Allowed

Madan Yadav v. State of U.P.

Allahabad HC3 Oct 2023CRLA/4477/2002

Case brief

AI extract

What is this about?

The High Court allowed an appeal by an accused-appellant convicted for rape attempt and offences under the SC/ST (Prevention of Atrocities) Act. The court acquitted the appellant due to fundamental contradictions in witness testimony, the absence of medical evidence from the minor victim, unexplained injuries to the accused, and failure to prove motive under the SC/ST Act beyond reasonable doubt.

What did the court decide?

Criminal appeal allowed; accused released on bail; bail bonds discharged; personal bond with sureties to be filed within four weeks.

Madan Yadav Vs State of U.P. — Allahabad HC (2023) — LawSathi Research

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Neutral Citation No. - 2023:AHC:189066-DB

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Court No. - 46

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Case :- CRIMINAL APPEAL No. - 4477 of 2002

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Appellant :- Madan Yadav Respondent :- State of U.P. Counsel for Appellant :- A.P. Srivastava Counsel for Respondent :- Govt. Advocate

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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This criminal appeal, by the accused-appellant, Madan Yadav son of Bodar Yadav, has been filed against judgement and order dated 19.08.2002, passed by Special Judge (SC/ST Act), Varanasi in Session Trial No.1001 of 1998 (State Versus Madan Yadav) arising out of Case Crime No.187 of 1998 under Sections 511 read with Section 376 I.P.C., 3(1)(x) and 3(2)(v) of SC & ST (PA) Act, Police Station Ramnagar, District Varanasi (now Chandauli). The appellant has been convicted and sentenced to undergo five years rigorous imprisonment for the offence under Section 511 read with Section 376 I.P.C.; to undergo six months rigorous imprisonment for the offence under Section 3(1)(x) of SC & ST (PA) Act; and life imprisonment under Section 3(2)(v) of SC & ST (PA) Act. All the sentences were directed to run concurrently.

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The prosecution case proceeds on a written report of informant who happens to be mother of the victim (PW 1), as per which, she had gone to river Ganga, on 2.09.1998, at 2.00 p.m. along with her six years' old daughter (victim) for washing clothes, etc. Accused, who is a neighbour, taking advantage of the fact that the informant was engaged, took the victim to an isolated place and took off her

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undergarments with intent to commit sexual assault. On the victim's screams the informant along with Ajai Kumar and Daya Ram residents of Nai Basti, rushed to the place of occurrence and apprehended the accused while attempting to commit rape on her. The incident is of 2 p.m. and the accused has been brought to the police station by the informant. On the basis of written report, scribed by Ajai Kumar son of Daya Ram (PW 3), F.I.R. came to be lodged, at 2.40 p.m., on 02.09.1998, at Police Station Ramnagar, District Varanasi under Sections 376/511 I.P.C. and 3(1)(x) of SC/ST (PA) Act. The investigation proceeded in the matter and statement of witnesses was recorded. There is, however, no evidence of any medico-legal report of the victim and thus no corroboration with it is possible. Investigation ultimately concluded with submission of charge-sheet against the accusedappellant on 19.09.1998.

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The concerned Magistrate took cognizance on the charge-sheet, and committed the case to the court of Session where it got registered as Sessions Trial No. 1001 of 1998. The court framed charges against the accused on 05.01.1999 under Sections 376/511 I.P.C. and Section 3(1)(x) of SC/ST (PA) Act. The charges were later amended on 23.01.2002 under Sections 376/511 I.P.C. and Sections 3(1)(xi) and 3(2)(v) of SC/ST (PA) Act.

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During the course of trial the informant has appeared as PW 1 and has supported the prosecution case, as per which, the incident occurred, at about 2.00, in the afternoon, when she had gone to the river to wash the clothes. The victim had also gone with the informant. Witness was engaged in washing the clothes. The victim started playing with other girls. Ajai Kumar, Om Prakash and Manoj Kumar, etc. were also present as they too had come to

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wash the clothes. The girls playing with her daughter came to her and informed that accused Madan Yadav has taken the victim whose screams were heard. Leaving the clothes behind, she rushed along with Om Prakash and Ajai Kumar and found that the accused had taken off the clothes of the victim and was attempting to commit rape on her. The witness along with others apprehended the accused on the spot, and took him to the police station. The victim had also gone with PW 1 to the police station. PW 1 has also proved the written report which has been scribed, on her instructions, by Ajai Kumar.

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In the cross-examination, PW 1 has stated that the accused lives in the same locality of the village where the witness resides. She stated that she knew the accused for last two years. She has further stated that Sursati and Pappu, aged about eight years, were playing with the victim, and it was these girls who informed that the accused had taken the victim. She has specified the place of occurrence. She further stated that having taken off the undergarments of the victim, the accused made her sit on his male organ. The witness has denied the suggestion that the accused along with several others, including husband of PW 1, had consumed liquor, and on the account of rivalry between her husband and the accused, both of whom worked as exorcists (Ojha), the accused is falsely implicated. She has also denied the suggestion that her husband is in the same business from prior in point of time, but the accused was getting more work, on account of which, he was brutally assaulted, his golden chain and cash etc. were snatched from him. She has also denied the suggestion that because of excessive liquor offered to the accused, he had lost his balance.

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PW 2 is Om Prakash. He also has supported the prosecution case. He claims to have seen the accused, holding the victim, without any undergarments, and the victim was made to sit on the male organ of the accused. The accused was apprehended and brought to the police station. In his cross-examination, this witness has stated that he had gone to have bath in the river and by the time he reached there, Ajai Kumar already had his bath. PW2 along with Manoj Kumar took bath later. After about 20 minutes he heard screams of the victim. The place of occurrence was about 30-35 feet from the river. He claims to have known the accused since long.

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PW 3, Ajai Kumar also claims to be an eye-witness, according to whom, the informant was washing the clothes, and her daughter (victim) was playing along with other children on a height. Scream of the victim was heard, and when he arrived at the place of occurrence along with Om Prakash and PW 1, he found that PW 1 together with Om Prakash had held the accused. PW 1 informed PW 3 that the accused was forcing the minor victim to hold his male organ. PW 3 has proved the written report lodged by PW 1. He has also stated that while taking the accused to the police station, he had not assaulted him nor the accused was offered liquor and after he ceased to be in senses he was assaulted.

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PW 4 is Head Constable, Daya Shankar, who has proved the G.D. entry, chik report, etc. He has stated that apart from injuries on the accused, there are no other detail available of his physical condition. As per him, the members of public had physically assaulted the accused after he was held committing the offence. 8. The victim has been produced as PW 5, who has stated that no body took off her clothes., She recognized the accused. She

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later stated that her underwear was taken off by the accused, who made her sit on his thighs. PW 5 has clearly stated that when the accused took her, she was at home along with her mother. In her cross-examination, she stated that she disclosed what has been told to her by the advocate. The victim was then examined by the court, and she explained that whatever is being stated by her, is her own statement. She has, however, stated that when she was taken by the accused, she was at home as her brother was not well, and he was being treated by the doctor. Other family members were also sitting near her ailing brother.

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PW 6 is the Investigating Officer, Rajiv Narayan Mishra, who has stated that the mother of the victim informed him that the accused took off the underwear of the victim, and made the victim to hold his male organ. Ajai Kumar, Om Prakash and Manoj Kumar also supported the incident. He has stated that the site-plan has been prepared by him. He has further stated that the accused was admitted to the hospital and he does not know as to when the accused got discharged from the hospital. The Investigating Officer has found life threatening injuries caused to the accused, for which he was admitted in the hospital. He has admitted that the injuries were present on the body of the accused. He has also stated that the accused was later referred to SSPG Hospital. He has also expressed his unawareness about registration of F.I.R. in Case Crime No. 51 of 1998 under Sections 395/397 I.P.C., Police Station Ramnagar, District Varanasi. The Investigating Officer has admitted that he has not inspected the place from where the victim was taken by the accused.

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On the basis of evidence adduced by the prosecution, the statement of the accused has been recorded under Section 313

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Cr.P.C. He denied his involvement in the offence, and has stated that the father of the victim is exhorcist while he was a new person in the field, and on account of professional rivalry he has been falsely implicated. The father and mother of the victim called him; offered him liquor; whereafter he was physically assaulted, by tying him to a tree. His golden chain along with Rs.125/- was taken, in respect of which, he has lodged report from the jail. 11. The accused produced Bodar as DW 1, in the matter, who has stated that the accused was called from his house by the informant and her husband, and all of them later consumed liquor and when the accused was drunk, he was tied to a tree, and physically assaulted by the informant and her husband along with all the accomplices. The accused was later taken to the police station from where he was referred to hospital. It was only with intent to save them from the offence committed by them that a false and imaginary incident has been cooked up so as to implicate the accused. He has stated that the accused had sustained various injuries and he was bleeding from his mouth. The accused happens to be the son of DW 1.

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Bablu is also produced as DW 2, who has stated that the husband of the informant, Babu Lal, Mangala Prasad, Ajai, Manoj and Om Prakash were sitting under a mango tree and consuming liquor, whereafter the accused was physically assaulted and later he has been implicated in a false case.

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The defence has also produced certified copy of the F.I.R. registered as Case Crime No. 51 of 1998, under Sections 395/397 I.P.C., Police Station Ramnagar, District Varanasi, wherein the defence version is the allegation made in this F.I.R. The certified copy of the F.I.R. has been proved by the defence witnesses. An

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application was moved, on behalf of the accused, to summon the G.D. entry as well as the documents in respect of his medical examination report along with certified copy of the medico-legal report of the accused, as per which, he had sustained multiple injuries. The accused was found to have consumed liquor and was under intoxication. This application has, however, been rejected by the trial court.

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The court of Session, upon evaluation of the evidence on record, has ultimately convicted and sentenced the accused, as per above.

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Learned counsel for the appellant submits that the accusedappellant has been falsely implicated in the present case, and that the incident, as alleged, by the prosecution, never occurred, nor such incident has been proved beyond reasonable doubt. It is further submitted that the victim has not been medically examined, and the evidence on record clearly establishes that the accused had been called from his house; offered liquor; and when he got drunk, was tied to a tree and physically assaulted.

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Learned A.G.A., appearing for the State, on the other hand, submits that the testimony of prosecution witnesses are trustworthy, and the conviction of the accused-appellant requires no interference.

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We have heard Sri Raghuraj Singh Kushwaha, holding brief of Sri Abhay Kumar Kushwaha, learned counsel for the appellant, Mrs Archana Singh, learned A.G.A., appearing for the State, and perused the materials on record. The original records of court below has also been examined by us.

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At the outset, we may record that the specific prosecution case is of attempt to commit rape, on a six year old victim, by the

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accused, but there is nothing on record to show that the victim was ever got medically examined. There is no corroboration of the prosecution case by the medical evidence of the victim. There is absolutely no justification furnished by the prosecution, otherwise, as to why the victim was not got medically examined, particularly when she was accompanied by her mother (informant) to the police station for registration of the F.I.R.

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The testimony of the prosecution witnesses have been carefully analysed by us. PW 1 has clearly stated that she had gone to river for washing clothes along with the victim. As per PW 1, she was busy in washing the clothes, when the accused took her daughter to an isolated place while she was playing with other girls. PW 1 has also stated that she was informed about the accused having taken her daughter by other minor girls, playing together with her. This version of PW 1 is consistent and finds corroboration from the testimony of other prosecution witnesses of the fact, namely, Om Prakash and Ajai Kumar i.e. PW 2 and PW 3. These witnesses have also stated that they had gone to river to have bath where they heard screams of the minor victim and that is how the accused was apprehended by the informant with help of others. 20. What is, however, unusual is the testimony of the victim herself, who appeared as PW 5 during the trial. PW 5 has specifically stated that she was at home along with other family members since her brother was not well. She has stated that she was taken from her house by the accused. She has also stated that her mother i.e. PW 1 was also at home. The victim has supported the prosecution case about the accused having taken off her underwear and made her to sit on his male organ. She has stated that her mother came first while she was weeping, whereafter

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Manoj and Om Prakash came. In her cross-examination, the victim has categorically reiterated that when she was taken by the accused from her house, her brother was not well, and her mother, father, etc, were also present at home. The victim was sitting near her brother who was at the door of the house.

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We have analysed the prosecution evidence, carefully, and we find major contradictions in the testimony of the prosecution witnesses. The first and foremost aspect relates to the place from where the victim had been taken by the accused. There are two distinct and irreconcilable versions of prosecution witnesses of fact. The first set of prosecution witnesses i.e. PW 1, PW 2 and PW 3 state that the incident occurred near the river when the informant had gone to wash the clothes, whereas the victim herself states that she was at home along with her mother and brother, since her brother was not well and was being treated when she was taken by the accused. These two versions cannot co-exist. Either the first version is correct, as per which, the victim was playing with other minor girls near river Ganga, when she was abducted by the accused, who allegedly attempted to commit sexual assault, or the other eventuality could be that the victim was taken from her home. Both, however, cannot co-exist.

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It is in the context of above contradiction in the oral testimony of the witnesses that we find that there is no corroboration of the prosecution case by the medical evidence on record. There is absolutely no explanation as to why the victim was not got medically examined, especially when she had gone to the police station for registration of the F.I.R. No plausible explanation has been furnished, by any of the prosecution

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witnesses, for not getting the victim examined medically by the doctors.

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It is in this context that we have perused the material on record and we find that the accused has been severally beaten, and he had to be admitted in different hospitals. This fact is admitted to the Investigating Officer, Rajiv Narayan Mishra.

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The defence witnesses have clearly stated that the accused was called by the informant together with her husband and PW 2 and PW 3, on the pretext of offering liquor, and the accused was later tied to a tree, and was badly assaulted. It is also the defence version that the informant as well as her husband took away the gold chain of the accused along with other cash, etc. available with him. It is the case of the defence that the father of the victim and the accused both were competitors as they were involved in occult practices. The father of the victim was old while the accused was a new entrant in the field. Accused had generated more clientele, and that is why he has been physically assaulted, after offering him liquor, etc. Injuries, on the accused are not disputed to the Investigating Officer also. PW 3, in his testimony, has also stated that he came to the river at 12, on 02.09.1998. When he came to the river PW 2 was already there. He has stated that it was thereafter that he heard the scream and saw the accused being taken by the grand mother of the victim along with PW 1 and the father of the victim, and the son of the informant namely Jang Bahadur. PW 2, however, comes up with different version, as per which, when he arrived at the river, Ajai Kumar had already had bath and about 20 minutes later, he heard the scream of the victim. He arrived at the place of the occurrence and saw that the accused was apprehended. The informant was putting on underwear to the

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victim. Therefore, there is apparent inconsistency in the version of PW 2 and PW 3.

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We have perused the original record, which contains the version of the defence containing the General Diary along with certified copy of medico-legal report register, at page 153, dated 02.09.1998. As per it, the accused had consumed liquor, and was assaulted, resulting in five injuries in the nature of contusions sustained by him.

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Upon evaluation of the evidence led by the prosecution we find that the evidence does not inspire the confidence of the Court inasmuch as apparent inconsistency in the prosecution version is not explained nor it is explained as to why the victim was not medically examined. No reason is furnished for not getting the victim medically examined by the prosecution. The defence version also sounds probable, particularly in view of the testimonies of DW 1 and DW 2, which have not been seriously challenged by the prosecution. The prosecution witnesses, moreover, furnished no explanation with regard to the injuries caused to the accused and they have specifically stated that they never assaulted him. The existence of the injuries, on the accused, therefore, remains unexplained.

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So far as the offence under Sections 3(1)(x) and 3(2)(v) of SC & ST (PA) Act is concerned, we find that the prosecution version itself is not credible and reliable and moreover there are no specific allegation with regard to the offence having been committed on account of the victim belonging to Scheduled Caste. Neither the incident itself has been established beyond reasonable doubt nor occurrence of offence under Sections 3(1)(x) and 3(2)(v) of SC & ST (PA) Act has been proved inasmuch as none of the

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prosecution witnesses have alleged that the offence was committed only because she belonged to Scheduled Castes. Reliance, in that regard, has also been placed by learned counsel for the appellant, upon the judgement of Supreme Court in Patan Jamal Vali Versus The State of Andhra Pradesh, 2021 SC 231 and also a Division Bench decision of this Court in Criminal Appeal No.4083 of 2017 (Pintu Gupta Versus State of U.P.)

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Upon evaluation of evidence, led in the matter, by the parties, we find that the prosecution case is not convincing and the guilt of accused appellant is not established beyond reasonable doubt. For the reasons already discussed above, the accusedappellant is entitled to the benefit of doubt.

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The criminal appeal succeeds and is allowed. Accusedappellant Madan Yadav son of Bodar Yadav, is on bail, therefore, his bail bonds shall be discharged. He need not surrender. He shall file personal bond and surety bonds in compliance of Section 437A Cr.P.C. to the satisfaction of trial court within a period of four weeks.

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The office is directed to transmit the lower court record along with a copy of the judgement to the trial court which shall ensure the compliance.

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Order Date :- 3.10.2023 MN/-

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Digitally signed by :- MAHENDRA NATH High Court of Judicature at Allahabad

Madan Yadav v. State of U.P.

Case brief

What is this about?

What did the court decide?

Madan Yadav v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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