The Allahabad High Court has set aside the conviction and life sentence of the accused who had spent 13 years in jail for raping a four-year-old girl due to lack of concrete evidence.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Gautam Chowdhary passed this order while hearing a Criminal Appeal filed by Mohd Hamid.
The appeal is directed against judgment and order of conviction and sentence dated 21.9.2013, passed by the Additional Sessions Judge, Azamgarh in Session Trial, arising out of Case Police Station Mubarakpur, District Azamgarh, whereby the accused appellant Mohd Hamid has been convicted and sentenced to rigorous life imprisonment alongwith fine of Rs 20,000/- under Section 376 IPC and on failure to deposit fine to undergo additional imprisonment for two years.
Victim in the case is a four-year-old girl, who has been subjected to rape. Victim’s father has lodged the written report saying that he is a resident of Village Gajahara, Police Station Mubarakpur, District Azamgarh. On the date of incident, i.e 15.8.2011 when the informant returned from work at about 3.00 he came to know that his wife had gone to get cow dung cake from the neighbourhood and in between the accused entered the house and sexually assaulted the victim.
On arrival of the informant’s wife she raised an alarm whereafter the accused fled and was apprehended by the villagers. The victim was bleeding from her private parts and was brought with the informant for lodging the report.
It is with this allegation that the First Information Report came to be registered as Case Crime under Section 376 IPC at 4.30 PM on the date of incident.
On the basis of material collected during the course of investigation, a charge-sheet came to be submitted against the accused appellant Mohd Hamid by the Investigating Officer. The concerned Magistrate committed the case to the Court of Sessions Judge, Azamgarh where charges were framed against the accused on 3.11.2011. Charges were explained to the accused, who denied his implication and demanded trial.
The above evidence produced during trial by the prosecution has been confronted to the accused, who has stated that the report lodged against him is false and evidence is fabricated. He has also stated that due to village enmity on account of election of Pradhan, he has been falsely implicated. The above evidence has been evaluated by the court of session, who ultimately has convicted and sentenced the accused appellant, as per above.
Challenging the judgment of conviction and sentence, counsel for the appellant argues that there is absolutely no evidence on record to connect the accused appellant with the commissioning of offence and the contrary finding of the court below is wholly perverse.
Counsel also submitted that neither any injury has been found on the accused nor any blood or semen has been found on his clothes and even his arrest at the spot has not been proved.
Submission is that merely because prosecution has established that injuries existed on the victim, it would not necessarily follow that the offence of rape was committed by the accused appellant or that his implication is substantiated on the basis of admissible evidence.
It is further urged that even though there is no evidence against the accused appellant, yet he is incarcerated in jail since the year 2011, and thus the period of incarceration undergone by the accused appellant is nearly 13 years, by now. Submission is that the accused appellant is entitled to be acquitted.
The Court noted that,
The evidence led by the prosecution would go to show that the informant was himself not present at the place of occurrence when the incident occurred. The informant in the written report as also in his deposition has clearly admitted that he had gone out and it was only on his return that he came to know that accused had committed rape upon his daughter. The informant, therefore, is not an eye-witness. The other prosecution witness of fact is the wife of the informant, who also was not present when the incident occurred. The assertions in the written report and the testimony of informant clearly go to show that the informant’s wife had gone to get cow dung cake from the neighbourhood and by the time she returned, the incident of rape was committed upon her daughter.
It is also the prosecution case that the accused was apprehended near the spot by the villagers, once they saw the accused fleeing from the place of occurrence after subjecting the four year old minor girl to rape. The incident of rape has been proved by the prosecution on the strength of the medical report, which is on record. The injury report of the victim clearly goes to show that the victim had been subjected to sexual assault. The testimony of doctor supports the prosecution allegation of rape, inasmuch as the doctor found that there was swelling on the vulva of the victim and the hymen was ruptured. Margins were irregular. Tenderness was also present. Although the doctor in the cross-examination has stated that no semen was found on the vaginal smear prepared of the victim but she has clearly ruled out the possibility of such injury having been caused accidentally, by the insertion of pointed object or on account of fall of the victim etc as was suggested by the defence.
The FIR allegations otherwise are to the effect that the victim was found bleeding from her private part. The medical examination of the victim has been conducted on the date of incident and the same has been clearly proved.
From the medical evidence, which is supported by the statement of the doctor, it is abundantly clear that 4-5 year old minor victim has been subjected to sexual assault. The finding of the sessions court holding that the prosecution has proved the occurrence of rape is, therefore, sustained.
The medical evidence on record has been carefully examined by the court and the Court found that there is nothing in it to connect it with the accused appellant. The accused appellant has not been medically examined and there is no medical report of the accused on record. The only recovery made from the accused is of his trousers (jeans) on which neither there is any blood found nor there are any traces of semen etc. No individual has come forward from the side of the prosecution to prove the fact that the accused was seen committing the offence or he was soon apprehended by them. Though the Investigating Officer states that the accused was apprehended on the spot by the villagers, that statement in itself would not be sufficient to connect the accused appellant with the commissioning of offence. Moreover, there is no arrest memo on record to prove the fact that the accused was arrested on the spot, nor is there any independent witness of the arrest of the appellant.
“We have carefully perused the available records, but from its perusal we have not been able to find any credible evidence produced by the prosecution, on the basis of which we may reasonably come to the conclusion that it was the accused appellant who had committed sexual assault upon the victim. So far as the judgment of conviction and sentence is concerned, we find that the trial court has placed reliance upon the testimony of the mother of the victim, wherein she has supported the prosecution case with regard to apprehending the accused on the spot. Apart from it, there is absolutely no other evidence, which has been referred to or relied upon by the trial court to implicate the accused appellant. The statement of mother of the victim has been perused by us, wherein she has alleged that the villagers had apprehended the accused but she does not know whether the accused was rightly apprehended by the villagers or not. We find that this evidence in itself would not be sufficient to sustain the finding that prosecution has established its case of arrest of the accused appellant, on the spot, soon after committing rape, beyond reasonable doubt.
In the facts of the case, we find that the accused appellant otherwise has undergone incarceration of nearly 13 years. Upon analysis of the evidence on record, we are, therefore, persuaded to accept the argument of appellant’s counsel that the prosecution has failed to establish the complicity of the accused appellant in committing the offence, beyond reasonable doubt. The accused appellant, accordingly, is held entitled to benefit of doubt”, the Court observed while allowing the appeal.
The Court set aside the order of conviction and sentence dated 21.9.2013. The appellant Mohd Hamid shall be released from Jail, forthwith, unless he is wanted in any other case, subject to compliance of Section 437-A Cr.P.C.