AI Structured Summary
Not yet generated for this judgment
Judgment
Ravindra Maithani, J
Both these appeals have been directed against the judgment and order dated 30.01.2017/01.02.2017 passed in Special Sessions Trial No. 65 of 2016, State Vs. Mukesh and another, by learned FTC/Additional Sessions Judge/Special Judge, POCSO, Rudrapur, District Udham Singh Nagar. By the impugned judgment and order appellant Mukesh has been acquitted of the charges under Section 363, 366, 342, 376A and 506 IPC but he has been convicted under Section 302, 376 (2) IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act") and sentenced under Section 302 and 376 (2) IPC as hereunder:
"(i) Under Section 302 IPC imprisonment for life & a fine of Rs. 50,000/-. In default of payment of fine to under simple imprisonment for a further period of six months.
(ii) Under Section 376 (2) IPC imprisonment life which shall mean imprisonment for the remainder of appellant Mukesh's natural life and a fine of Rs.50,000/- In default of payment of fine to undergo simple imprisonment for a further period of six months Respondent Vikesh has been acquitted of the charges under Section 363, 366, 342, 302, 506 IPC and Section 6 POCSO Act.
Since common question of law and facts are involved in both these appeals, therefore, the same are being taken up together and decided by this common judgment.
The story as unfolded by the prosecution, briefly stated, is as hereunder:
(i) The victim in the case, against the wishes of her father PW2, who is the informant also, married the appellant Mukesh. Mother of the victim PW1 was agreeable to this marriage. For this purpose, victim left her paternal house alongwith her mother PW1 on 19.06.2015. Victim alongwith appellant Mukesh and her mother PW1 stayed in a rented accommodation in Rudrapur, District Udham Singh Nagar. On 27.08.2015, the victim died. An FIR of this incident was lodged by her father PW2 on 24.02.2016. According to this FIR, the victim was aged 13-14 years. On 19.06.2015, she alongwith her mother had gone to get medicine from the market. There, they met the appellant Mukesh and her maternal aunt Soni. They took the victim and her mother to Shahjahanpur. There they stayed for about 2-3 days and then the appellant Mukesh took them to Rudrapur. Informant tried to search for his daughter (the victim) and his wife but to no avail. On 06.07.2015, informant get the marriage agreement of his daughter and appellant Mukesh. It is only, thereafter, he came to know that the victim illegally got married. He still tried to search for her, but since appellant Mukesh was changing the rooms, he could not trace them. On 26.08.2015, the informant received a telephone call from the victim saying that she was in Rudrapur and requested her father to take her back. Next day, the informant came to know that the victim had been killed by the appellant and his family members. The informant reached Rudrapur, where he met PW3 Arti. PW3 Arti told the informant PW2 that appellant Mukesh had a quarrel with the victim. The appellant had beaten her up. The informant gave a report to Police and also submitted application before the Court but he was never heard. This report was lodged on 24.02.2016 at Police Station Transit Camp, Rudrapur. Based on it, case under Section 342, 363,366, 302, 506 IPC and 3/4 POCSO Act was registered. Investigation carried out.
(ii) At this stage, it may be noted that prior to the lodging of the FIR, in this matter, when victim died on 26.08.2015, her inquest was prepared by the Police Officer of the same Police Station Transit Camp, Rudrapur and in this inquest, mother of the victim PW1 was a witness. Thereafter, on 28.08.2015, post mortem of the victim was conducted. According to the Doctor, the cause of death was asphyxia as a result of ante mortem throttling.
(iii) During investigation, the Investigating Officer prepared the site plan and took into custody the marriage agreement as well as the school record of the victim for the purpose of ascertaining her age. Appellant Mukesh and respondent Vikesh were arrested. After investigation, charge sheet was submitted against the appellant Mukesh and respondent Vikesh under Section 363, 366, 342, 376, 302 and 506 IPC and 3/4 POCSO Act. On 27.06.2016, charges under Sections 363, 366, 342, 376A, 302 and 506 IPC and 6 POCSO Act were leveled against the appellant Mukesh. On the same day, charges under Sections 363, 366, 342, 302 and 506 IPC and 6 POCSO Act were leveled against the respondent Vikesh, to which they denied and claimed trial.
In order to prove the case, the prosecution examined as many as eleven witnesses, namely, PW1 mother of the victim, PW2 father of the victim, PW3 Arti, PW4 Sanjay Saxena, PW5 Shailendra Kumar Ranjan, PW6 Sunil Kumar, PW7 Mukesh Kumar, PW8 Dr. L.S. Tolia, PW9 Avdesh Kumar Awasthi, PW10 Kundan Singh Adhikari and PW11 Nirodh Adhikari.
Appellant Mukesh and respondent Vikesh were examined under Section 313 of the Code. Respondent Vikesh denied the allegations. According to him, he was not with either the appellant Mukesh or with his wife and he was in his village Mainpuri.
According to the appellant Mukesh, PW1 mother of the victim asked him to marry her daughter saying that PW2 father of the victim wanted to sell that girl; he was staying with the victim and her mother; he had a quarrel with his mother-in-law; his wife never took quarrel with him; after the quarrel, his mother in law had stayed in the house of the neighbours. Next day, he had left for work and when he returned in the noon, he saw his wife hanging by a Duppatta. According to the appellant Mukesh, he did not kill his wife. The mother-in-law has falsely implicated him. The appellant Mukesh or respondent Vikesh had not adduced any evidence in their defence.
By the impugned judgment and order, the appellant Mukesh has been convicted and sentenced as above. Aggrieved, appellant Mukesh preferred the appeal. Respondent Vikesh has been acquitted of the charges. State has preferred the appeal challenging his acquittal alongwith application for leave to appeal (Leave To Appeal No. 141 of 2017). Leave granted.
Heard learned counsel for the parties and perused the record.
Learned counsel for the appellant Mukesh and respondent Vikesh raised following points in her arguments:
FIR is delayed almost by six months. It makes the prosecution case doubtful, especially, in view of the fact that soon after the death of the victim on 27.08.2015, her inquest was prepared and post mortem conducted on 28.08.2015.
The statement of PW1 mother of the victim is not reliable.
Statement of PW2 father of the victim is hearsay statement.
According to PW3 Arti, the appellant Mukesh had left for work on that date when the victim died; respondent Vikesh was not staying with the appellant Mukesh and the victim.
Victim was not a child. Her date of birth has not been proved. Instead there are a lot of contradictions about her age. The case was based on direct evidence. But conviction was maintained on the basis of circumstantial evidence by the learned court below, which is not permissible in the eyes of law.
Medical evidence does not support the prosecution case because at the time of inquest, there was rigor mortis, which makes the prosecution case doubtful because even after 36 hours of the death, there cannot be rigor mortis.
Learned counsel would argue that although school record has been proved with regard to the age of the victim, but what is proved, does not establish the date of birth of the victim. Learned counsel referred to various parts of the statement of the witnesses in support of her contention. It is argued that prosecution utterly failed to prove the case beyond reasonable doubt against Mukesh and Vikesh. Therefore, appeal filed by the appellant Mukesh deserves to be allowed and appeal filed by the State against the respondent Vikesh also deserves to be dismissed.
On the other hand, on behalf of the State, learned counsel would submit that PW1 mother of the victim has supported the prosecution case; her statement finds support from the medical evidence; victim was a minor, her transfer certificate and school record have been proved. Mukesh and Vikesh were staying in the same house, where the victim was found dead. The cause of death was well within the knowledge of Mukesh and Vikesh and the burden was upon them under Section 106 of the Indian Evidence Act, 1972, which they failed to discharge; in fact, it is argued that in the statement recorded under Section 313 of the Code, Mukesh has admitted that PW1 was staying with them and they had a fight a day before, the victim died. The case has partly been admitted by Mukesh in his examination under Section 313 of the Code. It is argued that prosecution has proved the case beyond reasonable doubt against Mukesh and Vikesh. Therefore, appeal filed by Mukesh deserves to be dismissed and the appeal filed by the State against the acquittal of the Vikesh deserves to be allowed.
It is a criminal trial. Prosecution has to prove it's case beyoud reasonable doubt. It is well settled that the prosecution must stand or fall on it's own legs and it cannot derive any strength from the weakness of the defence Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
In the case of Sudru V. State of Chattisgarh, 2019 SCC Online SC 1084, Hon'ble Supreme Court held that "No doubt, that non-explanation or false explanation by appellant cannot be taken as a circumstance to complete the chain of circumstances to establish the guilt of the appellant. However, the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances."
Respondent Vikesh has already been acquitted of the charges. State preferred an appeal against his acquittal. Normal rule of criminal jurisprudence is that a person is considered innocent till found guilty. Once acquittal is recorded he further enjoys the benefit of such presumption of being innocent. It is also settled law that if two views are possible, the view adopted by the trial court is to be respected.
In the case of Govindaraju @ Govida Vs. State by (2012) 4SCC 722, Hon'ble Sriramapuram Police Station and another, Supreme Court, inter alia, held as hereunder:
"11. Besides the rules regarding appreciation of evidence, the court has to keep in mind certain significant principles of law under the Indian criminal jurisprudence i.e. right to fair trial and presumption of innocence, which are the twin essentials of administration of criminal justice. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefits of such presumption which could be interfered with by the courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. The element of perversity should be traceable in the findings recorded by the court, either of law or appreciation of evidence.
If we analyse the above principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"
PW1 is mother of the victim. According to her, on the date of the incident, in the month of June, she alongwith the victim had gone to take medicine in the market, where she met Mukesh and his sister in law Soni, who took them to Shahjahanpur and kept them there. Thereafter, they took them to the house of Sunil, where they stayed in the night. When this witness requested them to drop her and her daughter to their house, they did not do so. Thereafter, other family members of Mukesh and Vikesh met them. They took them to Rudrapur in a rented accommodation. In Rudrapur, they used to take the victim out of the house and would lock this witness in the room. The victim had told it to this witness that Mukesh had got her signatures on some documents and had forcibly married her and did "Ganda Kaam" without her consent.
According to PW1, a day before the death of the victim, she heard shrieks of the victim from inside the house. She went inside and saw that Mukesh and his mother, Bhabhi and Vikesh were beating the victim. When this witness resisted to it, she was expelled from the house. That night, she stayed in the neighbour's house. She was all alone. Next day morning, she heard a lot of shrieks from the house of the victim. She reached there and saw that Mukesh, Vikesh and their mother, and sister-in-law were pressing the victim against her neck. When they saw this witness, they expelled her again and bolted the door. This witness came out and cried. PW3 Arti saw the incident and when the victim died Mukesh, Vikesh and all their family members ran way. The neighbours informed the Police. Police reached at the spot. Same night, her husband also came to Rudrapur and the next day, they went back to their village. She was helpless. She was held hostage by Mukesh and Vikesh and others and killed her daughter.
PW1 mother of the victim has also stated that she had admitted the victim in Babu Ram Dixit School but she could not reveal the date of birth of the victim. PW1 mother of the victim also states that she and her daughter were enticed by Mukesh, Vikesh and others. She had no mobile phone of her own. She was not allowed to talk on the mobile phone of Mukesh and others. She was witness of the inquest also. She proved her signatures on it.
PW2 is the father of the victim girl. He has corroborated the statement of his wife PW1 and states that on 26.08.2015, he received a telephone call from the victim that Mukesh, Vikesh and his family members were beating her. Her mother had been expelled from the house and request was made to this witness for taking victim away from there. According to PW2, he reached Rudrapur next day. There PW3 Arti told him about the incident. He filed application under Section 156 (3) of the Code in District Shahjahanpur, but the case was not lodged there. Thereafter, he filed FIR Ex. A2.
PW3 Arti has not supported the prosecution case, as a whole. But, she states that two days prior to Raksha Bandhan, she had witnessed quarrel between Mukesh and his mother-in- law (PW1). The victim at that time was talking over telephone to some person. She was saying that she would not leave that place; Mukesh was saying that he had married the victim and he will not keep his mother-in-law (PW1) with him. Next day morning also, according to this witness, she had seen a fight between Mukesh and his mother-in-law PW1 and then Mukesh had left for work taking his tiffin along with him.
According to PW3 Arti, Vikesh was not staying in the house with Mukesh and his wife. She also states that victim was saying to her father that she would not leave Mukesh. Whereas, PW1 mother of the victim was saying that she would take the victim along with her.
PW4 Sanjay Saxena, Advocate had prepared the marriage agreement. According to this witness, he had an acquaintance with Mukesh. Therefore, on his request, he prepared the marriage agreement. Before it, he demanded their age proof and they placed voter identity cards. On the agreement, he got signature of the victim as well as the appellant Mukesh. This agreement is 3A/45 to 3A/47 on record but original is not on record. PW5 Shailendra Kumar Ranjan is the Notary Advocate, who notarized the agreement. He referred to another copy of the agreement, which is paper 3A/36 to 3A/38.
PW6 Sunil Kumar and PW7 Mukesh are two witnesses, according to them, Mukesh, victim, mother of the victim and sister-in-law of Mukesh stayed intheir houses in the month of June 2015. In fact, according to PW6 Sunil Kumar on 19.06.2015, they stayed in his house and when this witness came to know about their marriage, he requested them to leave their house and they left.
PW8 Dr. L.S. Tolia had conducted post mortem of the victim on 28.08.2015 and noted the following ante mortem injuries on her person:
i) Contusion- Brown in clour, Anterior of neck (right side) Size 4cm x 2cm.
ii) Contusion- Brown in colour. Back of neck. Size 3cm x 1cm.
According to the Doctor, cause of death was asphyxia as a result of ante mortem throttling.
PW 9 Avdhesh Kumar Awasthi is Principal of Pt. Babu Ram Dixit Junior High School. According to him, the victim was admitted in his school on 21.08.2012. She had passed Class-V. Her date of birth in the transfer certificate was recorded as 10.03.2003. This witness proved the transfer certificate and other school record, which are Ex. A4 to Ex A7. The record includes the transfer certificate, copy of marksheets and scholar register.
PW10 Kundan Singh Adhikari is the Investigating Officer, who had proved certain documents including site plan, chik FIR and charge sheet.
PW11 Nirodh Adhikar is a very important witness in this case. He was a neighbour of Mukesh in Rudrapur. According to him, on 27.08.2015, he heard noise in the house of Jogendra Singh and when he reached there, he found the dead body of the victim. There was no other person nearby. He is a witness of the inquest.
According to the prosecution, the victim was a minor below 18 years of age. She was enticed by Mukesh, his mother and sister-in-law. PW1 mother of the victim was also taken alongwith the victim on 19.06.2015. PW1 mother of the victim has not stated that on 19.06.2015, she was forcibly taken away from the market by Mukesh and his family members. According to her, under the pretext of getting some medicine from Shahjahanpur, she was taken along by Mukesh and his family members. The victim was with them at that time. They stayed in various houses including the house of PW6 Sunil Kumar and PW7 Mukesh. The fact remains that PW1 did not complain either to PW6 Sunil Kumar or PW7 Mukesh Kumar that she had been forcibly taken away by Mukesh and his family members. Charge is not with regard to the mother of the victim. It is not a case that PW1 was abducted. The case is with regard to victim that she was kidnapped, wrongfully confined and repeatedly raped and threatened to life.
The question of age of the victim also gains importance. First and foremost, this part of the controversy may be resolved. In FIR, which was lodged on 24.02.2016 by PW2 father of the victim, the age of the victim is stated 13/14 years. It may be noted that when the victim died and her inquest prepared on 27.08.2015, her age is recorded as 19 years. It is important to mention here that mother of the victim PW1 was a witness to the inquest. Post mortem of the victim was conducted on 28.08.2015 and in it also, her age is stated to be 19 years. Who told it to the Doctor, who conducted post mortem or to the Police Officer, who conducted inquest? There is no evidence to that effect.
PW1 mother of the victim at page 3 paragraph 1 of her statement, states that she had admitted the victim in Babu Ram Dixit School and recorded her date of birth, but she could not tell the date of birth in the court. In her cross examination recorded on 15.09.2016, PW1 mother of the victim says that her younger son Pawan Kumar is 18 years of age. It means in the year 2015, younger son of PW1 mother of the victim was of 17 years of age and if victim was elder to him, it means she must be 18 years of age in the year 2015. Further, in page 2 of the statement recorded on 15.09.2016 PW1 mother of the victim states that in the year 2003, her stomach was operated upon in Delhi and at that time victim was about 3-4 years. According to it, the victim was born sometimes in the year 1999 or 2000.
PW2 father of the victim says that the date of birth of the victim is 10.03.2003. Prosecution examined PW9 Avdesh Kumar Awasthi to prove the date of birth of the victim. PW9 Avdesh Kumar Awasthi has also proved the transfer certificate issued from the first school of the victim, where she passed Class V examination Ex. A7, in which, her date of birth is recorded as 10.03.2003.
On behalf of the State, it is argued that the date of birth recorded in the transfer certificate is valid proof. In support of his contention learned counsel placed reliance on the principle of law as laid down in the case of State of Chhattisgarh Vs. Lekhram, (2006) 5SCC 736. In that case father of the prosecutrix had stated the date of birth of the victim. The Hon'ble Court held that, the statement of father of the prosecutrix appears to be consistent and if the said statements are corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the same.
On the other hand, learned counsel appearing for Mukesh and Vikesh would argue that mere recording of date of birth in the transfer certificate is not a proof of date of birth recorded in it, unless material on the basis of which, the age is recorded is produced. In support of her contention learned counsel placed reliance on the principle of law as laid down in the case of Alamelu and another Vs. State (2011) 2SCC 385. In the case of Alamelu (supra). the Hon'ble Court held that "date of birth mentioned in the transfer certificate would have no evidentiary value, unless the person, who made the entry or who gave the date of birth is examined."(Para 40)
Learned court below had made reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 as well as Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. The date of incident is 19.06.2015. At the relevant time The Juvenile Justice (Care and Protection of Children) Act, 2000 was applicable. But, the learned court below held that since the FIR was lodged in the year 2016, therefore, the provision of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 shall also be applicable. It cannot be done. The Act, which would be applicable in the instant case is Juvenile Justice (Care and Protection of Children) Act, 2000 and the Rules made thereunder. Rule 12 of it provides the material which may be helpful to ascertain the age and in the absence of the matriculation certificate, according to it, the date of birth certificate from the school (other than a play school) first attended will be taken into consideration.
In the instant case, PW9 Avdhesh Awasthi is not the Principal of the school, which the victim first attended. In fact, according to him, victim was admitted in his school after she passed Class V. Therefore, the documents do not fall under the category of documents from the school first attended. PW9 Avdhesh Kumar Awasthi has also proved Ex.A7, which according to him, was the transfer certificate from the previous school, on the basis of which, the victim was admitted in the school of this witness. Ex.A7 reveals that victim passed her Class V examination in the year 2012. But, where did she study from Class I to V. There is no entry in this Ex.A7. This Court cannot presume that the victim first attended the same school, from which, the transfer certificate Ex.A7 was issued to her. As a result, the prosecution failed to prove the date of birth certificate from the school first attended by the victim. Transfer certificate has been proved, but who gave this date of birth and what is the basis of the date of birth, it is not proved or established? PW1 mother of the victim could not tell the date of birth. PW2 father of the victim has not stated that he got the date of birth of the victim recorded in the school. The other material is not supporting the evidence of PW9 Avedhesh Kumar Awasthi. Even PW1 mother of the victim has stated at one stage that in the year 2015, her younger son Pawan Kumar was of 17 years. And, at other stage, she has stated that in the year 2003, the victim was 3-4 years of age. If it was so, the victim cannot be said to be born on 10.03.2003, as recorded in the transfer certificate. As stated, inquest was prepared in the presence of PW1 mother of the victim. She has proved it and in it the age of victim is recorded as 19 years.
Prosecution tried to prove the marriage agreement. The agreement was allegedly prepared by PW4 Sanjay Saxena. He categorically states that before preparing the marriage agreement, he had seen the documents regarding the age of the victim and Mukesh and they had shown voter identity cards, which revealed that they were major. Original marriage agreement has not been proved. PW4 Sanjay Saxena and PW5 Shailendra Kumar Ranjan, Notary Advocate have stated about marriage agreement. They are paper Nos. 3A/45 to 3A/47 and 3A/36 to 3A/38 on record. They may be looked into because these documents are filed by the prosecution.
At this stage, a reference may be made to the statement of PW1 mother of the victim, when in page 2 bottom of her statement recorded on 15.09.2016, she states that the victim was married to Mukesh in her presence and she did Kanya Daan. Now, if marriage agreement is to be seen, in it, the age of the victim is recorded as 19 years and PW1 is a witness to this agreement. The Court is not going to hold the age of the victim as 19 years based on unproved marriage agreement. But, fact remains that the statement of PW4 Sanjay Saxena is not supporting the prosecution case with regard to the age of the victim. In fact, statement of PW1 mother of the victim also does not support the school record regarding age. This Court cannot presume that the victim was a minor. Therefore, this Court is of the view that prosecution failed to prove that the victim was a child below 18 years of age on 19.06.2015, when she left her paternal house.
The next question is as to whether rape was committed upon the victim. The victim and her mother went alongwith Mukesh and his family members on 19.06.2015. They did not raise any alarm. Although, PW1 mother of the victim says that Mukesh used to take the victim outside and would bolt her inside the house. But, this is all unbelievable. PW1 mother of the victim is, in fact, instrumental in taking her away from the custody of the father of the victim. She did Kanya Daan and she stayed with Mukesh and the victim till the time victim died. This Court has held that the prosecution failed to prove that the victim was a child on the date of incident. She married to Mukesh. Therefore, whatever sexual relations they had, they were consensual. There was no question of any act, which may amount to rape against the will and against consent of the victim. The victim and her mother PW1 remained with Mukesh from 19.06.2015 till 27.08.2015. They stayed at various places, including public places. They did not ever raise any alarm. They did not complain to anyone. Not only this, even they did not inform the father of the victim as to where they are. PW2 father of the victim has stated about it. According to him, he, in fact, was searching for his daughter. Therefore, this Court is of the view that prosecution utterly failed to prove the charge under Section 376 (2) IPC against Mukesh or Vikesh.
The question of death of the victim also comes for consideration. Undoubtedly, the victim died and her inquest was prepared on 27.08.2015. In the inquest, which is Ex. A1, it is recorded that the time of death was 5:15 AM. This inquest is proved by PW1 mother of the victim. She is not its writer. There are few facts which are very surprising in this case. A young girl died. Her inquest was prepared and even post mortem conducted, but no report was lodged by the Police. It is a cognizable offence. According to the post mortem, the death was due to asphyxia as a result of ante mortem throttling. It has been big lapse on the part of the Police. In fact, prosecution also did not produce the person, who prepared the inquest. He would have been in a position to tell in detail about the condition prevailing at the time, when inquest was prepared.
Mukesh was an old acquaintance to the family of the victim. They have been knowing to each other for years together. It has been stated by PW1 and PW2, mother and father of the victim. Undoubtedly, the death occurred in Rudrapur. Appellant Mukesh and the victim were married. PW1 mother of the victim was staying with them. According to PW 1 mother of the victim on the previous night, Mukesh and his family members were beating the victim. She intervened, but she was thrown out of the house. Next day morning also, she heard the noise and saw Mukesh, Vikesh and their family members beating the victim and when the victim died, they ran away. She claims to be an eye witness, but her statement does not find corroboration in material particulars from any other evidence.
According to PW1 mother of the victim, when she shouted PW3 Arti also witnessed that Mukesh, Vikesh and others beating the victim, but PW3 Arti has not supported it. In fact, she has given another story, which makes the prosecution case much doubtful. She does not state that the victim was beaten up by Mukesh or Vikesh or by any other person. According to PW3 Arti, she had witnessed the quarrel between Mukesh and his mother- in-law PW1. The victim was talking over telephone and saying that she would not leave the place. Mukesh was saying it to PW1 mother of the victim that he had married the victim, therefore, he would not keep his mother-in-law (PW1) with him and PW1 mother of the victim was saying that she would take the victim alongwith her. The quarrel between PW1 mother of the victim and Mukesh, according to PW3 Arti was with regard to some money. PW3 Arti also categorically stated that in that house victim, Mukesh and PW1 mother of the victim were staying. In fact, in her cross examination, PW1 mother of the victim has also stated that she was staying with the victim in Rudrapur and Mukesh was also staying with her (statement recorded on 15.09.2016 Page 1 bottom lines). The presence of Vikesh and other family members is not established.
If statement of PW1 mother of the victim is further examined, it makes her statement, in fact, wholly unreliable. In page 3 of her statement recorded on 15.09.2016, PW1 mother of the victim states that when the victim died, she was not present at the spot. She reached there when the dead body of the victim was taken away by the Police and in the following lines, she says that when the police was taking away the dead body of the victim, at that time, she reached at the spot. It is quite contradictory to the statement given by her in her examination-in-chief, where she states that she saw Mukesh, Vikesh and other family members beating the victim and on her intervention, she was thrown out of the house. In the last page third paragraph of her statement PW1 mother of the victim says that she does not know the cause of death of the victim. At one stage, she says that the victim was beaten in the evening and she died next morning (statement recorded on 15.09.2016 page 2 paragraph 2). It means that in the morning nothing had happened. Now, if according to PW1 she was not present in the morning, when the victim died, it means she was not in the house of Mukesh in the morning. It further means that statement of PW3 Arti is also not reliable, when she says that in the morning she saw the quarrel between Mukesh and PW1 mother of the victim. Statement of PW3 Arti is not wholly reliable. There is no other evidence.
PW11 Nirodh Adhikari is witness of inquest. In fact, when cross examined, he reveals a lot. He is a witness, who informed the Police. According to him, when he reached at the spot there was none from the family of the victim. PW1 is mother of the victim, according to this witness, reached at the spot after 2-21/2 hours and then went to Police Station. Where was PW1 in these 2-21/2 hours? PW1 says she witnessed beating to the victim in the morning and according to her, when victim died, Mukesh, Vikesh and their family members ran away. This statement of PW1 also get falsified by the statement of PW 11 Nirodh Adhikari. He is the person, who informed the Police.
According to PW8 Dr. L.S. Tolia, the cause of death was asphyxia due to ante mortem throttling. Death of the victim was homicidal. She was staying with Mukesh and PW1 mother of the victim. Where did PW1 stayed at night before the death occurred? Who were those neighbours? All is in doubt. Although, there are gross doubts, that perhaps Mukesh committed the crime, but doubts do not take place of "proof beyond reasonable doubt". Doubts howsoever grave shall always remain in the realm of doubt and cannot be the basis for conviction.
Learned State counsel would submit that since Mukesh, Vikesh and other family members were staying with the victim in the house. The cause of death of the victim was within their special knowledge and burden was upon them. The appellant Mukesh or respondent Vikesh did not discharge their burden or did not prove as to how did the victim die. Therefore, presumption would go against them and it shall be presumed that they have committed the murder of the victim.
It is true that burden of proving a fact within the special knowledge of the person, is upon that person. Section 106 of the Indian Evidence Act, 1872 makes provision in that respect. The site plan is on the record. There are many houses near the place of incident. PW1 was also staying with the victim. Though, statement of PW3 Arti is not wholly reliable, but she states that in the morning, she had seen Mukesh leaving house for the work. In the instant case the victim was staying with Mukesh and her mother PW1, in the rented accommodation, where the dead body was found. Therefore, under the facts and circumstances of the case, it cannot be said that the cause of death of the victim was within the special knowledge of Mukesh. Accordingly, this Court is of the view that in the instant case presumption under Section 106 of the Indian Evidence Act cannot be raised.
Arguments has been raised that FIR is delayed. Although, it is argued on behalf of the State that PW2 father of the victim had raised the issue in Uttar Pradesh and when he did not succeed, he filed the FIR. The record, as such, has not been proved by the prosecution, but there is a certified copy of the order dated 16.12.2015 passed in an application under Section 156 (3) of the Code in Misc. Application No. 858 of 2015, Dinesh Vs. Mukesh Singh and others, by the learned Chief Judicial Magistrate, Shahjahanpur. It is certified copy of the judicial order. It can be read into evidence. Perusal of this order reveals the court rejected the application on the ground that matter pertains to the State of Uttarakhand.
On 27.08.2015, the inquest of the victim was prepared and on 28.08.2015 her post mortem was conducted. Police was all around there. PW1 mother of the victim and PW2 father of the victim were there when postmortem was conducted. They brought the dead body back home. Why FIR was not lodged at that time. The question which was to be answered by the Police remains unanswered. In a cognizable case, when death was detected by throttling, why FIR was not lodged on their own by the Police? General diary entries at the relevant time, when inquest was prepared has not been filed? What information was given to the Police? The Police Officer, who prepared inquest has not been examined. This is first delay for which there is no reason or explanation. The second delay is on the part of the mother and father of the victim. Why did they not insisted for lodging of FIR when they saw the victim dead? Why did they not lodge FIR immediately thereafter? What made them to file application under Section 156 (3) of the Code? When was this application moved? Finally this application under Section 156 (3) of the Code filed by PW2 father of the victim was dismissed, on 16.12.2015, why immediately, thereafter, FIR was not lodged? There is an inordinate delay in lodging the FIR and delay has not been reasonably explained. Under the facts and circumstances of the instant case, it also doubts the prosecution case.
An argument has been advanced with regard to the rigor mortis, which was found by PW8 Dr. L.S. Tolia, when he conducted post mortem on 28.08.2015 at 12.10 PM. It is argued that if death had occurred in the early hours on 27.08.2015, rigor mortis would not have been present all over the body on 28.08.2015 at 12:10 noon.
It is true that according to PW8 Dr. L.S. Tolia at the time of post mortem on 28.08.2015 at 12:10 noon, rigor mortis was present all over the body. The doctor has also opined that duration of death was 12 to 24 hours. It means, according to the doctor, the death occurred sometimes after 12:00 noon on 27.08.2015. PW8 Dr. L.S. Tolia in his cross examination stated that rigor mortis appears after three hours of the death and it appears all over the body within 12 hours of the death. It remains for another 12 hours and then it starts disappearing.
There is an inquest report, which is proved by the mother of the victim PW1. According to which, the time of death was 5:15AM on 27.08.2015. PW11 Nirodh Adhikari informed the police about the death. He has stated about it. This fact has also been recorded in the inquest report. In his cross examination, PW11 Nirodh Adhikari states that the inquest was prepared at 7:00 in the morning. In fact, he has written the first page of the inquest report and according to him, the deceased was all alone in the house. The door was opened by the people. The dead body had cooled.
Insofar as the duration of rigor mortis is concerned, there is no specific duration of its appearance or disappearance. It varies from person to person and depends on other conditions also.
According to Modi's Medical Jurisprudence & Toxicology "in the voluntary muscles, rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected, are the small muscles of the fingers and toes. It passes off in the same sequence. The duration also varies from minimum three hours to forty hours."(22nd edition, Pages 229 and 235)
There is no reason to disbelieve the statements of PW1 mother of the victim, PW3 Arti and PW11 Nirodh Adhikari regarding time of death of the victim.
In the case of Umesh Singh Vs. State of Bihar, (2013) 4 SCC 360, Hon'ble Supreme Court, inter alia, held that "if medical and ocular evidence is contrary then ocular evidence must prevail."
The victim was, in fact, found dead in her house in the morning of 27.08.2015. So, there is variation about the duration of death, as stated by the witnesses and as stated by PW8 Dr. L.S. Tolia. But, it does not, in any way, affects the case. The evidence of PW8 Dr. L.S. Tolia is an opinion. This Court believes the statement of PW11 Nirodh Adhikari that the victim was found dead at 7:00 in the morning on 27.08.2015. She was cooled when inquest was prepared. As stated, his statement finds support by the statements of the mother of the victim and PW3 Arti.
FIR has inordinate delay in the case. The explanation for delay is not satisfactory. Statement of PW1 mother of the victim is not reliable. Statement of PW3 Arti is also not wholly reliable. State of PW2 father of the victim has not supported the prosecution case. The cause of death was not within the special knowledge of Mukesh. Therefore, on the basis of foregoing discussion, this Court is of the view that prosecution has not been able to prove the charges under Sections 302, 376(2) IPC and Section 6 POCSO Act against Mukesh. Learned Court below did commit error in convicting and sentencing Mukesh. Therefore, impugned judgment and order to the extent it convicts Mukesh under Section 302, 376(2) IPC and Section 6 POCSO Act and sentenced him under Section 302 and 376(2) IPC deserves to be set aside.
State has preferred appeal against the acquittal of Vikesh PW1 mother of the victim has stated that she was staying with the victim and Mukesh. The FIR also does not speak that Vikesh enticed or forcibly took the victim or her mother. PW3 Arti, who was a neighbor of Mukesh has also not supported the prosecution case to the extent that respondent Vikesh was staying with the victim and Mukesh. In fact, prosecution has not been able to prove that Vikesh was staying with Mukesh and the victim. Vikesh is not the resident of Rudrapur. Why should he stay with Mukesh? There is, in fact, no evidence against Vikesh. PW1 mother of the victim reached at the spot when the dead body was being taken away by the Police. PW3 Arti or PW11 Nirodh Adhikari have also not stated about presence of Vikesh. Learned court below has rightly discussed the evidence in respect of respondent Vikesh and concluded in paragraph 158 that Vikesh was not with Mukesh or the victim. The prosecution has not been able to prove the charges against Vikesh. Learned court below did not commit any error in acquitting Vikesh. Therefore, the appeal filed by the State deserves to be dismissed.
Criminal Appeal No. 45 of 2017 is allowed. The impugned judgment and order dated 30.01.2017/01.02.2017 passed in Special Sessions Trial No. 65 of 2016, State Vs. Mukesh and another, by learned FTC/Additional Sessions Judge/Special Judge, POCSO, Rudrapur, District Udham Singh Nagar is set aside to the extent it convicts Mukesh for the offence punishable under Sections 302, 376(2) IPC and Section 6 POCSO Act and sentenced him under Section 302 and 376 (2) IPC. Appellant Mukesh is also acquitted of the charges under Section 302, 376 (2) IPC and Section 6 POCSO Act.
Appellant Mukesh is in jail. He be released forthwith if not wanted in any other case, subject to his furnishing a personal bond and two sureties, each of the like amount to the satisfaction of court concerned under Section 437-A of the Code.
Government Appeal No. 69 of 2017 is dismissed.
Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.