In this criminal appeal against a rape conviction, the High Court, noting inconsistencies in medical evidence, lack of opining by the doctor on rape, and benefit of doubt already granted to co-accused, allowed the appeal and acquitted the appellant on benefit of doubt.
Judgment of the trial court set aside; appellant acquitted and placed on bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 66
Case :- CRIMINAL APPEAL No. - 1882 of 1982
Appellant :- Mahipal Respondent :- State of U.P. Counsel for Appellant :- T. Rathore,C.K.Jha,Janardan Prasad Tripathi,Kapil Rathore,S.S. Rathore,Vinay Kumar Singh Counsel for Respondent :- A.G.A
Hon'ble Samit Gopal,J.
1 . The present appeal under Section 374(2) Cr.P.C. has been filed by Mahipal against the judgment and order dated 26.07.1982 passed by the II Additional Sessions Judge, Aligarh in Sessions Trial No. 308 of 1981 whereby the appellant has been convicted and sentenced under Section 376 IPC for five years rigorous imprisonment.
2 . 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-A of the Indian Penal Code. She is thus referred to as ‘X’ in the judgment.
3 . The prosecution case as per oral report of the prosecutrix is that her husband is Mohar Singh resident of village Dalpatpur Nagariya Majra Auraini, P.S. Atrauli. On the day of the incident at about 04:00 pm she was alone in her house wherein Mahipal son of Shyam Lal Lodha of the same village, Radhey Shyam son of Jhargadi and Tilka son of Sardar Lodha came and stuffed her mouth with a cloth and threw her on the ground. First of all, Tilka stuffed her mouth and caught hold of her head and Mahipal caught hold of both her hands after which Radhey Shyam caught hold of her legs and committed rape upon her, then Radhey Shyam caught hold of her hands and Mahipal committed rape upon her and then Mahipal caught hold of her mouth and Tilaka committed rape upon her. All three persons committed
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rape upon her simultaneously. As soon as they left her, she raised a shout on which her jeth Ram Swarup and mother-in-law Biriya who were coming from orchard saw the accused going out from the house. On her shrieks and shout, many people of the village collected there who saw the three accused person going out from the house. She was alone in the house. Her husband had gone to Kasimpur and her jeth had gone to orchard and her mother-in-law and devar had gone to the field. Her report be lodged and action be taken.
4 . The said oral report was lodged as a First Information Report as Case Crime No. 214 of 1980, under Section 376 IPC, P.S. Atrauli, District Aligarh on 14.06.1980 at 05:30 pm against Radhey Shyam, Mahipal and Tilka. The same is Exb: Ka-1 to the records.
5 . Petticoat of the victim 'X' was taken into possession by the police on 15.06.1980 and the observation in the said recovery memo was noted that the same contains patches of semen on it. The same is Exb: Ka-6 to the records. Dhan Singh and Revti Singh are the alleged witnesses to the same.
6 . The victim 'X' was produced before the doctor on 14.06.1980 at 10:20 pm and her medical examination was done. The doctor conducting the medical examination noted as follows:-
“No mark of injury seen on face, neck, back, chest abdomen, both extremities.”
On local examination the doctor noted as follows:-
“No mark of injury seen on private part. P.V. hymen torn, old tear, vagina admits two finger easily.”
The doctor further advised that the vaginal smear as taken be sent to the pathological lab. X-ray was advised.
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7 . The genuineness of the said document was admitted by the accused and hence formal proof was dispensed with. The said medical examination report is Exb: Ka-2 to the records.
8 . The matter was investigated and a charge sheet no. 61 dated 27.06.1980 was filed against the appellant, Radhey Shyam and Tilka @ Tilak Singh under Section 376 IPC.
9 . Charge was framed against the three accused persons under Section 376 IPC vide order dated 23.04.1982 passed by the 2nd Additional Sessions Judge, Aligarh. The accused pleaded not guilty and claimed to be tried.
10 . Heard Sri Janardan Prasad Tripathi, learned counsel for the appellant and Sri Sanjay Kumar Singh, learned counsel for the State and perused the record.
11 . The prosecution before the trial court produced Hari Ram as PW-1, victim 'X' as PW-2 and Asharfi Lal as PW-3.
12 . The accused in their statements recorded under Section 313 Cr.P.C. denied their participation in the occurrence and stated that they have been falsely implicated due to party bandi and enmity in the village. It was stated that Mahipal had a tube-well from which Ram Swarup, the elder brother of the husband of the victim 'X' had irrigated his plots and as there were irrigation charges due against him and he demanded then the same was not paid and there were some hot talks between them and as such they have been falsely implicated in the present case. The accused Radhey Shyam is the first cousin of accused Mahipal who were a partner in the tube-well. The accused Tilka Singh was the cousin of accused Mahipal and Radhey Shyam. The father of three accused persons were real brothers. In defence, Kishan Lal was produced as DW-1.
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chachi/victim 'X' to take water. When he reached there he saw that accused Radhey had caught his chhoti chachi/victim 'X' and Mahipal was lying on her and Tilak Singh had stuffed a cloth in her mouth. He identifies the accused who were present in court. He states that on hearing his voice, all the three accused ran away from back side.
In his cross examination, he states that he lives separately from his chachi. At that time, his mother was present and grandmother was not present in the house. The orchard is situated at about 200-300 steps from the house. There is no well in the orchard. Water is kept in a clay pot in the orchard. He cannot say as to why he did not drink water there. He states that there was no water in his house and as such he went to the house of his chachi/victim ‘X’. As soon as, he entered the house, he saw the accused persons from the courtyard and the accused persons then ran away. He then went to the orchard to call his chacha. He was interrogated by the police. He states that he told the Investigating Officer that Tilak had caught hold of her hand of his chachi. He states that it is correct that Radhey Shyam had caught hold of her hand. He states that he has not been tutored. He is studying in class-3 and was studying at the time of incident. He is studying since the last 4-5 years in a school. He states that the medical examination of his chachi was done in which his father had also gone. He denies the suggestion that he has been tutored.
14 . Victim 'X' PW-2 reiterates the version as given orally by her to the police. She states that the First Information Report has been lodged. She states that her medical examination was done. She states that she was taken by the police constable for her medical examination. She states in her cross examination that she had gone with her jeth Ram Swarup for lodging of the report. They started to walk from village at 04:00 pm and reached the police station at 05:30 pm. She states that she knows that a report is lodged of the incident likewise. To a suggestion that the report was got lodged by her jeth and not by her, she denies. She states that her husband had gone to
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Kauriya Kasimpur on that day. She had told about the incident to all the people of the house. They live in separate house which has been partition. Her father-in-law and mother-in-law also live separately. In front of her house, Megh Singh Gadariya lives and Megh Singh resides with his sonin-law Kishan Lal who was also present at the house at the time of incident. The doors of the adjoining house are on the back side of her house. She states that she did not tell about the presence of Hari Ram PW1 at the place of occurrence in the FIR. She denies that she had introduced his presence on advise of persons. She was interrogated by the Investigating Officer at Atrauli. She states that she told the Investigating Officer about Hari Ram being present.
15 . Asharfi Lal PW-3 is the Investigating Officer of the case. He identifies the handwriting of Constable Ram Swarup Singh. He then prepared the site plan of the incident which is Exb: Ka- 4 to the records. He submitted charge sheet against the accused persons. He also collected the petticoat of the victim ‘X’ for which he prepared a recovery memo.
In his cross examination, he states that he had taken statement of victim 'X' on 15.06.1980 in the village. Petticoat has been taken into possession on 15.06.1980. He further stated that he did not send the petticoat to the chemical examiner. The petticoat was already washed. He arrested the accused on 15.06.1980 and then filed charge sheet.
16 . Kishan Lal DW-1 is the son-in-law of Megh Singh who is living in front of the house of victim 'X' in the village. He states that he was cultivating the field of his father-in-law who had no male child and had only two daughters and as such he was residing in village Nagariya Dalpatpur. His father-in-law was aged about 80 years and he was living with him. Sarwati was the wife of younger brother of Ram Swarup. He stated that about two years ago, he was present in his house from 12:00 noon to 04:00 pm, thereafter, from 04:00 pm till evening he did not go out. The house of Ram Swarup was visible the door from his house. He did not
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see the three named accused persons entering in the house of Ram Swarup on the day of the incident. After arrest of the said accused, he inquired from the Investigating Officer about the reason and was informed by him that a report has been lodged against them.
17 . The trial court after recording statements and examining it, came to the conclusion that in so far as the accused Radhey Shyam and Tilak are concerned, they are given benefit of doubt and hence acquitted them for the charges under Section 376 IPC by the same judgment and order which is impugned herein and the appellant Mahipal was held guilty for offence punishable under Section 376 IPC and was convicted and sentenced as stated above.
18 . Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is argued that the First Information Report and the statement of victim 'X' PW-2 gives specific role to three accused persons, namely, Mahipal, Radhey Shyam and Tilka @ Tilak Singh. Subsequently, Hari Ram PW-1 appears as an eye witness to the incident who states of the accused-appellant Mahipal being over the victim and the other accused persons caught hold of her, on the basis of which the other two co-accused persons have been extended the benefit of doubt and have been acquitted of the charges levelled against them in spite of the fact that the First Information Report and the statement of victim ‘X’ PW-2 gives identical role to all the three accused persons. It is argued that the appellant is also entitled to be extended the benefit of doubt as the finding of the trial court in so far as the other two acquitted co-accused persons are concerned, has become final and there is no appeal with regards to their acquittal by challenging the said finding.
19 . It is further argued that the victim 'X' was a major married lady. The medical evidence does not corroborate with the prosecution story. There is no opinion of the doctor with regards to the fact as to whether she was raped or not. It is argued that although the Investigating Officer had taken
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petticoat of victim 'X' in his possession and in the recovery memo he had specifically mentioned that it contains patches of semen on it but in his cross examination he states that he did not send the same to the chemical analyst for analysis. He further states that the same had been washed. It is argued that even on this ground there is no corroboration of the prosecution story. It is argued that the appellant is also entitled to the benefit of doubt as has been given to the two co-accused persons Radhey Shyam and Tilka @ Tilak Singh. The child witness Hari Ram PW-1 is a chance witness. Moreso, his presence at the place of occurrence was not stated by the victim ‘X’ earlier. It is only at a later stage he is stated to be an eye witness. The appeal deserves to be allowed and the appellant deserves to be acquitted.
20 . Per contra, learned counsel for the State opposed the arguments of learned counsel for the appellant and argued that the appellant is named in the First Information Report, in the statement of Hari Ram PW-1 and victim 'X' PW-2. There is an allegation of rape being committed upon victim ‘X’ by him, the same is consistent and as such the present appeal deserves to be dismissed.
21 . After having heard learned counsel for the parties and perusing the records, it is evident that the First Information Report has been lodged against three persons, namely, Mahipal, Radhey Shyam and Tilka @ Tilak Singh. After investigation, charge sheet was submitted against the said three persons and they were on similar footing during trial. In the trial, Hari Ram the nephew of victim 'X' was examined as PW-1 although he was not named in the First Information Report as an eye witness of the incident. In the statement of victim 'X' and the First Information Report, the appellant and two acquitted co-accused persons have been assigned identical roles. The trial court acquitted two co-accused persons namely Tilka @ Tilak Singh and Radhey Shyam by extending the benefit of doubt. The finding has become final as no appeal against the said acquittal has
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been preferred. The petticoat of the victim 'X' has not been sent to chemical analyst. The medical examination report does not support the prosecution case as there was no injury found on the body or in the private part of the victim ‘X’. There is no report of doctor with regards to victim 'X' being raped.
22 . Looking to the facts of the case, it is a fit case for extending the benefit of doubt to the accused appellant- Mahipal. This Court comes to the conclusion that the accused-appellant deserves to be extended the benefit of doubt. He is thus extended the benefit of doubt in the present case.
23 . The judgment and order dated 26.07.1982 passed by the II Additional Sessions Judge, Aligarh in Sessions Trial No. 308 of 1981, is hereby set aside. The present appeal is allowed .
24 . The appellant is acquitted of the charges levelled against him. The appellant is on bail. His bail bond is cancelled and sureties discharged.
25 . 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.
Order Date :- 22.09.2022 M. ARIF
(Samit Gopal,J.)
Digitally signed by MOHAMMAD ARIF Date: 2022.09.29 16:55:36 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the appellant deserves to be acquitted given the inconsistencies in medical evidence and corroboration.
Whether the benefit of doubt should be extended to the appellant consistent with the acquittal of co-accused persons.
Mahipal
State of U.P.
Samit Gopal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
