The Allahabad High Court acquitted a police constable convicted in 2018 for allegedly raping a 16-year-old girl.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad passed this order while hearing a Criminal Appeal filed by Ajit Singh Constable.
The criminal appeal is directed against the order dated 12.11.2018, passed by the Additional Sessions Judge-VIII, Fatehpur in Special Trial; whereby the accused-appellant has been convicted under sections 376 IPC read with Section 3 (ii) (v)/ 3 (i) (xii) SC/ST Act and Section 5/6 POCSO Act and consequently sentenced to rigorous life imprisonment along with fine of Rs 20,000 for the offence under Section 6 of POCSO Act and in default thereof, he has to further undergo 6 months additional simple imprisonment; rigorous life imprisonment along with fine of Rs 20,000 for the offence under Section 3 (ii) (v) SC/ST Act and in default thereof he has to further undergo 6 months additional simple imprisonment; and 5 years rigorous imprisonment along with fine of Rs 5000 for the offence under Section 3 (i) (xii) SC/ST Act and in default thereof, he has to further undergo two months additional simple imprisonment with an observation that all the sentences are to run concurrently.
As per the prosecution case, on September 9, 2015, a written report was given to the Police Station Malva, District Fatehpur by the first informant, namely, Kallu Kori stating that on 9th September, 2015, at about 4:30 a.m in the morning, the informant’s daughter aged about 16 years had gone behind the house to ease herself when accused Ajit Singh, constable posted in Police Station Kalyanpur, dragged his daughter to the field by gagging her mouth and raped her.
When the gagging eased, the victim raised an alarm. After hearing her shrieks, the informant’s wife rushed to the spot and the accused-appellant ran away to G.T. Road through paddy fields. At the same time, the first informant/complainant was also easing himself on the side of the road in front of Malva Police Station and when he asked the accused, he started running and the first informant/ complainant chased him. The accused-appellant was not able to run as his feet were covered with mud and the first informant held the neck of the accused-appellant at Itraura Mod, G.T. Road. The accused-appellant however escaped from the grip of the first informant/ complainant by sliding off his T-shirt and vest.
On the basis of the aforesaid written report a first information report was lodged on September 9, 2015 at 08.15 a.m, which was registered as Case under Section 376 IPC, Section 3 (ii) (v)/ 3 (i) (xii) of SC/ST Act and Section 3/4 POCSO Act.
The investigation proceeded thereafter and statement was recorded of the victim under Section 161 CrPC and after completing necessary formalities as provided under Chapter-XII CPC, chargesheet came to be submitted on 7th November, 2015 before the court concerned against the accused appellant under Section 376 IPC, Section 3 (ii) (v)/ 3 (i) (xii) of SC/ST Act and Section 3/4 POCSO Act on which the Magistrate concerned took cognizance and committed the case to Court of Sessions.
After recording of the prosecution evidence, the incriminating evidence was put to the accused-appellant for confronting him with the same under Section 313 CrPC.
In his statement recorded U/s 313 CrPC, the accused appellant denied his involvement in the commissioning of the offence under Section 376 IPC Sections 3 (ii) (v)/ 3 (i) (xii) S.C/S.T Act and also Sections 5/6 POCSO Act and also the charges levelled against him. In the said statement, the accused appellant has specifically stated before the trial court that since he always reprimanded the first informant and that is why he has been implicated in this case to teach a lesson to him, he is otherwise innocent.
The trial court after relying upon the evidence adduced by the prosecution and recording its finding that the incident happened around 4:30 a.m in the morning and after the incident, a quick first information report was registered within about quarter to four hours in the morning of the incident as evident from the evidence of the first informant and Constable Satya Prakash Misra.
The fact of rape by the accused-appellant has been conclusively proved by the evidence of the victim and admittedly the accused-appellant was working in Police Station-Malwan before the incident. The accused-appellant was known to the people of Malwan area. In the statement of the accused-appellant recorded under Section 313 CrPC it was said by him that he was entrapped in rivalry, but no rivalry was explained by the defence, so that the presumption under section 29 of POCSO Act could not be dislodged. After perusal of all the above evidences, the offence punishable under Section 376 IPC and Section 6 of POCSO Act has been found proved against the accused appellant.
On the basis of aforesaid finding, the trial court has come to the conclusion that against the accused-appellant Ajit Singh Sipahi for the offence punishable under Section 376 of Indian Penal Code read with Section 3 (ii) (v)/ 3 (i) (xii) of SC/ST Act. And Section 5/6 POCSO Act, the prosecution has been successful in proving the allegation beyond reasonable doubt. Accordingly, the accused-appellant has been convicted under Section 376 of the Indian Penal Code read with section 3 (ii) (v)/ 3 (i) (xii) of the S.C/S.T Act and also Section 5/6 POCSO Act and sentenced him to life imprisonment along with fine as referred to above.
Rajiv Lochan Shukla, counsel for the accused appellant, submitted that as per the prosecution version, the incident took place on 9.9.2015 at 4:30 A.M, whereas statement of the victim under Section 161 CrPC has been recorded by the Police in which she has stated that she went to ease herself behind her house and someone caught hold of her from behind and gagged her mouth. When the victim raised the alarm, her parents came there. Due to darkness, the victim was unable to recognise the accused. She has also stated that no wrongful act had been committed upon her. She has further stated that she did not see the person who gagged her mouth due to darkness.
Counsel for the appellant has argued that since the statement of the victim under Section 161 CrPC was recorded soon after the incident and has been exhibited and accepted by the witness in Court, the same is liable to be treated as a natural statement.
The AGA supported the prosecution version and submitted that the statement of the victim is credible in the facts and circumstances of the case and since she has clearly disclosed about the commissioning of the offence of rape by the accused appellant upon her, therefore, the trial court has not committed any error in holding the conviction of the accused-appellant under Sections 376 IPC read with Section 3 (ii) (v)/ 3 (i) (xii) SC/ST Act and Section 5/6 POCSO Act.
The Court said the only question to be addressed and determined in this appeal is whether the accusation of guilt arrived at by the Trial Court and the sentence awarded is legal and sustainable and suffers from no infirmity and perversity.
The Court observed,
The facts as have been noticed above would clearly go to show that a first information report was lodged on 9.9.2015 on the written report of the first-informant wherein he has alleged that in the early morning the victim in order to go to her school went to ease herself behind her house and when she was easing herself, the accused appellant caught hold of her from behind and gagged her mouth and dragged her to the field and committed rape upon her. On the fateful day of the incident, her statement under Section 161 CrPC has been recorded by Police Constable Vandana Dwivedi on the instruction of Investigating Officer wherein the victim has stated that on the fateful day she went to ease herself behind her house and someone caught hold of her from behind and gagged her mouth.
It has been further alleged that when the victim raised the alarm, her parents i.e the informant and his wife (mother of the victim) came on the spot. The victim did not see the face of that unknown person due to darkness and after that it was her father, who said that he was Ajit Singh Sipahi/Constable. She did not recognise the accused due to darkness. She has further admitted that the said statement has been given by her without any pressure or duress.
In the facts of the case, the solitary testimony from the prosecution side is of the victim herself but upon a deeper evaluation of the statement of the victim recorded under Section 161 and 164 CrPC and the statement given before the court below, we find that there is improvement in the statements of the victim after her statement was recorded under Section 161 CrPC on the same day i.e date of incident and such development or improvement in the statement of the victim amounts to major improvement, which renders the testimony of the victim unreliable.
It is settled law that where the previous statement and the evidence before the court below are so inconsistent and irreconcilable with each other that both cannot co-exist, therefore, it can be said that the previous statement contradicts the witness with the evidence given by him/her before the Court.
“In view of the above discussions, we find that the trial court was not justified in returning the finding of guilt against the accused-appellant on the basis of evidence led by the prosecution. Finding of the court below that the guilt of the accused-appellant has been proved beyond reasonable doubt is thus rendered unsustainable. We hold that the prosecution has failed to prove the guilt of the accused-appellant beyond reasonable doubt,” the Court further observed while allowing the appeal.
“The judgment and order of conviction against the accused appellant Ajit Singh Sipahi dated 12.11.2018, passed by the Additional Sessions Judge-VIII, Fatehpur in Special Trial is hereby set aside.
The accused appellant Ajit Singh Sipahi/Constable is clearly entitled to benefit of doubt. He is in jail since 5th November, 2018 and has already undergone four years and two months of incarceration, he is entitled to be released forthwith subject to compliance of Section 437- A CrPC unless he is wanted in any other case,” the Court ordered.