J. 1. Heard learned A.G.A. appearing for the State and perused the lower court record with the assistance of the learned A.G.A. 2. The instant appeal has been filed against the judgment and order dated 29 October 2020, passed by Additional District & Sessions Judge/POCSO Act, Court No.03, Bulandshahr, in Sessions Trial No. 146 of 1998 (State vs. Praveen Kumar and another), under Sections 376, 506, 511 IPC, acquitting the accused respondent. 3. As per the prosecution case, it is alleged that at 06:00 P.M. in the evening, the victim aged about 11 years went to feed the animals; the accused-respondents taking advantage committed the offence of rape. At the relevant moment, brother of the victim namely, Rupesh, reached the spot and started screaming. On hearing the scream, other persons also reached at the place of occurence. The accused escaped threatening the victim and her brother with dire consequences. After investigation, the police report (charge-sheet) came to be filed against the accused- respondents under Section 376, 511, 506 I.P.C. The accused-respondents were summoned to stand trial under Section 376(2)(g), 506 I.P.C. The accused denied the allegation and demanded trial. 4. The prosecution to prove the charge examined six witnesses P.W.- 1 (Victim), P.W.-2 Rajendra Kumar (complainant), P.W.-3 (Rupesh Kumar), P.W.-4 (Dr. Sudha Rani) and the others witnesses are formal police officers, they proved the documentary evidence. 5. The accused-respondents on being confronted with the prosecution evidence and incriminating circumstances, in their statements under Section 313 Cr.P.C. denied the allegation and stated that they have been falsely implicated in the present case. In defence, D.W.-1, Avatar Singh
Legal Reasoning
was examined. The Trial Court after examining the prosecution evidence and incriminating circumstances was of the opinion that the prosecution failed to prove the charge against all the accused-respondents was beyond reasonable doubt. Accordingly, accused-respondents came to be acquitted, hence, the instant appeal. 6. Victim, P.W.-1 and her brother (Rupesh Kumar), P.W.-3 claimed to be eye-witness. P.W.-1 deposed that the accused-respondent apprehended her, second accused (Vipin) gaged her mouth with his hand and the first respondent, Praveen Kumar, committed the offence. At that moment, P.W.2, brother of the victim, reached the spot of incident and started screaming. The accused-respondents climbed over the wall and escaped from the place of the incident. She further stated that the entire incident happened within 5 to 7 minutes. P.W.-3 claims to be an eye-witness, deposed that at about 06:00 P.M. in the evening, the victim had gone to feed the animals and at that moment, no other persons was present at the house; the accused-respondents taking advantage committed the offence. 7. As per statement of the victim, she did not scream which is improbable. The Trial Court further noted that there is serious contradiction with regard to the site of the incident, the victim deposed that the premises is surrounded by two feet wall, whereas, in the site plan, the boundary wall is approximately 7 feet. The statement of the victim that assailants escaped by jumping the wall becomes improbable, having regard to the height of the wall as shown in the site plan. That apart, there is serious contradiction with regard to the door of the campus and that of the room. P.W.-1 further submitted that after the incident, her father, P.W.- 2, had gone to the house of the assailants and also convened the Panchyat outside their house. P.W.2 in contradiction stated that the report was prepared and transcribed at the Police Station. The report was not written at the house as some of the villagers suggested to settle the matter with the family of the accused. He further stated that no Panchyat was convened but stated that 2 to 4 persons had visited the house. 8. There is serious contradiction in the statement of all the three witnesses of fact. It is further noted that P.W.-1 stated that after the incident, there was stains of blood on her clothes. She further stated that clothes were not handed over to the police officer, whereas, father of the victim in his statement stated that there was no blood stains on the clothes of the victim. The prosecution did not produce the clothes of the victim, nor, her clothes were sent for examination. The statement under Section 164 Cr.P.C. was not recorded. The statement of the victim recorded under Section 161 Cr.P.C. and her testimony before the Court is contradictory. In her statement before the Police, she has stated that the accused- respondents attempted to commit the offence, whereas, in her testimony, she stated that offence was committed by the accused-respondents. 9. Learned A.G.A. submits that the Trial Court committed manifest error in not relying on the testimony of the victim. The victim narrated the incident and identified the accused-respondents. Further, her brother had also reached the spot and on his screaming, all the accused-respondents escaped from the premises. 10. We are constraint to accept the submission advanced by learned counsel for the State. The conviction can rest on the sole testimony of the prosecutrix if the same is trustworthy, crediable and reliable then no further corroboration is required. 11. In the given circumstances, there is serious contradiction in the testimony of the victim. The spot of incident as deposed by the prosecutrix and the site plan do not match, height of the boundary wall of the premises is in stark contradiction as per the site plan. Further, there is contradiction between in statement of the victim and her father with regard to the blood stained clothes of the victim. The statement of the victim in the circumstances do not appear to be crediable and reliable. As per the testimony of the father, after the alleged incident, he had visited the house of the assailants, which is an improbable human conduct. That apart, there is contradiction as to whether the Panchyat was convened. 12. Prosecution failed to prove the circumstances and the evidence beyond doubt so as to connect and link the accused-respondents in the commission of the offence. 13. Having due regard to the prosecution evidence and circumstances, we are unable to persuade ourselves to take an opinion different from that taken by the trial court. Accordingly, the leave to appeal application stands rejected. 14. In consequence the government appeal is dismissed. Order Date :- 17.02.2022 Sachin (Vikram D. Chauhan,J.) (Suneet Kumar,J.) Digitally signed by SACHIN TIWARI Date: 2022.02.23 13:31:22 IST Reason: Location: High Court of Judicature at Allahabad