High Court of Allahabad

Kuldeep Vs. State of U.P.

MANU/UP/0915/2020

27.04.2020

Criminal

Projection of different story by prosecution adversely affects and destroys prosecution case and it is unsafe to convict accused on basis of same

Present criminal appeal has been filed against the impugned judgment passed by Additional Sessions Judge under Section 376, 308 of Indian Penal Code, 1860 (IPC), by which the accused-Appellant has been convicted and sentenced for ten years rigorous imprisonment and a fine of Rs. 50,000 has also been imposed.

The impugned judgment has been challenged on the ground that, the conviction and sentence has been erroneously awarded by completely misreading the evidence on record. The accused Appellant is innocent and he has been falsely implicated and the prosecution failed to establish the guilt against the accused appellant.

The learned trial Court has not considered the inconsistency, improvement and contradiction in the prosecution evidence. The prosecution has introduced and added new facts and story during evidence which makes the prosecution version improbable. In Ram Narain Popli v. CBI, and Vallabhaneni Venkateshwara Rao v. State of AP, it has been held that introduction of or addition of new story or projection of different story by prosecution adversely affects and destroys the prosecution case and it is unsafe to convict the accused and benefit of doubt should be given to accused. There is delay in lodging FIR and no attempt has been made by prosecution to explain the delay.

In rape cases, it is settled law that, delay in lodging FIR is not material and if the offence has been proved by cogent evidence, the same will be insignificant. In this case, three witnesses of fact including victim have not been able to prove prosecution version in a reliable and credible way and thus, the delay in lodging FIR goes to render additional ground to dislodge the prosecution case. The medical evidence adduced by prosecution is to the effect that the victim was under treatment for self inflicted injury. Thus, the medical evidence also does not corroborate the prosecution case and it does not rule out or improbabilize the defence version that the victim fell down from roof. In this case, the facts constituting the offence of attempt to culpable homicide and rape are so intermixed and inter-connected that one of them cannot be isolated from other.

The learned trial Court ignored the infirmities in prosecution version and prosecution evidence. There was variation, contradiction, inconsistency and improvement in the testimony of fact witnesses. PW-1 was not present at the time of occurrence and she lodged FIR on the seventh day on the basis of what was said to her by victim. Since, her son was in the knowledge of the incident and was well informed by the victim, she must have been told by her son about the incident. Her son and son in law could have lodged FIR. Therefore, the delay in lodging FIR assumes importance and creates doubt on prosecution version. The prosecution case of causing stabbed injury by knife to victim by accused has been found to be untruthful. Both the sides are relatives and the presence of accused there, if it is believed that he was there, cannot be said to be unnatural.

The evidence of prosecution witnesses is shaky, unnatural and untrustworthy and the learned trial court committed error in placing reliance on them. Thus, there is apparent perversity and illegality in the impugned judgment and the same is liable to be set aside and the accused is entitled for acquittal. The Criminal Appeal is allowed. The impugned judgment convicting and sentencing the accused for the offence under section 376/308 of IPC is set aside.

Relevant

Ram Narain Popli v. CBI, MANU/SC/0017/2003
, Vallabhaneni Venkateshwara Rao v. State of AP, MANU/SC/0859/2009

Tags : Conviction Evidence Credibility

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