Baikunth vs State of U.P.

Vinod Prasad, J.—The appeal was listed in the cause list for hearing. Nobody appeared from the side of the Appellant to argue the appeal, which came up for hearing after a gap of three decades, therefore, applying the law laid down by the Apex Court in Bani Singh and Ors. v. State of U.P. AIR 1996 SC 2639, Sri Devendra Mohan Singh, learned Advocate was appointed as Amicus Curiae to argue the appeal for the Appellant.

Heard learned Amicus Curiae and learned AGA.

This appeal has been preferred by the sole Appellant Baikunth aggrieved by his conviction u/s 376 Indian Penal Code and imposed sentence of six years RI and u/s 323 Indian Penal Code for six months RI recorded by 4th Additional Sessions Judge, Jhansi in S.T. No. 33 of 1980 (State v. Baikunth and Anr.) vide impugned judgment and order dated 2.2.1982.

Appeal was admitted in this Court on 15.2.1982 and lower court record was summoned. Various intimations were sent for sending of trial court record and ultimately District Judge, Jhansi vide his report dated 29.11.2002 intimated this Court that the original trial court record has already been weeded out and, therefore, could not be sent to this Court. An order for reconstruction, therefore, was directed by this Court. District Judge, Jhansi on the aforesaid direction furnished a report dated 14.8.2008 wherein, he intimated the Court that he had directed for reconstruction of the record to the concerned court. There is a subsequent report by the Sessions Judge dated 5.2.2010 wherein, he has mentioned that in spite of best efforts being taken, reconstruction of the record is not possible.

On merits, learned Amicus Curiae pointed out from the impugned judgment that the incident is alleged to have occurred on 25.3.1979 at 10.00 A.M. in a field, which was visible from all sides and, therefore, it is difficult to rely upon prosecution case that rape can be committed when accused can be spotted by anybody. It is further pointed out that according to prosecution story, Chandrawati was present during the early part of the incident but prosecution intentionally and deliberately withheld and not examined her as she was not ready to support prosecution case. Chandrawati was the daughter of jeth of victim Pan Kunwar P.W. -2 wife of Dwarika. It is further pointed out that prosecution examined only two fact witnesses P.W. -1 Chhuttan and P.W. 2 Smt. Pan Kunwar but Chhuttan turned hostile and did not support the prosecution case and hence only on the testimony of victim P.W. -2 that conviction was recorded. It is further submitted that Dwarika husband of the victim never entered in the witness box to support her wife''s allegation. It is further submitted that the defence plea that the victim was a married lady and she had an intercourse with her husband and, therefore, medical evidence supporting intercourse with her is not a corroborative evidence and defence plea cannot be ruled out. Learned Amicus Curiae submitted that in absence of the original record and looking to the unsatisfactory nature of evidence, appeal of the Appellant should be allowed and the appeal should not be remanded back for retrial as none of the original papers will be available for a just and fair trial. It was further submitted that the incident occurred more than three decades ago and, therefore, also remanding the case for retrial will not be in the interest of justice specially when earlier statements and the original exhibits are not available and cannot be reconstructed. It is also contended that according to prosecution, two accused were present at the scene and participated in the incident but one of them Brij Bhushan has been acquitted by the trial Judge, which erodes the credibility and truthfulness of victim''s allegation specially when she is not supported by the P.W. -1 another witness of fact. It was further submitted that the sentence was only for six years RI and there is No. appeal for enhancement of sentence and, therefore, also after so many years, the appeal be not remanded back for retrial.

Since, reconstruction of the record is not possible, applying the decision of the Apex Court in State of U.P. Vs. Abhai Raj Singh and Another, and Sornam v. State of Tamilnadu 1989 MLW (Cri) 449 and Prabhat Narain Mehrotra Vs. State of U.P., there is No. option left for this Court but to allow the appeal specially in view of above unsatisfactory nature of evidences.

The appeal, therefore, is allowed.

The impugned judgment of conviction and sentence of Appellant Baikunth is hereby set aside and the Appellant is acquitted for both the charges. Appellant is on bail, he need not surrender, his bail bonds and surety bonds are discharged.

Let a copy of this judgment be certified to the trial court for its intimation.

Sri Devendra Mohan Singh, learned Amicus Curiae has rendered assistance in deciding the appeal, which was pending since last three decades and, therefore, he is directed to be paid Rs. 6,000/- as his fees by the office of this Court.