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Gaj Raj vs State Of U.P. on 10 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Case :- CRIMINAL APPEAL No. – 295 of 2003

Appellant :- Gaj Raj

Respondent :- State Of U.P.

Counsel for Appellant :- Pramod Kumar Singh,Santosh Kumar Srivastava

Counsel for Respondent :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. The present appeal is directed against the impugned judgment and order dated 24.02.2003 passed by Ist Additional Sessions Judge, Faizabad in Sessions Trial No.404 of 1995 arising out of Case Crime No.93 of 1994 under Sections 376 and 323 I.P.C., Police Station Zaitpur, District Faizabad now Ambedkar Nagar.

2. Learned Trial Court had convicted the accused-appellant under Section 376 IPC and sentenced him to undergo 7 years rigorous imprisonment with fine of Rs.5,000/- and in the event of non payment of fine, 2 years additional imprisonment. He was further convicted under Section 323 IPC and sentenced to undergo one year rigorous imprisonment. It was directed that both sentences would run concurrently.

3. The prosecution story in brief is that the complainant had a shop for repairing bicycles. The accused-appellant had got his bicycle repaired from the complainant. The complainant’s wife on 04.07.1994 went to the house of the accused-appellant and ask for payment for bicycle repair. The accused-appellant told the complainant’s wife that he would give the payment for bicycle repair in the evening. It was said that on the same day, the complainant went to attend an invitation and at 05:30 P.M. his daughter aged about 22 years went to the house of the accused-appellant to demand the money for bicycle repair. At that time the accused-appellant and his daughter were present at the house. The accused-appellant’s took the daughter of the complainant (prosecutrix) inside the house. The prosecutrix went inside the house daughter of the accused-appellant closed the door from outside. The prosecutrix questioned the daughter of the accused-appellant why she had closed the door from outside. The accused-appellant attempted to rape the prosecutrix but she resisted. After sometime she fell on the floor and the accused-appellant put his foot on her neck and threatened to kill her. The prosecutrix got terrified and under fear the accused-appellant committed rape on the prosecutrix. After the door got opened, the prosecutrix came out crying from the house of the accused-appellant and went to her home. On the way she met Shekhawat Ali and when he asked the reason of her crying, she informed him about the incident. At that time, many people of the village got collected and heard the incident. Thereafter, the prosecutrix narrated the entire incident to her mother. The complainant came back to his village on 05.07.1994 at 8:00 P.M. and then his wife told him about the incident.

4. On the basis of aforesaid written complaint FIR, Exh.Ka-1 at Case Crime No. 93 of 1994 was registered at the Police Station under Sections 323 and 376 IPC. The investigating officer after completing the investigation filed the charge-sheet against the accused-appellant. Charge was framed against the accused-appellant under Sections 376 and 323 IPC. The accused-appellant denied the charge and claimed for trial.

5. P.W.-1, the complainant reiterated the contents of the complaint and proved the written report which was marked as Exh.Ka.1. He further said that the prosecutrix went alongwith him to the police station and from there she was sent for medical examination.

6. P.W.-2, the prosecutrix said that the accused-appellant was the resident of her village and before the date of incident the accused-appellant got his bicycle repaired from her father but he did not pay. When the incident took place at that time the accused-appellant and his daughter were present at their house and nobody else was present. She admitted that her marriage took place in village, Majruha and then divorce took place. She said that on the date of incident, it was around 5:30 P.M. when she went to take money from the accused-appellant for bicycle repair work done by her father. The accused-appellant went inside the house and his daughter asked the prosecutrix to come inside the house and take the money. Daughter of the accused-appellant took the prosecutrix inside the house and thereafter, she closed the door from outside and went out. She said that when she tried to open the door, she found it was closed from outside. The accused-appellant caught hold of her but she could get herself freed but thereafter, he took her forcibly at the courtyard inside the house and forcibly made her to lie on the ground and put her foot on her neck and threatened to kill her. Thereafter, he committed rape on her. As soon as the door got open, she came to her house. She said that on the way she met Shekhawat Ali and when she wanted to tell him about the incident many people came and after reaching the home she narrated the incident to her mother. On the date of incident her father was not present at the house. He came back at 8:00 P.M. and next day his father went to the police station and her medical examination as well as her X-ray was conducted.

7. P.W.-3, Dr. D.R. Bhavan said that on 08.07.1994 he was posted as Radiologist in the District Hospital, Faizabad and he conducted the X-Ray of wrist, knee, ankle etc., and found that all the elbows were joint by ephysis. On ossification test he found that the prosecutrix was around 17 years of age and he proved X-Ray plate etc.,

8. P.W.-4, Dr. Smt. Sushma Singh said that on 07.07.1994 she was posted at EMO at District Hospital, Faizabad and she conducted the medical examination of the prosecutrix on said date at 3:00 P.M. She did not notice any external injury on the body of the prosecutrix. Her hymen was old torn and healed. Vagina was loose and admitted two fingers easily. She proved the medical report, Exh.Ka-3. She said that she prepared supplementary report dated 09.07.1994. She said that the prosecutrix was used to sexual intercourse and no definite opinion regarding rape could be given. Age of the prosecutrix was found to be around 17 years.

9. P.W.-5, Const. Brajesh Singh proved the chik FIR, GD entry etc., which were marked as Exh.Ka-5 and Exh.Ka-6. P.W.-6, Ram Sharan Prasad who was posted as Sub-Inspector at the Police Station Zaitpur conducted the investigation of the case and proved the site plan (Exh.Ka-7) and he said that on 06.07.1994, he arrested the accused-appellant. After medical examination of the prosecutrix, he got the report only on 11.07.1994 and on 01.08.1994 he got the statement of the prosecutrix recorded under Section 164 Cr.P.C. and thereafter, on completing the investigation, submitted the charge-sheet (Exh.Ka-8).

10. P.W.-7, Dr. Vijay Kumar was examined. He said that on 07.07.1994 he was posted as Medical Officer in District Hospital, Faizabad and he conducted the medical examination of the prosecutrix who was found to be around 20 years at 4:05 P.M. and he found the following injuries on her body:-

“1. Abrasion of .5 cm x .3 xm on right side of face, .5 cm below the eyelid

2. Pain and contusion on left side of the back.

3. Pain and contusion on the index finger on the left hand.”

11. In the opinion of the doctor, these injuries were simple in nature and they could have been caused 2-3 days old and he proved the medical report (Exh.Ka-10) prepared by him.

12. The accused-appellant in his statement under Section 313 Cr.P.C. denied the allegations and said that he was falsely implicated because of enmity inasmuch as one Jialal Yadav of his village was murdered before the alleged incident in which family members of the prosecutrix and her father were the accused and the accused-appellant was the witness in that case. In that case Heera Lal had given the statement and his statement was to be recorded and to put undue pressure, he was falsely implicated.

13. Heard learned counsel for the accused-appellant and Sri S.P. Singh, learned AGA for the State.

14. Learned counsel for the accused-appellant has submitted that the prosecution story is wholly belied on any substance and was not proved by the evidence adduced by the prosecution. The prosecution had failed to prove the guilt of the accused-appellant beyond reasonable doubt.

15. Learned counsel submits that the evidence of the prosecutrix, P.W.-3 was full of contradictions and it could not be imagined the incident to have taken place in the manner described by the prosecutrix. He further submits that the prosecutrix was divorcée from his first husband and even with second husband she was not living with. He submits that no father could rape another girl with the assistance of his own daughter. Learned counsel submits that as per prosecution in this case daughter of the accused-appellant was instrumental in taking the prosecutrix inside the house and bolting the house from outside. Thereafter, leaving the prosecutrix to be alone to be raped by her father.

16. Learned counsel submits that even with this allegation, the daughter of the accused-appellant was not made the co-accused and, therefore, the whole story appears to be false and the accused-appellant was falsely implicated so that pressure was put on him not to give evidence against the accused in the case of murder of Jialal Yadav. Learned counsel further submits that in the medical examination doctor did not find any evidence of rape and the testimony of the prosecutrix could not get corroborated by the medical evidence.

17. Learned counsel further submits that the prosecutrix in her statement said that daughter of the accused-appellant after taking the prosecutrix inside the house went out of the house after bolting the house from outside and leaving her (the prosecutrix) alone with her father. She has further said that after the door was opened, she could come out of the house of the accused-appellant and went to her home where she narrated the incident to her mother. He submits that the prosecutrix did not tell that by whom and how the door got opened which was allegedly bolted by the daughter of the accused-appellant from inside. It is submitted that at one place the prosecutrix had said that the door got opened automatically. It is not possible door get opened automatically when it was bolted from outside by the daughter of the accused-appellant as alleged by the prosecutrix. The evidence of the prosecutrix does not inspire confidence. The testimony is neither credible nor trustworthy.

18. He further submits that the story set up by the prosecutrix is wholly unbelievable. The evidence of the prosecutrix is not credible and does not inspire confidence to get the accused-appellant convicted for offence under Section 376 IPC and, therefore, he submits that the impugned judgment and order passed by the Trial Court is liable to be set aside. The accused-appellant is liable to be acquitted of all charges.

19. On the other hand, learned AGA submits that the prosecution has been able to prove the case against the accused-appellant beyond reasonable doubt. He submits that there is minor discrepancy in the statement of P.W.-2 and the core of the prosecution case is that the accused-appellant committed offence of rape on the prosecutrix. Date, time and place were proved by the evidence of none other than the prosecutrix herself and the judgment and order passed by the learned Trial Court is not liable to be interfered with and the appeal is liable to be dismissed.

20. It is well settled that from the catena of judgment that in the case of rape, evidence of the prosecutrix is to be given predominant consideration but if the story set up by the prosecutrix bely the logic and the evidence of the prosecutrix does not inspire confidence and makes the prosecution story improbable, it would not be safe to convict the accused-appellant for the offence under Section 376 IPC. The Supreme Court of India in the case of Tameezuddin @ Tammu versus State (NCT of Delhi): 2009 15 SCC 566 has held as under:-

“it is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable.”

21. While appreciating the evidence in a case of rape the testimony of the prosecutrix has to be credible and reliable to convict the accused-appellant. However, if it is found that the testimony of the prosecutrix is not credible and reliable, the accused-appellant cannot be convicted for the offence under Section 376 IPC. The Supreme Court of India in the case of State of Rajasthan versus Babu Meena : (2013) 4 SCC 206 has held as under:-

“We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.”

22. Keeping in mind the aforesaid principles, it has to be seen that whether the testimony of the prosecutrix is worthy of credence and reliable on the basis of which it can be said that the prosecution had proved its case beyond reasonable doubt against the accused-appellant to hold him guilty for the offence under Section 376 IPC. The story set up by the prosecutrix that she was taken inside the house by the daughter of the accused-appellant and was left alone with her father to be raped as she left her inside the house and bolted house from outside is not convincing and no credence can be given to the story set up by the prosecutrix. Her testimony is also not consistent with respect to bolting the house and getting it opened. The medical evidence did not prove rape on her. Under these circumstances, I do not find that the prosecution was able to prove its case beyond reasonable doubt against the accused-appellant to hold him guilty for the offence under Section 376 IPC.

23. I, therefore, set aside the judgment and order passed by learned Trial Court and acquit the accused-appellant of charge under Section 376 IPC.

24. The appeal is thus, allowed. The bail bonds of the accused-appellant are cancelled and sureties are discharged.

Order Date:-10.05.2018

prateek

 

 

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