Dismissed

State of U.P. v. Binnami

Allahabad HC13 Sept 2023GOVA/823/2018

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against an acquittal in a rape case involving a minor. Upholding the trial court's view, the High Court held that the victim's version was unreliable due to substantial inconsistencies across her initial report, medical statement, and deposition, compounded by a lack of medical corroboration and evidence of a financial dispute.

What did the court decide?

The appeal filed by the State is dismissed and the judgment of acquittal is upheld.

State of U.P. Vs Binnami — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:177469-DB

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Court No. - 46

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Case :- GOVERNMENT APPEAL No. - 823 of 2018

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Appellant :- State of U.P. Respondent :- Binnami Counsel for Appellant :- G.A. Counsel for Respondent :- Ashwini Kumar Awasthi,Sushil Kumar Pandey

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

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This appeal is by State challenging the judgment of acquittal dated 4.9.2018, passed by 8^th Additional District & Sessions Judge/Special Judge (POCSO Act), Bulandshahar, in Special Criminal Case No.32 of 2014 (State of U.P. Vs. Binnami), arising out of Case Crime No.435 of 2013, under Section 376 IPC & Section 4 POCSO Act, Police Station Kotwali Nagar, District Bulandshahar.

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Records reveal that a written report was made by the victim (PW-1) through her uncle Tejpal stating that she is 14 years old and had gone in the afternoon alongwith her mother and grandfather in the Maize field. The informant/victim was weeding in the field, when the accused at about 4.00 pm, with a bad intent, caught hold of the victim and dragged her towards his field and attempted to undress her. The allegation further is that attempt to commit rape was made by the accused. On raising of alarm the mother and the grandfather of the victim came on which the accused fled. Request, consequently, was made to register a case for outraging the modesty of victim and misbehaving with her.

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(2)

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On the basis of such written report, first information report came to be lodged on the same day i.e. 28.6.2013, at 7.00 pm, in respect of the incident occurred at 4.00 pm on the same day. The distance between the police station and the place of occurrence is three kilometres.

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The investigation proceeded in the matter and statement under Section 164 Cr.P.C. of victim was recorded before the Magistrate. In her statement made before the Magistrate an improvement was made by the victim stating that she had gone to the agricultural field alongwith her mother and grandfather, and while working in the field she had sudden urge to ease herself and she came in the field of her uncle to attend the nature’s call. It is then that the accused came from behind and grabbed her. The accused forcibly took her and actually committed sexual assault. It is on raising of scream by her that the victim’s grandfather and mother, who were working in the nearby fields, arrived. She has further stated that before arrival of the family members, the accused fled from the spot. In her statement under Section 164 Cr.P.C. the victim also stated that mother and grandfather took the victim to the house of the accused but they were hurled abuses. The family members returned and thereafter victim’s uncle took her to police station for lodging the report.

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The victim has been medically examined on 28.6.2013 itself, wherein her statement has been recorded by the doctor, as per which she had gone to the fields at about 4.00 in the evening, and while she was returning alone, after attending the nature’s call, the accused dragged her and committed sexual assault on her. The mother of the victim came searching for the victim and on seeing the mother the accused fled. The doctor, who examined the victim, found no external or internal injury and the victim was otherwise going through

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(3)

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menses. In the medical reports, including the pathological report, no spermatozoa etc. has been found on the vaginal slides prepared of the victim. The Chief Medical Officer has determined the age of victim to be between 16-17 years. The clothes recovered from the victim were sent to forensic laboratory and on the Salwar of the victim patches of blood have been noticed. No semen etc. has, however, been found on the clothes. The clothes of victim recovered shows that part of the Kurta had been torn.

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The investigation ultimately concluded with submission of final report in the matter as occurrence of incident was not established. Direction was, however, issued for further investigation in the matter and ultimately a chargesheet came to be submitted against the accused under Section 376 IPC read with section 4 POCSO Act.

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The concerned court of sessions on committal of case framed charges against the accused under Section 376 IPC read with section 4 POCSO Act vide order dated 19.6.2014. The charges were read out to the accused, who denied his implication and demanded trial.

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The victim has supported the prosecution case during her deposition made as PW-1. She has stated that she went to Maize field alongwith her mother and grandfather for weeding etc. After sometime, she had gone to attend the nature’s call and the accused came from behind; physically lifted her to adjoining field; subjected her to sexual assault. The victim also alleged that her mouth had been gagged by the accused, and therefore, she could not raise any protest. Ultimately, when the victim could manage, she raised an alarm on which her mother and grandfather arrived and before their arrival the accused fled from the spot. PW-1 has stated that her

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(4)

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mother and grandfather saw the accused running from the spot. In the cross-examination the victim has been confronted with her previous statement made in the written report; statement under Section 161 Cr.P.C.; and the statement made under Section 164 Cr.P.C. to highlight improvements made by her. On being confronted with the previous statement where the assertion about the victim having gone to attend the nature’s call and on return the accused grabbed her was missing, the victim stated that she had disclosed such facts to the investigating officer and she cannot explain as to why such assertions were not recorded. In the further crossexamination the victim alleged that the accused attempted rape upon her. The victim has also been confronted with her previous statement and suggestion has been given that in fact the victim had not gone to attend the nature’s call but had gone voluntarily, and has later made a false accusation. The victim in the cross examination alleged that she fainted after the act of sexual assault and does not remember the time consumed in committing the offence. She also claims to have sustained injuries on her waist. As per the victim when her mother arrived she was partially conscious. A suggestion has also been given to the victim that her father owed Rs.11,075/- from the accused, for the supply of bricks, and only with an intent to avoid re-payment of such amount that a false case was lodged.

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PW-2 is the mother of the victim and has supported the prosecution case. She has alleged that her daughter (victim) informed her that she is going to attend the nature’s call and left. It was later on hearing her scream that she reached the spot alongwith her father-in-law and found that her daughter was semi-conscious and partially undressed. In the crossexamination PW-2 has disclosed that house of the accused is

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(5)

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at a distance of 200 paces from her house and there exists Abadi in between. She has alleged that when she visited the house of accused to raise a protest, there were number of persons present, who abused her. PW-2 has been confronted with the written report in which there was no allegation of any sexual assault. PW-2 has stated that such disclosure was made by the victim and she cannot explain as to why such assertion is not contained in the written report. PW-2 has also been confronted with the previous statement under Section 161 Cr.P.C., wherein she had alleged that she heard some noise from the adjoining field, and it appeared to be her daughter, and when she came on the spot she saw the accused attempting rape on her daughter. No explanation of the contrary versions made during the deposition has been furnished by the witness. The witness has also been confronted with her previous statement made to the Investigating Officer, as per which the victim was 18 years old. The witness has, however, denied the suggestion that Rs.11,075/- were due to the accused towards supply of bricks and on his demanding the amount a scuffle occurred on account of which the accused has been falsely implicated.

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PW-3 is Dr. Dinesh Kumar, who has conducted X-ray on the victim and has certified her age to be 16-17 years. In the cross examination, the witness has admitted that there could be variation of two years in determination of age. PW-4 is Dr. Anita, Senior Consultant of Women Hospital. She found no external or internal injuries on the victim. The hymen of victim was old torn and she was going through menses. She had prepared vaginal slides of victim for pathological report, in which no dead or alive sperms have been found. PW-5 is the Constable, who has proved the G.D. Entry, made in respect of the report lodged by the victim/informant. Dr.

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(6)

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Pritam Singh has appeared as PW-6 and has certified that no dead or alive sperms were found on the vaginal slide of the victim.

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PW-7 is the Investigating Officer, who has stated that the clothes provided by the victim had no stain, soil, semen etc. No injury was found on the victim either. He has stated that he found no signs of sexual assault or its attempt and submitted a final report in the matter. He has also stated that accused is a partner in the brick kiln and during investigation he found that some dispute had arisen between the parties in respect of payment of amount towards bricks purchased by victim’s father, and due to it a false case has been lodged. He also stated that he recorded the statement of various other persons including Sukhvir, Tikaram, Inder, Umesh, Tejpal, Manveer, Lokram, Deoki, Kiranpal, Ramji Pal, Veena Devi etc., who had not verified the allegation made by the victim.

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PW-8 is the Inspector Dalchand, who conducted further investigation in the matter and submitted a chargesheet under section 376 IPC read with Section 4 of the POCSO Act.

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The accused has been confronted with the material evidence led in trial for recording his statement under Section 313 Cr.P.C. As per the accused, a false complaint has been lodged by the victim on the prompting of her parents. In reply to the last question, the accused has stated that his father was running a brick kiln and he was engaged in the supply of bricks etc. The father of the victim had taken bricks and a sum of Rs.20,000/- was outstanding against him. He asserted that for recovering such amount he had scolded him, on account of which he has falsely been implicated.

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The defence has produced Ompal Singh as DW-1. This

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(7)

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witness has produced the relevant registers of the brick kiln in order to show that bricks were taken by Mool Chand, father of the victim, on 05.06.2012, 06.06.2012, 08.06.2012, 09.06.2012 and 19.06.2012 and on account of failure to pay such amount the accused has been falsely implicated. This witness was a clerk working at the brick kiln. In the cross examination, DW-1 has admitted that bricks were not supplied to the father of the victim in his presence, nor any grievance with regard to non-payment of bricks was raised before him.

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The trial court has examined the evidence on record and found that the prosecution has not been able to establish its case beyond reasonable doubt. For arriving at such a conclusion, the court below has observed that age of the victim has been found in the medical report to be 16-17 years and by allowing two years variation she could be treated as a ‘major’. The trial court has noticed the inconsistent version of victim, which contained improvements over what was originally asserted in the written report, vis-a-vis her statements made under Section 161 and 164 Cr.P.C., and in court, in order to conclude that the statement of victim is not trustworthy. Since medical evidence otherwise did not support the commissioning of offence, as such, the court below has acquitted the accused of the charges levelled against him.

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Learned State Counsel, during the course of argument, submitted that trial court has not correctly appreciated the evidence on record, inasmuch the consistent case of the victim about sexual assault on her has been disbelieved on minor contradictions. Learned Counsel further argues that there were bloodstains on the clothes of the victim and the testimony of mother of the victim also supported the prosecution case, and therefore, the prosecution has established its case beyond reasonable doubt. Submission is

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(8)

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that judgment of acquittal is liable to be set-aside.

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We have heard learned State Counsel in support of the appeal and also examined the records of the present appeal, as also the lower court records.

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Facts, as have been noticed above, are not in issue. The main issue, on which the trial court has acquitted the accused, is the inherent inconsistency in the version of the victim, which has made her testimony unreliable.

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Learned State Counsel has taken us through the contents of the written report; statement of victim under Section 161 and 164 of Cr.P.C., as also her deposition made before the court as PW-1, in order to submit that there are only minor contradictions in her testimony, and that her version otherwise is worthy of placing reliance.

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We have carefully examined the records and are not inclined to accept the contention made by learned State Counsel. The written report in the present case has been promptly made on 28.06.2013, at 7.00 pm, in respect of the incident, which occurred only three hours earlier at 4.00 pm. The written report merely alleged attempt on part of the accused to commit sexual assault and the allegations primarily are of outraging victim’s modesty. There is no allegation in the written report regarding any act of sexual assault upon her. The victim was medically examined on the same day and her statement recorded by the doctor tells a different story. In her disclosure made to the doctor the victim alleged that she was at the field alongwith her mother and grandfather, and while she returned after attending the nature’s call, the accused dragged her inside the field and committed sexual assault on her. The victim has then alleged

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(9)

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that when her mother came searching for her, the accused on seeing her mother, fled from the spot. The statement under Section 164 Cr.P.C. of the victim is admittedly at variance from the written report. In the statement under Section 164 Cr.P.C., the victim has stated that she had gone to the agricultural field and came to the field of her uncle to attend nature’s call. It was then that the accused came from behind; lifted her and; committed sexual assault. She also alleged that accused had gagged her mouth and only when she found an opportunity she screamed, whereafter her mother and grandfather arrived. There is also a version that mother and grandfather of victim took her to the house of the accused, where they were hurled abuses.

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As against the above versions, when the victim has appeared at the stage of trial, she has stated that at about 4.00 in the evening she had gone to the agricultural fields with her mother and grandfather, and as she had felt some stomach ache, she left to attend the nature’s call. The victim has alleged that as soon as she got a chance, when the accused removed his hands from her mouth, she screamed. In the cross examination, the victim has been confronted with her previous statement and the written report, in which there was no reference of victim going to attend the nature’s call. No explanation, in that regard, has been furnished. The victim has also been confronted with her statement under Section 161 Cr.P.C., wherein such allegation has not been disclosed to the Investigating Officer. In her cross examination, the victim has alleged that she fainted after the sexual assault and she does not remember how much time was spent in commissioning of offence. She has asserted that she was only partially conscious, when her mother arrived.

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The medical evidence on record clearly shows that there

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(10)

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were no internal or external injuries on the victim. The victim was going through menses. Though the victim has specifically alleged that she sustained injuries on her waist but no such injury is reflected in the medical report. The hymen of the victim otherwise was found old torn and healed. The vaginal smear prepared from the victim shows no sperms etc. on it. The doctor, who examined the victim, has opined that no definite opinion about rape can be given in the matter.

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The only other witness of incident is the mother of PW-1. She has admitted in her statement given to the Investigating Officer that she heard some noise coming from the field and it appeared to be the voice of victim and when she came at the spot alongwith her father-in-law, she saw the accused attempting rape upon her daughter. This version of the mother of victim is at complete variance from what has been disclosed by the victim herself. PW-2 has also denied that she gave any statement to the Investigating Officer about the age of the victim being 18 years.

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The first Investigating Officer has appeared as PW-7. He has stated that during investigation he found no proof of the commissioning of offence and had recorded statement of large number of persons, who all had denied occurrence of such an incident. Statement was also recorded of various persons, who were in the nearby agricultural fields.

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From the evidence led on record, we find that version of victim contains substantial improvements from what was her initial version made in the written report and the statement given to police under Section 161 Cr.P.C. The version of victim recorded by the doctor, at the time of medical examination, is also distinct. The manner in which offence has been committed is explained in different and contradictory manner

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(11)

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by the prosecution witnesses. There is otherwise no independent corroboration of such allegation by the medical evidence. The statement of accused under Section 313 Cr.P.C. and the testimony of DW-1 indicate that there was some financial dispute between the parties and the possibility of false implication, for such reasons, cannot entirely beyond doubt.

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From the discussions and deliberations made above, we find that the view taken by the court below for acquitting the accused is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the judgment of acquittal. We, therefore, decline to interfere in the present appeal filed by the State, and consequently, the appeal fails and is dismissed.

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Order Date :- 13.9.2023 Anil

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(Syed Aftab Husain Rizvi,J.) (Ashwani Kumar Mishra,J.)

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Digitally signed by :- ANIL KUMAR PATEL High Court of Judicature at Allahabad

State of U.P. v. Binnami

Case brief

What is this about?

What did the court decide?

State of U.P. v. Binnami

Case brief

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What did the court decide?

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