Allowed

Ram Bahadur and Ors. v. State of U.P.

Allahabad HC3 Aug 2022CRLA/14/1985

Case brief

AI extract

What is this about?

In this appeal against a conviction for kidnapping and rape, the court set aside the trial court's judgment and acquitted the appellants. The decision rested on the finding that the victim's testimony was inconsistent and suspect, failing to establish the prosecution case beyond reasonable doubt.

What did the court decide?

Appellants acquitted of charges; judgment and order dated 19.12.1984 set aside; appellants granted bail.

Ram Bahadur and Ors. Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 91

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Case :- CRIMINAL APPEAL No. - 14 of 1985

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Appellant :- Ram Bahadur And Ors. Respondent :- State of U.P. Counsel for Appellant :- Satya Prakash,Satendra Kumar Sharma Counsel for Respondent :- A.G.A.

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Hon'ble Samit Gopal,J.

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1 . The present appeal under Section 374(2) Cr.P.C. has been filed by Ram Bahadur and Ishwari Dayal against the judgment and order dated 19.12.1984 passed by IVth Additional Sessions Judge, Pilibhit in Sessions Trial No. 130 of 1984 (State of U.P. Vs. Ram Bahadur and others) whereby the appellant Ram Bahadur has been convicted and sentenced under Section 363 IPC for three years rigorous imprisonment and under Section 366 IPC for three years rigorous imprisonment whereas the appellant Ishwari Dayal has been convicted and sentenced under Section 363 IPC for three years rigorous imprisonment, under Section 366 IPC for three years rigorous imprisonment and under Section 376 IPC for seven years rigorous imprisonment. Further, accused Akbar Mistri is also convicted as that of accused Ishwari Dayal. The trial court has ordered the sentences to run concurrently.

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2 . By the same judgment and order, the accused Jaitram, Chhuttu and Bhagwat have been acquitted of the charges levelled against them under Sections 147, 363, 366 and 376 IPC. Further, the said three convicted accused have been acquitted of the charges levelled against them under Section 147 IPC.

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3 . The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and as per Section 228 of the Indian Penal Code. She is thus referred to as ‘X’ in the judgment.

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4 . The prosecution case as per the first informant Pyare Lal son of Baldev Prasad on the basis of an oral report lodged against Ram Bahadur, Chhottu, Bhagwat, Jaitram, Ishwari Dayal and Akbar Mistri is that in the night after having dinner, he went to his enclosure as a routine for sleeping where he lied down on the ground and near him on the cot, his daughter ‘X’ aged about 15 years was also sleeping. Lantern was hanging and was burning. At about 11:30 pm Ram Bahadur, Chhuttu, Bhagwat who was armed with SBBL gun, Jaitram, Ishwari Dayal and one more person of village Bilsara who was called as Akbar Mistri came to his house and entered inside and tried to pull his daughter. He raised hue and cry, on which, Ram Chandar, Ram Singh and Chhatar who were his neighbours came there with torch and lathi on which Bhagwat exhorted that if anyone tries to stop them then he will be murdered and they forcibly pulled his daughter which was seen by him and the witnesses in the light of the lantern and torch. Whereabouts of his daughter is not known. His report be lodged and action be taken.

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5 . On the basis of the said oral information, a First Information Report was lodged on 07.03.1984 at 06:30 am at Police Station Bilsanda, District Pilibhit as Case Crime No. 53 of 1984, under Sections 363, 366 IPC against the said six accused persons. The First Information Report is Exb: Ka-11 to the records.

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6 . The police took into possession the lantern and the torch who gave the same in the custody of persons on 07.03.1984. The recovery and the superdagi memo is Exb: Ka-4 to the records.

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7 . The victim ‘X’ was recovered on 10.03.1984 and was given in the custody of Pyare Lal vide custody memo dated 10.03.1984. The same is Exb: Ka-8 to the records.

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8 . The victim ‘X’ was produced for medical examination before Dr. P.K. Mehrotra on 08.03.1984 being brought by Constable Sri Krishna

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whereby the doctor did not find any mark of injury on her body. On internal examination and noted as follows:-

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“No mark of injury seen on private parts. Vagina admits two fingers tightly. Hymen torn. Internal organs were normal. Vaginal smear taken and send for microscopic examination in pathology department at District Hospital, Pilibhit. Patient send to radiology department for x-ray wrist and elbow joint for confirmation of her age.”

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She proved the medical report Exb: Ka-14 and according to supplementary medical report, the following was found:-

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“ No alive or dead spermatozoa seen in smear.”

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X-ray report plate No. 723 dated 09.03.1984 showed as under:-

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“Epiphysis around right elbow joint complete fused. Epiphysis lower end of radius and ulna not fused. The medical examination report is Exb: Ka- 14 to the records.”

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9 . Subsequently, the doctor gave her conclusion after x-ray examination and examination of the vaginal smear that no definite opinion can be given regarding rape and she was aged about 16 years of age vide her report dated 09.03.1984. The same is Exb: Ka-15 to the records.

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10 . The investigation concluded and a charge sheet no. 36 dated 21.03.1984 was filed against Ram Bahadur, Chhuttu, Bhagwat, Jaitram and Ishwari Dayal under Sections 147, 363, 366, 376 IPC. The same is Exb: Ka- 10 to the records.

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11 . Vide order dated 17.09.1984 passed by 4^th Additional Sessions Judge,, Pilibhit charges under Sections 147, 363, 366 IPC were framed against accused Ram Bahadur, Chuttu and Jaitram.

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Further, vide order dated 17.09.1984 passed by the 4^th Additional Sessions Judge, Pilibhit charges under Sections 148, 363, 366 IPC was framed against accused Bhagwat.

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Further, vide order dated 17.05.1984 charges under Sections 147, 363, 366 and 376 IPC were framed against Ishwari Dayal and Akbar Mistri.

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12 . All the accused denied the charges and pleaded not guilty and claimed to be tried. The trial thus proceeded which was concluded vide the impugned judgment and order dated 18.12.1984 passed by the 4^th Additional Sessions Judge, Pilibhit.

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13 . During trial, ‘X’ was produced and examined as PW-1, Ram Chandar the alleged eye witness who saw ‘X’ being taken away by the accused persons was examined as PW-2, Ram Singh who also stands a a witness as that of Ram Chandar was examined as PW-3, Chhatar also stands for the same as Ram Chandar and Ram Singh was examined as PW4, V.P. Gautam was examined as PW-5 who was the Investigating Officer in the present case, Dr. P.K. Mehrotra who medically examined the victim ‘X’ and gave her report and also gave a supplementary medical report was examined as PW-6.

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14 . The accused Ram Bahadur in his statement recorded under Section 313 Cr.P.C. stated that the police has challaned him as a false in collusion with the informant. Ishwari Dayal stated that he had gone to the house of his in-laws from where he has been falsely implicated in the present case. The accused did not lead any defence evidence.

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15 . Neither learned counsel for the appellants nor learned counsel for the State and even the records do not show of any appeal being filed by the co-accused Akbar Mistri.

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16 . Heard Sri Shailendra Singh and Sri Vijay Kumar Shukla, learned counsels for the appellants and Sri B.B. Upadhyay, learned counsel for the State and perused the record.

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17 . Learned counsel for the appellants argued that the first informant Pyare Lal could not be examined in court as he died during investigation.

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The said fact regarding his death has been stated by PW-5 the Investigating Officer of the case. It is further argued that the victim ‘X’ has totally changed the prosecution story in her cross examination.

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In the cross examination, she states that the First Information Report was lodged by mentioning wrong names of the accused whereas the actual persons involved in the matter were Doctor Ram Sumran, Ram Niwas and Ram Kisan. It is argued that the victim ‘X’ has stated of Doctor Ram Sumran being armed with gun at the time of alleged incident who had also while taking her away from the house, fired one shot to terrorise the persons present there so that he could get facilitated in the easy movement of the accused with the victim ‘X’. It is argued that the victim ‘X’ has further in her cross examination stated that her statement as has been shown to be recorded under Section 164 Cr.P.C. is not her actual version. The Investigating Officer had brought statement written on a paper which was copied in the court and she was made to sign on it. It is argued that no role whatsoever has been assigned to the appellants. As per the version of the victim ‘X’ she has stated in her cross examination and even she has not even named the appellants as an accused in the matter.

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18 . It is further argued that even the victim ‘X’ had moved an application supported by an affidavit before the concerned Magistrate and even before the higher court stating and disclosing the name of the actual accused persons. The said documents were marked as Exb: Kha-6/1 and Kha-6/2 to the records in which she has stated to have signed and identifies her signature on it. It is further argued that three witnesses who are the alleged eye witnesses of taking away the victim ‘X’ by the accused persons named in the First Information Report being Ram Chandar PW-2, Ram Singh PW-3 and Chhatar PW-4 have not supported the prosecution case and have been declared hostile by the trial court.

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19 . It is argued that as such the false implication of the appellants in the present case is evident from the material on record, the present appeal thus deserves to be allowed.

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20 . Per contra, learned counsel for the State while opposing the arguments of learned counsel for the appellants has argued that the appellants are named in the First Information Report and have been assigned the specific role therein. The victim ‘X’ has in her examinationin-chief also corroborated the prosecution version as stated in the First Information Report. She has stated of accused Akbar Mistri and Ishwari Dayal committing rape upon her and in so far as the other accused persons are concerned, she has assigned the role of kidnapping and abduction of her with the other two co-accused persons who have been also charged under the relevant sections.

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21 . It is argued that the prosecution case in so far as the examination-inchief of the victim ‘X’ is concerned, she corroborates the version of the First Information Report and as such the conviction of the appellants is just and proper. It is further argued that the Investigating Officer has also stated about the recovery of the victim and has stated of recording of her statement under Section 164 Cr.P.C. in the court which would leave no doubt about it and would go to show that the same was recorded in a proper manner. It is argued that the victim was a minor as per her age as disclosed in the First Information Report and even as per the opinion of the doctor as per the medical examination report. The age as mentioned in the First Information Report is 15 years and in the supplementary medical examination report is 16 years. It is argued that the prosecution has succeeded in improving its case beyond reasonable doubt and the appeal deserves to be dismissed.

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22 . PW-1 the victim ‘X’ has stated in her statement that the incident is of about 8-9 months back. She along with her father and mother were in her house in qasba Bilsanda. At about 11:30 pm, lantern was burning and

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hung from thatch. She was sleeping on the cot and her father was sleeping on the floor. Ram Bahadur, Akbar Mistri, Ishwari Dayal and three other persons came inside the house. They pulled her after which she and her father raised a shout, on which, Chhattar, Ram Chandar and Ram Singh with torch and lathi came there. The accused were seen by Ram Chandar, Chhattar and Ram Singh. The accused took her in a sugarcane field. They laid a blanket in the field. Ram Bahadur went bring food. Akbar and Ishwari Dayal remained there. The other three persons went away which she does not know about them. Akbar told her that she has to marry Ishwari Dayal on which she refused and then Akbar took out a knife and stated that if she does not marry Ishwari Dayal, she would be killed. Then Akbar broke string of her salwar and raped her forcibly. Then Ishwari Dayal also raped her. After the said occurrence, Ram Bahadur brought food, a dhoti, blouse and one petticoat in a carry bag. The accused consumed food and she was also forcibly made to eat it. After having food, Akbar took out her clothes and made her wear dhoti and petticoat and said that it is about to be morning, she should be taken in a vehicle to Station Beesalpur. Akbar Mistri said that they should take her with them and he was going to make arrangements for some money. Her clothes were taken by Akbar Mistri. Then they reached Maanpur Tiraha on the third day. Then they met Police Inspector and a constable who then inquired from them and arrested Ishwari Dayal and Ram Bahadur. They were then brought to Police Station Bilsanda. She was then sent to Womens Hospital, Pilibhit for medical examination and her statement was recorded in court. To her statement under Section 164 Cr.P.C. she stated that no statement was recorded on her dictation. A statement was written on the paper which was copied she was told there. There was no statement given by her. She was made to sign on the same. She identifies the signature.

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In her cross examination, she states that she has three sisters. The elder sister is named Maya and the younger is named Neeraj. The elder

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sister is aged about 22-23 years who is 2½ years elder and is married. She has studied in school upto Class 5^th . She states that her father is Sri Ram and her mother is Smt. Saraswati. Her father Sri Ram died around 4-5 years ago after which her mother is living with Pyare Lal (who is the first informant) since last one and half years.

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Further, in the cross examination with regards to her statement under Section 164 Cr.P.C. she states that the Investigating Officer had brought a written statement on a paper which was copied in the court and due to fear, she signed on the same. She with regards to the incident states that the persons who had kidnapped and abducted her were Doctor Ram Sumran who was armed with gun, Ram Niwas who was armed with sword and Ram Kisan who was armed with a lathi. All the three persons came to her house, Ram Sumran extended threat from the gun and fired a shot due to which no one came there. She also got terrified after which Ram Sumran instructed her to follow and then she went behind him. Ram Niwas threatened her and stated that he would cut her neck and throw her. Behind him Ram Kisan was coming with a lathi. Ram Sumran after coming from the house, made several fires. No persons was seen there neither could anyone gather courage to come out. She states that she was taken walking for hours and then they spread a blanket and made her to sit. No one met them on the way.

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23 . Pyare Lal the first informant and the accused did not come in front of each other. She was made to sit on the blanket after which she stated that she is thirsty and even hungry after which food was called for and she ate it and drank water. She was then laid down on the blanket, one person opened her salwar and other opened her muffler. She was wearing kurta. She was without her salvar and kept it near her head. She refused them. She told them not to do anything but the accused persons also laid down besides her. They were rubbing with her and also doing bad things. She was lying on the ground. She then expressed her desire to sleep. She

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further states that police did not challan Doctor Ram Sumran, Ram Niwas and Ram Kisan. The said persons had colluded with the police and as such no case was lodged against them. She gave an application to the concerned Magistrate against the said three persons and even an application and an affidavit before the higher Court in which she has stated that her report has not been lodged and the actual accused persons have not been made as an accused.

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24 . PW-5 V.P. Gautam the Investigating Officer of the case took up the investigation and concluded by filing charge sheet against the accused persons. He has stated that Pyare Lal the first informant of the case died during investigation.

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25 . Dr. P.K. Mehrotra who medically examined the victim ‘X’ and has prepared the medical examination report specifically opined that she was habitual to sexual intercourse and no opinion can be given regarding rape. She was opined to be aged about 16 years.

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26 . At this stage, it would be apt to mention that victim ‘X’ is the daughter of Shri Ram who had died and then her mother was living with Pyare Lal who is the first informant of the present case who states that the victim ‘X’ to be his daughter but as per records he is not the biological father of ‘X’.

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27 . The victim ‘X’ has in her examination-in-chief stated of her statement under Section 164 Cr.P.C. to be not by her dictation and her version. In the cross examination, she further states that the Investigating Officer had brought written statement on a paper which was copied in court and due to fear, she signed it. Further, in the cross examination, she gives up the prosecution story as stated in the FIR and in her examinationin-chief of the naming of six accused persons being instrumental and states of three persons being totally different set of persons involved in the matter.

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28 . The prosecution case thus does not remain consistent and the victim has herself changed the same in her cross examination in the trial court.

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29 . Looking to the said facts, the implication of the appellants, is thus suspect. They are thus entitled to the benefit of doubt which is being extended to them.

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30 . The judgment and order dated 19.12.1984 passed by IVth Additional Sessions Judge, Pilibhit in Sessions Trial No. 130 of 1984 (State of U.P. Vs. Ram Bahadur and others), is hereby set aside. The present appeal is allowed .

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31 . The appellants are acquitted of the charges levelled against them. The appellants are on bail. Their bail bonds are cancelled and sureties discharged.

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32 . Office is directed to transmit the lower court records along with the copy of this judgment to the trial court forthwith for its compliance and necessary action.

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Order Date :- 03.08.2022 M. ARIF

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(Samit Gopal,J.)

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Digitally signed by MOHAMMAD ARIF Date: 2022.08.10 18:07:26 IST Reason: Location: High Court of Judicature at Allahabad

Ram Bahadur and Ors. v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ram Bahadur and Ors. v. State of U.P.

Case brief

What is this about?

What did the court decide?

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