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MOTI LAL YADAV versus STATE OF U.P.

High Court of Judicature at Allahabad

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Moti Lal Yadav v. State Of U.P. - CRIMINAL APPEAL No. - 760 of 1982 [2007] RD-AH 16809 (24 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

(Court no. 43)

Criminal Appeal No. 760 of 1982

1. Moti Lal Yadav aged 51 years son of Panchdeo Yadav,

Resident of Bahoopur, P.S. Sarai Mamrej,

District Allahabad.

2. Bhuwar Yadav aged 49 years , son of Ganga Din,

Resident of Nasir Patti,

P.S. Sarai Mamraj,

District Allahabad . ...... Accused- Appellants.

Versus

State of U.P. ..... Respondent.

A n d

Criminal Appeal No. 841 of 1982

Kallar aged 55 years, son of Jai Karan,

Kotaon Mauza, Nasir Patti,

P.S. Sarai Mamrej,

District Allahabad . ...... Accused- Appellant.

State of U.P. ..... Respondent.

****

Hon'ble Barkat Ali Zaidi, J

1.The aforenoted three appellants were tried in S.T. No. 463 1980 for charges under Sections 451 , 376 and 323 I.P.C. and the VIIIth Addl. Sessions Judge, Allahabad by judgment and order dated 22.3.1982 found them guilty under Section 451 I.P.C. and sentenced appellant Moti Lal under Section 376 I.P.C. with two years rigorous imprisonment plus fine Rs. 200/-, in default, 3 months further imprisonment. He also found guilty appellant Moti Lal under Section 376 I.P.C. and sentenced him with 5 years rigorous imprisonment. Appellants Bhullar Yadav and Kallar were also found guilty under Section 323 I.P.C. and the Trial Sessions Judge released them on probation under Section 4 of U.P. First Offenders Probation Act, for both the offences.

2.That is how the two appeals, which have been consolidated for hearing and are being decided by one judgment.

3.According to prosecution version on 19.8.1977 at 7.30 O'clock in the evening in village Bahoopur, the afore noted three accused came to the house of informant Smt. Devi ,P.W.1, while her parents had gone to another village to ask about welfare of her in-laws and her younger sister was playing out side the house. It is alleged that accused Moti Lal pushed the prosecutrix down on the ground and had forcible sexual intercourse with her despite her resistance while accused Kallar caught the arms of the prosecutrix and co-accused Bhuwar Yadav gagged her by pressing his hand over her mouth. The prosecutrix shrieked, as and when she could, attracting, witnesses Ramjiyawan, Ram Dev and Sarjoo to the place of occurrence, who saw the accused Moti Lal in the actual act of rape, and also saw, that, they were holding the hand of the prosecutrix. It is alleged that on the evening of 24.8.1977, the parents of the prosecutrix and her husband P.W.2 Amrit Lal came to the village, to whom the prosecutrix narrated the entire story. A written report of the incident was prepared by the husband of the prosecutrix, Amrit Lal took the prosecutrix to the police station, the next morning on 25.8.1977 and lodged the first information report ( Ext. Ka-1) at 8.30 A.M. at police station Sarai Mamrej.

4.On the basis of the written report ( Ext. Ka- 1), the police registered the case against Moti Lal Yadav, Bhuwar Yadav and Kallar vide chick F.I.R. ( Ext. Ka-7) and referred the prosecutrix for medical examination to Duffrin Hospital, Allahabad.

5.The investigation of the case was assigned to P.W.4 S.O.Sri Sukhram Sonkar, who went to the spot , prepared site plan, Ext. Ka- 5 and recorded the statement of the prosecutrix and other witnesses under section 161 Cr.P.C.

6.The prosecutrix was examined at Duffrin Hospital Allahabad on 25.8.1977 at 5.50 P.M. by P.W-3 Dr. V. Nigam who vide Ext-K-2 found no injury whatsoever on the person of the prosecutrix. Hymen torn, vagina, admitting two fingers easily and that she was used to sexual intercourse, and that there was no evidence of recent rape. The doctor advised X-ray for determination of her age, according to the X-ray report (Ext-Ka-3) she was around 19 years of age.

7.The Investigating Officer after completion of investigation, submitted a charge sheet under section 376 I.P.C and 351 I.P.C against accused Motilal Yadav and under section 451 and 323 I.P.C. against the remaining two accused

8.Heard Sri Imran Ullah counsel for the appellants and Sri Surendra Singh II, Additional Government Advocate for the State.

9.It will be seen that there is only the solitary testimony of the prosecutrix(PW-1) about the fact of her being raped. The other three witnesses Ram Jiyawan, Ram Dev and Sarjoo, who have been named in the First Information Report as having come to the place of occurrence, after hearing the shrieks of the prosecutrix and who witnessed the incident, have not been examined. This is not to say that the court can not convict the accused only on the basis of the solitary testimony of the prosecutrix. We are conscious of the fact, that the single testimony of the prosecutrix is by itself sufficient for the conviction of the caused, but the testimony has to be dependable and reliable. No conviction can be made merely because the prosecution says so.

10.it has to be seen and assessed whether the testimony of the prosecutrix is in the circumstances, worth reliance and it is only, if implicit reliance could be placed on the testimony of the prosecutrix, that a conviction can be legitimately founded.

11.Besides the circumstances which shall be enumerated hereafter, there are so many rents and holes in the testimony of the prosecutrix that it becomes wholly unworthy of reliance. It is a little unusual that even before night fall the accused barged into the house and started committing rape, and even kept the door of the house open, completely unmindful of the fact, that there are adjacent houses from where people can come after hearing shrieks and cries of the prosecutrix. Even the prosecutrix was not gagged and she was allowed to cry and raise alarm so that the witnesses may come and see the occurrence., and yet no witness has come forward, to support the prosecution version, ultimately the prosecutrix (P.W-1) has conceded in the cross examination that what she states about rape having committed upon her, is at the behest of Pradhan Bhagwati Prasad because she was asked by the Pradhan to say so. She has also admitted the existence of election rivalry between the accused and Pradhan. It has also been admitted that there ensued some dispute between the accused and her parents regarding drainage of the water.

12.It has also to be noted that the prosecutrix had been married seven years prior to the occurrence and the medical examination did not reveal any injuries on her person.

13.It has further to be seen that there is unusual delay in lodging of the First Information report for which there is no sufficient justification. The incident took place on 19.8.1977 and the First Information Report was lodged six days thereafter on 25.8.1977, and the reason given for the same is that the parents of the prosecutrix had gone to the house of the in-law of the prosecutrix in village Jagua, P.S. Saraimamrej and returned on the night on 24.8.1977 along with her husband and then the First Information Report was lodged . It is in the evidence that the village Jagua is 16 Miles away from the village where the occurrence took place. Since the village is not far away information could have been sent about the occurrence and the reason given is manifestly fake and erroneous.

14.The consequence is that there is sufficient ground to conclude that the accused did not commit any such crime as alleged by the prosecutrix and after good 30 years, we now conclude that the appellants are not guilty and are entitled to acquittal.

15. How ludicrous is the delay and how unfortunate !

16. Appeals allowed. Accused- appellants are acquitted.

Dt. 24.10.2007

g.s./n.u.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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