Allowed

Akhilesh Kumar v. State of U.P.

Allahabad HC6 Oct 2023CRLA/665/2003

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against a conviction for rape and atrocity. Finding the victim's testimony unreliable due to contradictions with medical evidence and lack of corroboration from missing eyewitnesses or independent witnesses, the court acquitted the appellant. The conviction and sentence were set aside, and bail bonds were discharged.

What did the court decide?

Judgment and order of conviction and sentence dated 10.2.2003 set aside; accused set free on bail; bail-bonds and sureties discharged.

Akhilesh Kumar Vs State of U.P. — Writ and Judicial Review | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:192777-DB

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Court No. - 46

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Case :- CRIMINAL APPEAL No. - 665 of 2003

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Appellant :- Akhilesh Kumar Respondent :- State of U.P. Counsel for Appellant :- Sushil Shukla 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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1. This criminal appeal has been filed against the judgment and order dated 10.2.2003, passed by Special Judge (SC/ST Act), Kanpur Dehat in Special Trial No.361 of 1995 (State vs. Akhilesh Kumar) under Sections 376, 452, 323 IPC read with Section 3 (2) (V) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, (herein after referred to as 'the Act, 1989'), Police Station-Shivrajpur, District-Kanpur Dehat, whereby the accused appellant-Akhilesh Kumar has been convicted and sentenced to seven years rigorous imprisonment along with fine of Rs.5,000/- under Section 376 IPC and on failure of deposit of fine to undergo additional imprisonment of one year R.I.; six months rigorous imprisonment under Section 323 IPC; two years of rigorous imprisonment along with fine of Rs.1,000/- under Section 452 IPC and on failure of deposit of fine to undergo additional imprisonment of three months R.I.; life imprisonment along with fine of Rs.5,000/- under Section 3 (2) (V) of the Act, 1989. All punishments are to run concurrently.

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2. Victim, in the present case, is the informant, who has made a Written Report (Ex.ka1) scribed by Shiv Kumar Dhanuk (not produced) as per which, she was weeding her field while her

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mother was digging potato at a distance of few fields when the accused came on the spot and inquired about her mother and cousin. Victim informed the accused that they are not here. The accused thereafter caught hold of the victim and took her inside a room constructed in the field and brutally assaulted her and thereafter subjected her to sexual assault. In this act, the shirt and vest of the accused were also torn. The incident occurred on 16.2.1992 at 5:15 in the evening and has been seen by Chhunna and Kailash, who happens to be the cousin of the informant. The Written Report has been proved by the informant (PW1). On the basis of such Written Report, Case Crime No.24 of 1992 was registered under Sections 376, 323, 452 IPC read with Section 3 (1) (XI) of the Act, 1989. The FIR itself was lodged on the date of incident itself at 9:40 at Police Station-Shivrajpur, Kanpur Dehat.

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3. The cloths including undergarments of the victim were recovered and are proved during trial as Ex.ka5. The victim was also examined at 11:40 a.m. on the next morning by Dr.Manju Bhatnagar (PW4), who found no mark of injury on the body of the victim. Her hymen was old torn and healed. In the opinion of the doctor, the victim was habituated to physical relations. The victim was referred to U.H.M. Hospital, Kanpur, for external examination of the victim and for conducting of X-ray etc. The medical report of PW4 has been duly exhibited as Ka-3. Supplementary report has also been drawn by the Medical Officer according to which the age of victim is about 17 years. Victim has also been examined at U.H.M. Hospital by the doctor at 1:30 p.m., who found following injuries on the victim:

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"(i) Abraded Contused Swelling (Bruise) on Lt side face on jaw dry reddish blue scabbed;

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(ii) Contused Swelling - 6.0 x 4.0 cm on outer part of Lt Arm extending

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downward to shoulder red in colour;

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(iii) Abrasion 0.5 x 0.5 cm on outer and back of Rt elbow joint."

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4. Investigation proceeded further with recording of statement of witnesses and ultimately a chargesheet came to be submitted against the accused-appellant on 16.5.1992. Cognizance was taken by the Magistrate and the case was committed to the Court of Sessions at Kanpur Dehat, where it got registered as Session Trial No.361 of 1995. The Court of Sessions charged the accusedappellant under Sections 376, 452, 323 IPC read with Section 3(2) (V) of SC/ST Act, 1989. The charges were explained to the accused in Hindi, who pleaded not guilty and claimed to be tried. Trial thus proceeded.

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5. PW1 is the victim, who has supported the prosecution case according to which she was in her field at about 5:15 in the evening while her mother was in another field situated at a distance digging potato. The accused came and inquired about her mother and cousin. Victim informed the accused that her mother is digging potato and cousin is not at the field. It is thereafter that the accused took the victim to the room situated in the agricultural field; physically assaulted her with fists and kicks and later sexually assaulted her. Cloths of the accused were also torned in the process. On hearing the screams of the victim, her cousin Kailash and Chhunna came on the spot and, thereafter the accused fled away. Kailash and Chhunna saw the accused fleeing from the place. It was thereafter that the mother of the victim arrived and the victim disclosed the entire incident to her. Mother of the victim took her to the house of the accused to raise a protest, but the father of the accused did not listen to her. It is thereafter that the report was got scribed by Shiv Kumar on which the victim made her signature. PW1 has proved the Document No.13, which is

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exhibited during trial as Ex.ka1. Victim has stated that she sustained injuries on her face, neck and breast. She has also stated that her undergarments were taken by the Investigating Officer and has proved various documents of prosecution which were exhibited in the court.

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6. During cross-examination, PW1 has denied the suggestion that there exists no room in the field where the incident is alleged to have occurred. She has later stated that after she arrived at the police station, her statement was taken and on the instructions of Investigating Officer, Shiv Kumar scribed the Written Report. PW1 has further denied the dacoity occurred at the house of Ram Sanehi s/o Hori Lal in which her cousin Suresh @ Nankau was implicated as an accused and the uncle of accused herein had given statement as a witness against the cousin of the victim.

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7. Victim has further stated that as she never had any physical relations earlier, therefore, she had suffered lot of pain and her private-parts were bleeding and swelling etc., also occurred. She has also stated that there was scratch marks on her face and breast. The victim has further stated that she suffered injuries on her thighs and buttocks while she was dragged by the accused and these injury-marks healed later. The victim has also stated that these injuries were shown by her to the doctor. She has also stated that on raising of alarm by the victim, various other persons including Kailash, Chunna, etc. had arrived at the place of occurrence. According to PW1, there was a room in her field where the incident occurred. She has denied the suggestion that at the time of incident, no room existed in the field.

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8. PW2 is the only other witness of fact, who happens to be the

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mother of PW1 and has supported the prosecution case. She has not claimed to have seen the incident and later took the victim to the father of the accused to raise a protest. She has specified that the incident occurred in Plot No.427, which had been purchased in the year 1992 by Diwari Lal (DW1). PW1 has stated that room in the field was constructed about 2-3 years prior to the incident. She has, however, claimed that field where the incident occurred belongs to her husband Kanhaiya Lal. She has further stated that at the time of incident, the victim was 11 years old. PW2 has denied the suggestion that no such incident actually occurred and it is only on account of implication of her son in a dacoity case that the accused has been falsely implicated.

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9. PW3 is Dr.R.B. Gautam, who examined the victim at 1:30 p.m. on 17.2.1992 and found following three injuries on the victim:

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"(i) Abraded Contused Swelling (Bruise) on Lt side face on jaw dry reddish blue scabbed;

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(ii) Contused Swelling - 6.0 x 4.0 cm on outer part of Lt Arm extending downward to shoulder red in colour;

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(iii) Abrasion 0.5 x 0.5 cm on outer and back of Rt elbow joint."

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As per the doctor, the injuries were simple in nature and could have been caused by a blunt object etc.

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10. PW4 is Dr.Manju Bhatnager, who had conducted internal examination of the victim and found no injuries on the privateparts of the victim. Hymen of the victim was found old torn and healed. She has opined that the victim was used to physical relations and, therefore, no definite opinion could be given with regard to rape on her.

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11. PW5 is S.I. Mathura Singh, who has conducted the investigation in the present case. He has found existence of room

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in the field.

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12. PW6 (Raghuvar Singh) was posted as Head Moharrir in the police station and as per him there were no external injuries on the victim when she came to the police station.

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13. PW7 is Dr.K.K. Jagatyani, Radiologist at District Hospital, Agra, who has opined the age of the victim to be 17 years.

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14. On the basis of incriminating material so produced during trial by the prosecution, statement of the accused was recorded under Section 313 Cr.P.C. and he has alleged that the witnesses have made false deposition and he has been implicated in the case on account of enmity.

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15. On behalf of defence, Diwari Lal s/o Fakkad has been produced as DW1 who asserted that Plot Nos.426 and 427 were purchased by him about 10-11 years from Chhanni Lal and Nandram. He has stated that there existed no room in Plot No.427 or 426 purchased by him. He has denied the suggestion that on the date of incident, the plot in question belonged to Kanhaiya Lal, father of the victim.

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16. Trial court, on the basis of evidence led in the matter, has found the testimony of two witnesses of fact, namely, PW1 and PW2 to be reliable and on the basis of their statements, coupled with the Medical Examination Report has come to the conclusion that the prosecution has successfully established the guilt of the accused-appellant beyond reasonable doubt. It is on the basis of such conclusion drawn by the court-below that the accusedappellant has been sentenced as per above.

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17. Shri Sushil Shukla, learned counsel for the appellant, submits

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that the accused-appellant has been falsely implicated in the present case on account of strained relationship between the parties as the cousin of the victim was implicated in a dacoity case wherein uncle of the accused-appellant was a witness. He has further argued that strained relationship between the parties is not in dispute and an imaginary incident of sexual assault has apparently been cooked up to compel the family of the appellant not to prosecute the cases initiated against the cousin of the victim. Learned counsel further submits that the two brothers of the victim, namely, Chhunna and Kailash, who allegedly had arrived at the place of incident have not been produced. No other independent witness was produced. Learned counsel for the appellant further argued that this was a day-time incident and farmers in the adjoining fields were expected to be present and the fact that no independent person came forward to testify or support the prosecution case clearly shows that in fact such an incident has not occurred. Lastly, it is urged that the medical evidence also does not support the case of prosecutrix.

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18. Shri Shukla also submitted that the testimony of PW1 is not reliable and she cannot be placed in the category of a sterling witness. Various embellishments and contradictions in the statement of PW1 have been pointed out, which shall be dealt with later.

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19. Ms.Archana Singh, learned counsel appearing for the prosecution, states that testimony of PW1 is wholly reliable and in view of the law settled that testimony of a victim of sexual assault is to be treated at par with the injured witness, the court-below has committed no error in relying upon her testimony to convict the accused.

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20. We have heard learned counsel for the parties and have perused the records including the trial court records as well as documents relating to investigation undertaken in the present case.

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21. The incident is alleged to have occurred at 5:15 in the evening on 16.2.1992 while the victim was weeding in her field. It is also the case of the prosecution that the accused-appellant came looking for the mother and cousin of the victim and on being informed that they are not available at the field, the accused took the victim to a room constructed in the agricultural field and physically assaulted the victim and also raped her.

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22. The prosecution has produced two witnesses of fact in support of its case; they are PW1 & PW2. PW1 is the victim herself while PW2 is her mother. PW2 has admitted in her testimony that she arrived at the place of incident after the accused had already left and, therefore, she has not seen the incident. Version of PW2 is based upon the disclosure made to her by PW1. The testimony of PW2 is relevant for the limited purposes that the victim was taken to the house of accused to raise the protest, but their grievance was not heard. In that view of the matter, we are left with the testimony of PW1 alone to prove the prosecution case.

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23. Before proceeding further, it would be relevant to notice that though the victim in the FIR has alleged that her two brothers, namely, Chhunna and Kailash have seen the incident and they also saw the accused fleeing from the place of occurrence, but they have not been produced. No explanation is furnished as to why these two witnesses have not been produced. The prosecution admits that there were other farmers working in the adjoining fields including Munshi Chamar, who was present along with 3-4

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other persons, but none of them have been produced. PW1 has clearly stated that the field of Munshi Chamar adjoins the plot and he had seen the victim being dragged by the accused inside the room and even Munshi Chamar came to the place of occurrence on hearing the alarm of the victim. There is, however, no explanation as to why Munshi Chamar has not been produced in evidence by the prosecution.

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24. Law is settled that testimony of victim of sexual assault is sufficient to prove the incident, if her testimony is found credible and reliable. For such solitary testimony to be acted upon by the courts, it would have to be seen as to whether the testimony of victim falls in the category of a sterling witness. In the facts of the case, we are required to examine as to whether PW1 can be treated as a sterling witness so as to rely upon her testimony alone to convict the accused?

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25. We have carefully examined the testimony of PW1, who has supported the prosecution case as per which she was taken inside the room by the accused and physically assaulted and later subjected to rape. The prosecution, in fact, relies upon the information furnished by PW1 in her Written Report scribed by Shiv Kumar. Shiv Kumar has, however, not produced. PW1, in her testimony, initially claimed that the Written Report was got scribed by her through Shiv Kumar and Shiv Kumar incorporated his signatures upon it and thereby proved Document No.13, which is marked as Ex.ka1. However, in the latter part of her testimony, PW1 has stated that when she arrived at the police station along with others, her statement was recorded and the Written Report was got scribed on the dictation of the Sub-Inspector.

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26. There is thus contradiction in the statement of PW1 as to who exactly was the author of the Written Report. The first version is that the report was prepared on the direction of the victim while the second version is that the report was prepared on the dictation of the Sub-Inspector.

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27. PW1 has stated that she was physically assaulted by the accused, who later subjected her to sexually assaulted. According to victim, she never had any physical relations earlier and since it was for the first time that physical relations were formed by the accused with her, she suffered pain and her private-parts bleeded profusely. There was also swelling in her private-parts. This part of the testimony of victim is not supported by the medical opinion given by PW4, who conducted the medical examination of the victim. The testimony of PW4 goes contrary to the version of the victim, in her deposition, inasmuch as the doctor has opined that the victim's hymen was old torn and healed. PW4 has further stated that the victim was habituated to physical relations and, therefore, no definite opinion about rape can be given about her. The testimony of PW4, therefore, clearly contradicts the victim on it i.e. the incident, (if any), being the first incident of physical relations by the victim and the consequential injuries being caused on her private-parts.

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28. PW1 has further stated that as she was dragged, she sustained injuries on her thighs and also on her buttocks. Though, the victim has been physically examined by two separate doctors, but none of them reported any such injuries either on the thighs of the victim or on her buttocks. The testimony of the victim that injuries on thighs and buttocks continued for long and healed much later is, therefore, contradicted by the testimony of PWs-3 & 4.

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29. The only corroboration of the version of the victim are the three simple injuries on the face, shoulders and right elbow joint. These are all injuries, which are simple in nature and as per the doctor could have been caused by hard and blunt object or on account of friction etc. These injuries at best suggests that there was some scuffle, but would not be sufficient to corroborate an incident of the kind as is being alleged by the prosecution.

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30. We have already observed that no plausible explanation has been furnished by the prosecution for not providing the two brothers of the victim or produce Munshi Chamar, who allegedly had seen the incident. The deposition of the victim on material aspects does not find corroboration from the medical evidence available on record. Though, PW1 claims that blood-stains had occurred on the maxi and undergarments, but there is no scientific or forensic report available on record to prove the existence of any such blood-stained cloths. The cot on which the victim was laid for the act of sexual assault has also not found to contain any bloodstains etc.

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31. Upon evaluation of the testimony of PW1 in the context of evidence available on record of this case, we are not inclined to place her in the category of a sterling witness. The prior enmity between the parties is otherwise clearly born out from the evidence on record and the possibility of allegations having been made to falsely implicate the accused-appellant cannot be ruled out. Since, we do not find corroboration of the version of prosecutrix on material aspects as such we do not feel it safe to place reliance upon the testimony of PW1 alone so as to hold the accusedappellant guilty of the offences attributed to him.

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32. Once we hold that the prosecution has not succeeding in proving the incident on the basis of solitary version of the prosecutrix, the conviction and sentence of accused-appellant cannot succeed under Section 452 IPC particularly when the alleged room in the field is not shown to be dwelling unit. So far as the allegation of offence under Section 3 (2) (V) of the Act, 1989, is concerned, we find that the incident itself is doubtful and the prosecution has not established existence of necessary ingredients to attract the offence under Section 3 (2) (V) of the Act, 1989. The accused-appellant is clearly entitled to benefit of doubt in the case.

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33. So far as the judgment of Sessions Court is concerned, the reasoning assigned therein cannot be approved by us since the testimony of PW1 has not been subjected to careful scrutiny in the light of evidence on record. The findings returned by the trial court that prosecution has established the guilt of accused beyond reasonable doubt is thus reversed.

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34. The appeal, accordingly, succeeds and is allowed . The judgment and order of conviction and sentence dated 10.2.2003 is set aside. The accused-Akhilesh Kumar is reported to be on bail, his bail-bonds and sureties stand discharged and he shall be set free, unless wanted in any other case subject to compliance of Section 437-A Cr.P.C.

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Order Date :- 6.10.2023 LN Tripathi

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Digitally signed by :- LALIT TRIPATHI High Court of Judicature at Allahabad

Akhilesh Kumar v. State of U.P.

Case brief

What is this about?

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Akhilesh Kumar v. State of U.P.

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