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SUPREME COURT OF INDIA
DIPAK MISRA, N.V. RAMANA, JJ.
Md. Ali @ Guddu – Appellant
Versus
State of U.P. – Respondent
CRIMINAL APPEAL NO. 2238 OF 2010 WITH CRIMINAL APPEAL NO.425 OF 2015 (@ SLP(Crl.) NO. 9896 of 2011) CRIMINAL APPEAL NO. 636 OF 2012
Decided on: 10-03-2015
(1979) 2 SCC 297; (1994) 6 SCC 29; (2005) 6 SCC 211; (2011) 2 SCC 385 – Relied upon
(b) Code of Criminal Procedure, 1973 – Section 154 – FIR – In rape cases lodging of FIR normally takes more time for various reasons including mental trauma, social concerns etc. – However undue delay without sufficient cause even after giving allowances for various factors would be fatal. (Para 16)
(2013) 3 SCC 791 – Relied upon
(c) Criminal trial – Appreciation of evidence – Appellate Court – Duty of – Prosecutrix missing from home – No missing report lodged with police by the mother or any other relative – Persons connected with recovery of prosecutrix not examined – Medical evidence not reporting any injury on private parts – Testimony of prosecutrix – Not reliable and inspiring confidence – Conviction not sustainable. (Para 20, 21)
(2013) 15 SCC 263; (2002) 4 SCC 571; (2013) 6 SCC 798 – Relied upon
Facts of the case:
The appellants were convicted and sentenced under Section 363, 366 and 376 I.P.C.
The High Court affirmed the conviction and the sentence.
Finding of the Court:
Courts below have not assessed the evidence properly.
Result: Appeal allowed.
Judgment
Dipak Misra, J.
Leave granted in SLP (Crl.) No. 9896 of 2011
2. The present appeals are directed against the common judgment and order dated 25.03.2009 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 602 of 2006 and Criminal Appeal No. 863 of 2006 whereby the learned Single Judge has given the stamp of approval to the judgment and order dated 30.01.2006 passed by the learned Additional Sessions Judge/F.T.C., Hapur, District Ghaziabad whereunder he had convicted the appellants under Section 363, 366 and 376 I.P.C. and sentenced each of them to undergo three years rigorous imprisonment under Section 363 IPC and to pay a fine of Rs.2,000/- with a default clause, five years rigorous imprisonment and to pay a fine of Rs.3,000/- under Section 366 IPC and ten years rigorous imprisonment and to pay a fine of Rs.5,000/- under Section 376 IPC with the default sequitur. All the sentences were directed to run concurrently.
3. The prosecution case, as has been unfurled, is that a written report was filed by the complainant, Smt. Aneesa, PW-2, on 3.12.1996 on the allegation that on 22.11.1996, around midnight, her daughter, Gulistan, PW-1, aged about 14 years, went out of her house to answer the call of nature but did not return for a considerable time. Being anxious, she went in search of her and at that time Ali Waris, one of the appellants herein, informed her that he had left her daughter at his door. Thereafter, PW-2 and his son Abrar, PW-4, searched for her in the neighbourhood as well as amongst the relatives but as it turned out to be an exercise in futility, she sensed some foul play and eventually informed the police that Ali Waris and Mohammad Ali @ Guddu had kidnapped her daughter. After the criminal law was set in motion, the investigating agency commenced the search of the victim. As the factual matrix would uncurtain, Abrar had along with co-villagers, namely, Arif s/o Md. Rafi, Zulfi, Papat, Shafiq and others had gone in search of his sister, they had reached village Loni and Arif s/o Azam Khan brought Gulistan from a house and handed over to him. All of them along with Gulistan went to the police station on 18.1.1997 and PW-2 and Gulistan, PW-1, submitted an application at the police station Dhaulana. The statement of the victim was recorded under Section 164 of the Code of Criminal Procedure. The investigating agency sent the victim for medical examination, recorded the statements of seven witnesses, prepared the site plan and after completing other formalities placed the chargesheet against eight accused persons, namely, Ali Waris, Md. Ali, Mehmood, Allahrakha, Sirajoo, Fazal, Shamshad and Sarfraz for the offences punishable under Sections 363, 366, 368 and 376, IPC before the competent Court which in turn committed the matter to the Court of Session.
4. The accused persons abjured their guilt and pleaded false implication due to political rivalry relating to Gram Sabha Pradhan elections.
5. In course of trial, the prosecution, to bring home the charges, examined seven witnesses, namely, Gulistan, PW-1, the prosecutrix, Anisha, PW-2, the informant and the mother of the victim, Liyaqat Ali, PW-3, Abrar, PW-4, the brother of the victim, Maqsood, PW-5, Mahavir Singh, PW-6 and Dr. Rekha Singh, PW-7 who had examined the victim. Be it noted, PWs 3 and 5 have turned hostile.
6. The accused persons in their statements recorded under Section 313 of CrPC denied their involvement in the occurrence. Their plea was that they had supported Ali Waris in village Pradhan election and the rival party Arif, a relative of PWs 1, 2 and 4 was defeated. The defence in order to establish its plea examined one witness, namely, Jaggi Rana, DW-1.
7. The learned trial Judge on appreciation of evidence brought on record came to hold that the prosecution had been able to establish the charges against four accused persons, namely, Ali Waris, Mohd. Ali @ Guddu, Mehmood and Fazal for the offences under Sections 366, 368 and 37
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