Babu S/O Dalpat Vs. State of U.P. - Court Judgment

Dharam Veer, J.

1. This appeal, preferred by the appellant Under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 04.12.1997 passed by the Sessions Judge, Nainital in Sessions Trial No. 161 of 1995, State of UP v. Babu and Ors., whereby learned Sessions Judge has convicted the appellant/accused Babu under Section 354 and 325 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo R.I. for six months under Section 354 IPC and R.I. for two years along with fine of Rs. 5000/- under Section 325 IPC and in case of default, he was directed to undergo three months' additional imprisonment. However, co-accused Ashok, Gyanchand and Ramesh Chand were acquitted of the charges levelled against them under Section 147 and 325/149 IPC. Appellant accused Babu was also acquitted of the charge levelled against him under Section 147 IPC. Another co-accused Dalpat died during the pendency of trial and the case against him was abated on 25.9.1997.

2. In brief, the prosecution case is that PW2 Jaipal Singh lodged a report Ex. Ka-1 with PS Rudrapur on 20.9.1994 at 9.20 pm with the averments that the he is a labourer. On 20.9.1994 at 12.30 pm, his daughter Km. Suman @ Chhoti had gone to forest on the bullockcart of accused appellant Babu for taking the grass. After seeing her alone, the accused appellant Babu forcibly took her daughter Km. Suman in the sugarcane by pressing her neck and tried to outrage her modesty. His daughter opposed the abovesaid action of the accused appellant and made a noise. On this the accused appellant told him that if she would narrate this incident after returning home, he would kill her as well as her family members. After this incident, his daughter somehow managed to reach home by concealing herself from the accused appellant and narrated the incident to him. When Babu came to Ghasmandi after sometime of the said incident, the complainant went to inquire from him about the said incident, then the accused appellant Babu along with Ashok, Gyanchand, Ramesh, Dalpat and other members of his family started beating the complainant with lathis and dandas. With the aforesaid averments the complainant Jaipal Singh (PW2) lodged an FIR Ex. Ka- 1 stating that he received serious injuries in the said incident and the bone above the elbow of his right hand got completely fractured and he got himself medically examined at Jawaharlal Nehru Hospital, Rudrapur and also enclosed the medical report along with the FIR.

3. On the basis of this report Ex. Ka-1, Head Moharrir Raveendrapal Singh prepared the chick FIR Ex. Ka-2, the genuineness of which was admitted by the defence counsel. He also made the necessary entries in the GD, copy of GD is Ex. Ka-3, the genuineness of which was admitted by the defence counsel. Investigation of this case was entrusted to SI Harendra Singh, The victim Km. Suman (PW1) was medically examined by the Medical Officer, Jawahar Lal Nehru Hospital, Rudrapur on 20.9.1994 at 9.05 pm, who also prepared the medical report Ex. Ka-5. Formal proof of this medical report was dispensed with by the defence counsel. Complainant Jaipal Singh (PW2) was also medically examined by the Medical Officer, Jawahar Lal Nehru Hospital, Rudrapur on 20.9.1994 at 5.15 pm, who also prepared the medical report Ex. Ka-6, formal proof of which was dispensed with by the defence Counsel. Thereafter supplementary report Ex. Ka-7 of PW2 Jaipal Singh was also prepared by the Medical Officer on 22.9.1994, formal proof of which was dispensed with by the defence counsel. During the course of investigation, the I.O. inspected the place of occurrence where appellant accused Babu and other co-accused (acquitted by the trial court) had beaten the complainant and prepared the site plan Ex. Ka-8. He also prepared the site plan Ex. Ka-9 of the place where the modesty of PW1 Km. Suman was outraged by appellant accused Babu. The genuineness of the both the site plans Ex. Ka-8 and Ka-9 has been admitted by the defence counsel. The I.O. during the course of investigation also recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka- 10 against the appellant accused and the co-accused (acquitted by the trial court). The genuineness of the chargesheet Ex. Ka- 10 was admitted by the defence counsel.

4. Learned Chief Judicial Magistrate, Nainital after giving the necessary copies of the documents to the appellant/accused and the co-accused (acquitted by the trial court) as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 17.4.1995.

5. On 3.7.1995, learned Sessions Judge, Nainital framed the charge against the appellant/accused Babu under Section 376/511 IPC. On the same day charges were also framed against the appellant accused and the co-accused (acquitted by the trial court) under Section 147 and Section 325 read with Section 149 IPC. The charges were read over and explained to each of the appellant/accused and the co-accused, who pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution has examined PW1 Km. Suman, the victim of the first incident, PW2 Jaipal Singh, the complainant and the victim of the second incident and PW3 Harbansh.

7. Thereafter, statements of the appellant/accused and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put them in question form, who denied the allegations made against them. However, they did not file any documentary or oral evidence in defence.

8. Two witnesses were examined by the court as court witnesses, viz., CW1 Dr. PS Kukreti and CW2 Dr. SC Pant.

9. After hearing learned Counsel for the parties and after appreciating the evidence available on record, the learned Sessions Judge, Nainital vide his judgment and order dated 4.12.1997 convicted and sentenced to the appellant/accused as discussed above. Against the aforesaid judgment and order dated 4.12.1997, the appellant/accused has preferred the present appeal.

10. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record.

11. Before further discussion, it is pertinent to mention the injuries found on the body of Km. Suman, who was medically examined on 20.9.1994 at 9.05 pm by the Medical Officer, Jawahar Lal Nehru Hospital, Rudrapur and medical report Ex. Ka-5 was prepared, the genuineness of which was admitted by the defence counsel and the same is reproduced as below:

Injury (1) 'Contusion size 1 cm x 0.5 cm over front of neck 1/2 cm below thyroid cartilage. Colour red.

Opinion : the above mentioned injury is simple in nature.

12. PW2 Jaipal Singh, the complainant was medically examined on 20.9.1994 at 5.15 pm by the Medical Officer, Jawahar Lal Nehru Hospital, Rudrapur and his medical report Ex. Ka-6, the genuineness of which was admitted by the defence counsel and the same is reproduced below:

Injuries noted (1) One contusion with swelling around middle portion of right upper arm (size 11.00 cm vert. X 8.00 cm trans.) over anterior and outer portion of right upper arm. Red in colour. Tenderness present.

Opinion : Injury No. (1) is caused by some hard and blunt object. Fresh in duration and kept under observation. Adv. X-ray right upper arm AP and Lat.

13. Thereafter supplementary report Ex. Ka-7 of PW2 Jaipal was also prepared by the Medical Officer, Jawahar Lal Nehru Hospital, Rudrapur on 22.9.1994, the genuineness of which was admitted by the defence counsel, which is reproduced below:

Advised : X-ray right upper arm AP and Lat. X-ray report given by Dr. PS Kuwarbi. X-ray report No. 102 Dt. 22.9.1994 '#fracture of lower third right humerus.'

Opinion : Injury No. (1) which was kept under observation is grievous in nature.

14. To further prove its case, the prosecution has examined PW1 Km. Suman, the victim of the first incident, who has stated that the appellant accused Babu was known to her and was resident of mohalla Adarsh Nagar, Rudrapur. On 20.9.1994 at about 8 am, she along with other ladies of same mohalla had gone on the bullockcart of Babu for cutting the grass in the forest of Matkota. At about 12.30 pm in the day, she asked Babu to help in lifting the grass. Then Babu caught her neck and taken her to sugarcane field and tried to outrage her modesty and tried to open her draw-string and her salwar (suit). She made noise, then Babu told her that if she would disclose this incident to anybody then he would kill her and her family members. Thereafter by concealing herself she run away towards her house through forest. She has reached her house at 3-3.15 pm by a Metador and narrated the incident to her parents. She has further stated that when Babu taken her in sugarcane field forcibly and at that time, other ladies were taking food at a distance of about 30-3 5 steps and she was alone at the place of occurrence. This witness was cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt about her statement. The evidence of this witness is reliable, believable and inspire a confidence.

15. PW2 Jaipal Singh, the complainant and the victim of second incident has reiterated the version written in the FIR Ex. Ka- 1 and proved the contents of the same. In the cross-examination, he has stated that in the grass market except the appellant accused and the co-accused (acquitted by the trial court), 2 to 4 other persons were also present and all the five accused beaten him with lathis and dandas and this marpit continued up to one minute.

16. PW3 Harbansh has stated that in the grass market all the five accused were beating Jaipal Singh (PW2) in which Jaipal Singh received the injuries. In the cross- examination, he has stated that in the abovesaid incident, the blood did not ooze out. The height of danda was like height of a person and Jaipal Singh was beaten by falling on earth. In the grass market except him, twenty other bullockcarts of grass were also there and all the owners of bullockcarts were present on the spot and the grass market is at about 400-500 steps from the house of PW2 Jaipal Singh.

17. Thereafter, statements of the appellant/accused and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put them in question form, who denied the allegations made against them. However, they did not file any documentary or oral evidence in defence.

18. Two witnesses were examined by the court as court witnesses, viz., CW1 Dr. PS Kukreti and CW2 Dr. SC Pant. CW1 Dr. PS Kukreti has proved the injury report of PW2 Jaipal Singh as Ex. Ka-6 and the supplementary report as Ex. Ka-7. In the cross-examination, he has stated that the injury could be caused to the injured Jaipal Singh by falling from some higher place like falling from bullockcart or Dunlop etc.

19. CW2 Dr. SC Pant who examined Km. Suman (PW1) has proved her medical report as Ex. Ka-5 and has further stated that the injury could be caused by pressing the neck and the said injury could be caused on 20.9.1994 at 12.30 pm.

20. Learned Counsel for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused Babu beyond reasonable doubt for the offence punishable under Section 354 IPC and the appellant accused has been convicted on the basis of sole testimony of PW1 Km. Suman.

21. I do not find any substance in the argument of the learned Counsel for the appellant/accused for the reason that PW1 Km. Suman the victim of the first incident, who has stated that the appellant accused Babu was known to her and was resident of mohalla Adarsh Nagar, Rudrapur. On 20.9.1994 at about 8 am, she along with other ladies of same mohalla had gone on the bullockcart of Babu for cutting the grass in the forest of Matkota. At about 12.30 pm in the day, she asked Babu to help in lifting the grass. Then Babu caught her neck and taken her to sugarcane field and tried to outrage her modesty and tried to open her draw-string and her salwar (suit). She made noise, then Babu told her that if she would disclose this incident to anybody then he would kill her and her family members. Thereafter by concealing herself she run away towards her house through forest. She has reached her house at 3-3.15 pm by a Metador and narrated the incident to her parents. She has further stated that when Babu taken her in sugarcane field forcibly and at that time, other ladies were taking food at a distance of about 30-35 steps and she was alone at the place of occurrence. This witness was cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. On the basis of her narration, her father PW2 Jaipal Singh lodged the FIR Ex. Ka- 1 on the same day at 9.20 pm. The evidence of this witness is reliable, believable and inspire a confidence and further get corroborated from her medical report Ex. Ka-5 and also get corroborated from the statement of CW2 Dr. SC Pant, who has stated that the injury could be caused on 20.9.1994 at 12.30 pm by pressing her neck.

22. Reliance has been placed on the judgment delivered by the Hon'ble Apex Court in the case of Chittar Lal v. State of Rajasthan reported in : (2003) 6 SCC 397 in which it has been held that conviction can be based on sole evidence of a witness if it inspires confidence. Para 7 of the judgment is essential to mention here which is quoted as below:

Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan v. State of Rajasthan mere non-mention of the name of an eyewitness does not render the prosecution version fragile. The information was not lodged by an eyewitness. Mental condition of a person whose father has lost his life inevitably gets disturbed. Explanation offered by witnesses for non-mention of PW 3's name is plausible. Additionally, it is to be noted that in the present case the statement of PW 3 was recorded on the same day of incident, immediately after the investigation process was set into motion. Therefore, the plea that PW 3's testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness, PW 3's testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alalah. R. The Privy Council focused on the difference between English law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of the Evidence Act. The view has been echoed in Vadivelu Thevar v. State of Madras, Guli Chand v. State of Rajasthan, Vahula Bhushan v. State of T.N., Jagdish Prasad v. State of M. P. and Kartik Malhar v. State of Bihar.

23. My view further stands fortified with another judgment of Hon'ble Apex Court in the case of Mahendra Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 583 in which in para 11, it has been held as under:

11. It is now a well-settled principle of law that conviction can be based on the basis of the testimony of a sole eyewitness.

24. Learned Counsel for the accused appellant further argued that on the basis of the evidence discussed above, the offence under Section 325 IPC is not proved against the appellant accused Babu beyond reasonable doubt and the other co-accused have been acquitted of the same charge on the basis of same set of evidence. (Co-accused Dalapat died during the pendency of trial and hence case against him was abated as mentioned supra). Hence, appellant is also entitled for benefit of doubt. I find substance in the argument of learned Counsel for the appellant for the following reason:

(i) That as per the statement of the complainant PW2 Jaipal Singh, the said incident was said to be happened at 4.45 pm in the evening on 20.9.1994 in which five persons i.e. appellant accused Babu and other co-accused (acquitted by the trial court) beaten him with lathis and dandas. But only one contusion has been found in the medical report Ex. Ka-6, which creates doubt about the prosecution story and the story seems to be improbable. When five persons were beating him and only one contusion was found, it creates reasonable doubt about the manner of the incident claimed by the prosecution. Hence, up to this extent, the statement of PW2 Jaipal Singh is doubtful and does not inspire a confidence.

(ii) That PW3 Harbansh who was examined by the prosecution as an eyewitness was not named by the PW2 in the FIR Ex. Ka- 1. Hence, his presence was also doubtful on the place of occurrence. He has further stated in his cross- examination that no blood oozed out from the body of PW2 Jaipal Singh though he was beaten by the five persons by falling on the earth by the danda. This story seems to be improbable and his presence is also doubtful on the place of occurrence. He has also stated that about the said incident the I.O. did not record his statement during the course of investigation, which also creates doubt about his presence on the place of occurrence. Therefore, the statement of PW3 Harbansh is not reliable, believable and does not inspire a confidence.

(iii) That on the same set of evidence, co-accused Ashok, Gyanchand and Ramesh Chand have been acquitted of the charges levelled against them and, therefore, the appellant is also entitled for benefit of doubt.

25. My view is further fortified by the verdict of Hon'ble Apex Court in the case of 'Deepak Rajak v. State of West Bengal' reported in 2007 AIR SCW 5740. Paras-5 & 6 of this judgment are essential to mention here, which are reproduced hereunder:

5. The position in law as to what happens in case of acquittal of similarly placed co- accused on the same set of facts and on similar accusations has been considered by this Court in several cases.

6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the benefit of acquittal in the case of co-accused on similar accusations can be extended.

26. Thus, from the aforesaid discussion of the evidence and in view of the facts and circumstances of the case, the prosecution has failed to prove its case beyond reasonable doubt against the appellant/accused Babu for the offence punishable under Section 325 IPC. As such, the impugned judgment and order of trial court is not justified and correct to this extent and the appellant is liable to be acquitted of charge punishable under Section 325 IPC.

27. In the result, the appeal is partly allowed. The conviction of the appellant Babu under Section 354 IPC is hereby upheld and the sentence awarded to him to undergo RI for six months is also affirmed. However, conviction of the appellant Babu for the offence punishable under Section 325 is quashed and sentence of two years; RI along with fine of Rs. 5000/- is hereby set aside. The judgment and order 04.12.1997 passed by the Sessions Judge, Nainital in Sessions Trial No. 161 of 1995, State of UP v. Babu and Ors. is set aside to the extent indicated above. The appellant Babu is in jail. He shall serve out the sentence of six months' RI awarded under Section 354 IPC. However, the period in which the appellant was in jail during the period of trial and during the period of appeal shall be adjusted after verifying the same from the records.

28. A copy of this judgment and order be sent to trial court for its compliance. Let the trial court record be sent back.