IMPORTANT POINT
Evidence of hostile witness should not be discarded in totality.
Discrepancies and inconsistencies, if not major, should not benefit the accused.

Judgment :

Dr. B.S. CHAUHAN, J.

l. This criminal appeal has been preferred against the judgment and order dated 23.3.2007 passed by the High Court of Allahabad in Government Appeal No. 1246 of 1999 by which the High Court has reversed the judgment of Additional District and Sessions Judge, Basti in Sessions Trial No. 312 of 1996 dated 2.2.1999 acquitting the appellant. Thus, the High Court has convicted the appellant for the offence punishable under Sections 302 and 376 of Indian Penal Code, 1860 (hereinafter called as `IPC’) and awarded him the life imprisonment for both the offences. However, both the sentences have been directed to run concurrently.

2. Facts andcircumstances giving rise to this appeal are that:

A. One Smt. Batasi Devi (PW.2) lodged an FIR on 2.2.1996 in Haraiya Police Station alleging that her daughter Renu, aged 5-6 years, was found dead on her cot in Muradipur, the village of her maternal grandmother on 30.1.1996 at about 9.00 p.m. Initially, she had been told that her daughter died of paralysis and she was buried at the bank of Manorama river. Later on she got information from Shitla Prasad Verma (PW.8), Jata Shankar Singh (PW.7) and other persons of the same village that her daughter had been raped and killed by Ramesh, appellant. She also made a request that the dead body of the child be exhumed and sent for post-mortem.

B. On the order of the concerned Sub-Divisional Magistrate, the dead body of Renu was dug out from the grave and sent for post-mortem on 3.2.1996. The autopsy was conducted by Dr. Ajay Kumar Verma and Dr. S.S. Dwedi of District Hospital. In their opinion, death was due to shock and haemorrhage as a result of ante-mortem vaginal injuries.

C. Onthe basis of the post-mortem report, Case Crime No. 22 of 1996 was registered against the appellant under Sections 302 and 376 IPC. After having the investigation, the police filed the chargesheet against the appellant. During the trial prosecution examined 14 witnesses to prove its case including Kunwar Dhruv Narain Singh (PW.1), the scribe of the FIR, Batasi Devi (PW.2), mother of the deceased Renu, Jata Shankar Singh (PW.7), Shitla Prasad Verma (PW.8) and after conclusion of the trial and considering the evidence on record, the trial court vide its judgment and order dated 2.2.1999 acquitted the appellant of both the aforesaid charges.

D. Being aggrieved, the State preferred Criminal Appeal No. 1246 of 1999 which has been allowed by the High Court vide judgment and order dated 23.3.2007 and the appellant has been convicted and awarded the sentence of life imprisonment on both counts.

Hence, this appeal.

3. Shri Rajender Parsad Saxena, learned counsel appearing for the appellant, has submitted that High Court has committed an error by reversing the well-reasoned judgment of acquittal by the trial court. There is no iota of evidence against the appellant on the basis of which the conviction can be sustained. The evidence relied upon by the High Court particularly that of Kunwar Dhruv Narain Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8) cannot stand judicial scrutiny as these witnesses had been motivated; improvement in the depositions of Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8) had been to the extent that it is liable to be discarded as a whole. The other witnesses have turned hostile, therefore, there is nothing on record to show that the appellant was connected with the crime by any means. There is no evidence on record on the basis of which it can be established that Renu (deceased) used to sleep in the house of the appellant or the appellant had an opportunity to commit the offence. The findings recorded by the High Court are perverse not being based on evidence on record. Thus, the appeal deserves to be allowed.

4. Onthe contrary, Shri Manoj Kumar Dwivedi, learned counsel appearing for the State has vehemently opposed the appeal contending that the judgment of the trial court has rightly been rever