allahabad high court

Allahabad High Court: In a batch of appeals filed by the convicts against their conviction order for offences under Sections 376(2)(g) and 302 read with 34 of the Penal Code, 1860 (‘IPC’) passed by Additional Sessions Judge, the division bench of Ashwani Kumar Mishra and Syed Aftab Husain Rizvi*, JJ. while acquitting the convicts, said that the sole testimony of the informant, who is a chance witness, is not inspiring and trustworthy. There are serious discrepancies, which makes it highly doubtful that he has seen the occurrence. No doubt that the victim has been sexually assaulted and was strangled to death, but it is not proved that the convicts are the real culprits. Their false implication on the basis of suspicion or with ulterior motive cannot be ruled out. There is no sufficient evidence on record to prove the prosecution case beyond reasonable doubt. Further, it said that the Trial Court has failed to notice the serious discrepancies in the ocular testimony of informant.

The convicts were sentenced to 10 years rigorous imprisonment and fine of Rs.5000/- under Section 376(2)(g), and life imprisonment and fine of Rs.5000/- under Section 302 read with Section 34 IPC.

In the case at hand, it was alleged that on 30-11-1999, the 13-year-old daughter of informant had gone to collect the grass. At about 5 P.M., the informant came near the field to collect the grass, where he heard the screams of his daughter from the field. On hearing the screams, he entered the field with three others. They saw the convicts were strangulating her daughter by tying her neck with a bed sheet. On exhortation, the accused ran away. When the informant reached near the victim, she had died. The convicts have also committed sexual assault on her because her private part was bleeding and semen spots were present on her clothes.

The Court noted that the postmortem report confirms that the victim was subjected to sexual assault and was strangulated to death. One ligature mark and one abrasion were found on her neck. The evidence on record also indicates that the victim has put up resistance and struggled. Her kurta sleeves were torn into pieces and were found near the dead body. So, the evidence on record suggests that the incident did not occur in a moment. It must have happened for a considerable time. However, according to the oral testimony of the informant on hearing the screams, he immediately rushed towards her. But when he reached near the victim, she was already dead. The witness has also stated that on hearing the screams when he entered in the field then he saw two convicts were strangulating her daughter with bedsheet, tying it around her neck while one of the convict was sexually assaulting her, lying upon her and the fourth convict was pressing her mouth. As per the Court, this eye-witness account is not inspiring. It appears highly improbable that at a time when one of the convicts was engaged in sexual assault, the other convict was strangulating her tying bedsheet around her neck.

Further, the Court noted that, informant in his deposition has stated that when he reached the field then he saw that two of the convicts were strangulating the victim pulling the bedsheet tied around her neck, on his exhortation, all the accused ran away from the spot. In such a situation, the bedsheet should have been found to be tied around the neck, but at the time of spot inspection the bed sheet was not found tied around the neck, instead it has been found lying at some distance near the dead body. Thus, the Court said that there is a serious discrepancy in the eyewitness testimony. It does not match with other evidence, material and circumstances.

The Court noted that one dupatta of the victim has also been found near the dead body. The width of the ligature mark indicates that strangulation may have been caused by some thinner article than the bedsheet. Thus, the Court doubts the ocular testimony of the informant, who is the sole witness who has supported the prosecution case. Further, it said that from the evidence and other material, it transpires that the informant has reached the place of occurrence and saw the dead body of her daughter and only based on suspicion, the FIR has been lodged naming the convicted persons.

[Arvind Kumar v State of U.P, 2023 SCC OnLine All 2287, Order dated 08-11-2023]

Advocates who appeared in this case :

Counsel for Appellant: Advocate Udai Karan Saxena, Advocate Sanjeev Kumar Singh, Advocate BN Singh

Counsel for Respondent: – Government Advocate

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