HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 27
Case :- CRIMINAL APPEAL No. – 5787 of 2013
Appellant :- Ashish And Anr.
Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh
Counsel for Respondent :- Govt. Advocate
Hon’ble Mrs. Ranjana Pandya,J.
1. Challenge in this interest is to a visualisation and sequence antiquated 24.10.2013 upheld by a schooled Additional Sessions Judge, Court No. 6, Kanpur Dehat / Ramabai Nagar in Sessions Trial No. 468 of 2011 (State vs Ashish and others) outset out of Case Crime No. 328 of 2011, underneath Sections 376, 506 I.P.C., Police Station Bilhor, District Kanpur Nagar, whereby a indicted appellants Ashish and Baoua have been convicted and condemned to 10 years’ severe seizure and a excellent of Rs. 10,000/- any underneath Section 376(2)(g) I.P.C. with default stipulation. Out of a excellent so deposited by a appellants, a sum of Rs. 10,000/- was destined to be paid to a victim.
2. In brief compass, a box of a assign as unfolded by a assign is that on 03.08.2011, an focus was changed by Surendra Tiwari, to a District Inspector General of Police, Kanpur, Exhibit Ka-1 to a outcome that when his daughter was alone in a house, during that time informal musslemen Baoua, Ashish and Rinku had forcibly committed rape on her and also threatened her to kill if she told this matter to anyone. She is underneath fear. On being pregnant, a indicted are perplexing to get her aborted. When he attempted to go a military station, indicted stop him in a way. On a basement of a aforesaid created news and on a sequence of Deputy Inspector General, a Station Officer, Bilhor, has prepared Chik FIR opposite a indicted Ashish, Baoua and Rinku during box crime No. 328 of 2011, underneath Sections 376 and 506 I.P.C. during 05:05 P.M., Exhibit Ka- 4, that was entered into GD, Exhibit Ka-5.
3. After a registration of a case, Station Officer, Santosh Kumar Tiwari, PW-10 has available a matter of a plant and got a plant medically examined. He also perceived medical report, extra news and certificate per age of a victim. On a indicating out of a informant, he prepared a site devise as Exhibit Ka-13. On 11.08.2011, he arrested a indicted Baoua and available his statement. He also got a matter of a plant available underneath territory 164 Cr.P.C. Thereafter, a Investigating Officer has been eliminated and a remaining review was conducted by S.I., Nagesh Upadhyay, PW-7. This declare on 26.08.2011 and 13.09.2011 arrested a remaining indicted Ashish and Rinku and available their statements. After completing a compulsory formalities, on a basement of sufficient evidence, a Investigating Officer has submitted a assign piece opposite a indicted persons underneath Sections 376 and 506 I.P.C., Exhibit Ka-10.
4. However, as a indicted Rinku was found juvenile, his box was distant and referred to a Juvenile Justice Board.
5. To move home a shame of a accused, a assign has examined as many as 10 witnesses. PW-1 is Surendra Tiwari, a adviser and a father of a victim. PW-2 is a plant of a case. PW-3 is Dr. Jai Singh. PW-4 is Constable Santosh Kumari. PW-5 is Dr. Anita Singh, who has medically examined a victim. PW-6 is Dr. R.C. Bhatt. PW-7 is S.I., Nagesh Upadhyay, a second questioning officer. PW-8 is Dr. Jaswant Ratnakar. PW-9 is Head Constable Indra Lal. PW-10 is Santosh Kumar, a initial questioning officer.
6. PW-1, Surendra Tiwari is a adviser and father of a victim. He deposed that his mom has expired. He has dual children, one daughter and a son. At a time of occurrence, a plant was aged 15 years. At a time of occurrence, he and his son had left to see Ramleela. His daughter was alone in a house. On that night, 3 persons had come to his house, whose names are Baoua, Ashish and Rinku. The indicted persons are his neighbours. All a 3 indicted persons committed squad rape on his daughter forcibly. This occurrence was not told by a plant to anyone as a indicted had given her hazard that they will kill her hermit and father if she narrates this matter to anyone. Due to fear, his daughter did not tell this fact to anyone. After about 5 and a half months, when there was a gossip in a locality and encampment that a plant is pregnant, afterwards he enquired about this fact from a victim, who narrated a occurrence and told that indicted had committed rape on her. Thereafter, he reported this matter to a DIG, who upheld an sequence for registration of a case. This declare has valid a created news as Exhibit Ka-1.
7. PW-2 is a plant of a case. She deposed that she has one brother. Her mom has expired. On a date of incident, her hermit and father had left to see Ramleela. On that day, she was alone in a house. At that time Ashish, Baoua and Rinku entered into her house. They held reason of her and committed rape on her opposite her wishes. This declare recognized a indicted Ashish and Baoua in Court. This declare serve settled that while a indicted persons were committing rape, they did not concede her to cry. They threatened that they will kill her father. Due to fear she did not divulge this occurrence to anyone. The indicted clandestinely wanted to get her aborted. They prevented her and her father from camp a news and stopped them on a way. Her father seemed before a DIG and narrated a occurrence to him, who sent her father to Mahila Thana, where news was lodged. After camp of a report, her medical conference was got conducted and also got her matter available before a Magistrate underneath Section 164 Cr.P.C, that was valid by a plant as Exhibit Ka-2.
8. PW-3 is Dr. Jai Singh, who deposed that on 09.08.2011, he was posted as C.M.O., Kanpur Nagar. Victim was sent to him by Station Officer, Bilhor by lady Constable Sarojini Yadav, Police Station Bilhor. She was sent for a cat-scan of elbow, wrist, clavicle and ilia crest. As per a news of a Radiologist, a age of a plant was found to be 16 years. This declare has prepared a news underneath his scratch and signature as Exhibit Ka-3.
9. PW-4 is Constable Santosh Kumari, who was posted during Mahila Thana, Kanpur Nagar. She deposed that on 03.08.2011 during 5.00 P.M., she perceived a focus of a adviser by post mentioning therein that a indicted Ashish, Baoua and Rinku committed squad rape on a plant forcibly and also threatened her to kill. That focus gimlet a signature of DIG. On that application, there was an sequence of a Circle Officer directing a Station Officer, Mahila Thana to register and inspect a matter, on a basement of that a box during box crime No. nonexistence of 2011 underneath Sections 376 and 506 I.P.C. was purebred on 03.08.2011 during 5.05 P.M. This declare has serve settled that she prepared a chik FIR and duplicate of GD underneath her scratch and signatures, as Exhibits. Ka 4 and 5.
10. PW-5 is Anita Singh. She deposed that she was posted during AHM, Hospital, Kanpur Nagar as Consultant. She has medically examined a plant on 03.08.2011 during 7.45 P.M., who was brought by lady Constable Guddi Devi and Homeguard Ram Janki. On inner conference she found that there was no damage on any partial of a body. Hymen was aged ripped and healed. She prepared dual slides of vaginal allegation of a plant and sent a same to a Pathologist of Ursala Hospital. For ascertaining a age, a plant was referred to a CMO, Kanpur Nagar. X-ray and ultrasound of a plant was finished during UHM/AHM Hospital. As per a news of a Pathologist, no spermatozoa was found. As per ultrasound report, there was a fetus in a womb. The conduct of fetus was upside. Ample H2O was benefaction in a uterus. Movement was normal. Medical report, Exhibit Ka-6, slides anxiety slip, Exhibit Ka-7 and extra medical news Exhibit Ka-8 were prepared by this declare underneath her scratch and signatures.
11. PW-6 is Shri R.C. Bhatt. He deposed that on 04.08.2011 he was posted as Senior Consultant Radiology during UHM Hospital, Kanpur Nagar. On that day Homeguard Nirmala, had brought a plant for x-ray, who was referred by a CMO, Kanpur Nagar. The cat-scan of a plant was finished underneath his supervision. This declare has serve settled that Elbow corner was fused. Wrist and iliac design and clavicle skeleton were not fused. This declare has valid cat-scan news as Exhibit Ka-9.
12. PW-8 is Dr. Jaswant Ratnakar, who was posted as Radiologist during PHM Hospital. He deposed that on 10.08.2011, he has finished a ultrasound of a victim. He has settled that there was a fetus of 26 weeks in a womb. The approaching date of smoothness was 16.11.2011, that might change possibly way. The plant was brought by lady deputy Sarojni. This declare has serve settled that he has prepared a ultrasound news Exhibit Ka-11 on a basement of ultrasound film element Exhibit Ka 4.
13. PW-9 is Head Constable Indra Lal. He deposed that on 5.8.2011, he was posted as Head Muharrir during military hire Bilhor. On that day, a chik FIR was perceived by a Station Officer by post from a Mahila Thana during Case Crime No. Nil of 2011, underneath Sections 376, 506 I.P.C. On a instruction of a Station Officer Case Crime No. 328 of 2011 was registered, that was entered in a GD on 05.08.2011 during 7.30 P.M. This declare has valid a duplicate of a GD as Exhibit Ka-12.
14. The justification of PW-7 S.I., Nagesh Upadhyay and PW-10 S.O., Santosh Kumar Tiwari has already been discussed above.
15. After a tighten of a assign evidence, a statements of a indicted were available underneath territory 313 Cr.P.C., in that they have denied a occurrence and claimed to be tried. They have constructed 5 witnesses in their defence. DW-1, Sudha, a mom of a accused, DW-2, Satish Chandra, DW-3, Ram Agnihotri, DW-4 Navneet Mishra and DW-5 Ramakant.
16. DW-1 is Sudha, a mom of a accused. She deposed that a name of father of a plant is Surendra Tiwari. He lives in her village. The age of a victim, when her mom died was about 8 years. Surendra Tiwari was unreasoning drunkard. The plant has told this declare that her father creates earthy propinquity with her. She also told this declare that she is pregnant. This declare has told this fact to some other women of a village. Prior to this, a plant once also got pregnant. As this declare has told a other ladies of a encampment about a bootleg earthy propinquity of Surendra Tiwari with his daughter, being enraged, Surendra Tiwari has secretly endangered her 3 sons in this incident.
17. DW-2 is Satish Chandra, who deposed about a earthy propinquity of Surendra Tiwari with her daughter.
18. DW-3 is Ram Agnihotri, who also deposed about a earthy propinquity of Surendra Tiwari with her daughter.
19. DW-4 is Navneet Mishra, who deposed that nonetheless Surendra Tiwari is unreasoning drunkard, though he denied about any earthy propinquity of Surendra Tiwari with her daughter.
20. DW-5 is Ramakant, who deposed that Surendra Tiwari is unreasoning drunkard. This declare has serve settled that he listened that Surendra Tiwari is carrying earthy propinquity with her daughter, though he does not have any personal believe about this fact.
21. After conference a schooled warn for a parties, a schooled reduce justice convicted and condemned a indicted as settled in para 1 of a judgement.
22. Feeling aggrieved, a indicted have come adult in appeal.
23. Heard Shri Kamal Krishna, schooled warn for a appellants, schooled Additional Government Advocate for a State-respondent and perused a reduce justice record.
24. Learned A.G.A. has submitted that a commentary of a fact available by a hearing justice is formed on justification of a prosecutrix and that no certification is compulsory when a testimony of a prosecutrix is clear, reasoning and convincing. He has serve contended that there is zero to uncover that a prosecutrix has secretly endangered a accused. Thus, a interest is probable to be dismissed.
25. It has been submitted on interest of a appellants that there is lavish check in camp a initial information report, inasmuch as a date and time of a occurrence is not known, given a news was lodged on 03.08.2011 during 1705 hrs. But there is check given as per a chronicle of a victim, she became pregnant. Obviously, she would have had passionate family most before to a date of occurrence though news was lodged after her pregnancy that casts a shade of doubt on a assign case.
26. Per contra schooled A.G.A. has submitted that in a cases of rape, a check in camp a initial information news is not of most effect given repute of a family is during stake. Therefore, a lavish check in camp a initial information news opposite a appellants is deadly to a assign case. This critical aspect per lavish check in camp a initial information news not usually make a assign box extraordinary to accept though a reasons and observations finished by a hearing justice in a impugned visualisation is unconditionally illogical in law and a same can't be accepted. Thus, there is lavish check in camp a initial information report, that casts a shade of doubt on a finish assign case.
27. It is hackneyed law that in cases of rape, if a testimony of a prosecutrix is arguable and trustworthy, a Court does not hunt for support from any evidence. In (2009) 15 Supreme Court Cases page 566, Tameezuddin @ Tammu vs. State of (NCT) of Delhi, in that it has been laid down that it is loyal that in a box of rape a justification of a prosecutrix contingency be given supposed consideration, though to reason that this justification has to be supposed even if a story is extraordinary and belies logic, would be doing assault to a really beliefs that oversee a appreciation of justification in a rapist matter.
28. Keeping in perspective this aspect of a matter, we would inspect a matter of a plant PW-2 in that she has settled that all a 3 indicted are genuine brothers. Although, it is unfit though in ethereal family like genuine brothers, it would be intensely formidable for 3 genuine brothers to rape one lady concurrently or one after a another during a same spot. The plant has settled that due to fear, she did not recount a occurrence of rape committed by Baoua, Ashish and Rinku to anybody given they had threatened to kill her. She has serve settled a indicted wanted to get her aborted. She has subsequently certified that she gave a birth to baby lady who is in a orphanage. She has settled that on a date of occurrence, her father and hermit had left to see Ramleela. She was alone in a house. Baoua, Ashish and Rinku entered her residence and raped her. Like all a witnesses, this declare has too had bear a exam of cross-examination, in that she suggested a new fact observant that even before to this incident, she was raped by Baoua, Ashish and Rinku that was before 10 to 15 days back. But she has settled this initial occurrence to a Magistrate. The matter of a plant was available underneath Section 164 Cr.P.C. is Exhibit Ka-2, in that she has settled that Baoua, Ashish and Rinku came to her house. They tied her mouth with Dupatta and raped her. This was finished during a Navratri and even 2 to 3 days before to a Navratri Ashish and Rinku had raped her. If a month of Navratri is calculated, generally it is in a month of April. Thus a date of occurrence, if calculated, comes to a initial week of April. But when this declare was medically examined by Dr. Anita Singh whose medical news is Exhibit Ka-11 on 10.08.2011, a plant was found 26 weeks pregnant. Meaning thereby, she was profound for about 6 months and dual weeks that does not total with a time settled by a plant who has attempted to give an alleviation by observant that she was apparently also raped by a indicted persons. If as per a chronicle of a victim, she was raped somewhere in Apr 2011, a reign of pregnancy would have been around about 4 months and not 6 and half months. Thus, a whole assign story falls like a store of cards.
29. Coming to a matter of a victim, she has serve settled that she was raped 10 to 15 days before also was not suggested by her in her examination-in-chief. Thus, a matter of a plant PW-2 conjunction inspires certainty nor is estimable of faith and infact is untrustworthy.
30. As distant as a matter of PW-1, a father of a plant is concerned, he has settled that his daughter was raped when he had left to see Ramleela. She was raped by Baoua, Ashish and Rinku though his daughter did not exhibit a occurrence to anybody, given when was threatened. When rumors flew around a encampment that a lady was 5 and half months pregnant, afterwards he asked a lady and afterwards she narrated a occurrence to her father. Obviously, this is something that could not have been dark by a lady as one day or a other her earthy coming would also have suggested a whole picture. He has settled that when he used to go to a military hire to surprise a police, a indicted used to stop him on a way. This reason is not palatable. The father of a plant has settled that a plant gave birth to a baby girl, in a orphanage. It is usually a victim, who could know that who is a father of a baby girl. It is bizarre as to because a plant kept silent for 5 to 6 months and did not suggested this fact to any of her family members creates a shade of doubt on a assign case. Even if a plant was not carrying mother. There was no reason because she could not told her nearest relations lady or even to her father given her celebrity was shattered. PW-1 Surendra had certified that a neighbourers used to take a lady here and there for check adult and used to take odds. He has also certified that one Ram Agnihotri took her lady to take some eatable though he never asked Ram Agnihotri because he used to take her lady though his permission. The villagers told him about pregnancy of a lady though who told him, he does not remember. But in a subsequent breath, he pronounced that a sister-in-law (Bhabhi) of a lady told him. He was told about a occurrence a integrate of days before camp a initial information report, afterwards he asked his daughter. A new speculation was introduced by this declare who has settled that all a 3 indicted i.e. Baoua, Ashish and Rinku had muffled there faces and entered her residence though she could commend them from their voices. When a plant was privately asked, she settled that baby lady was born. The father of a baby lady was possibly Ashish or Baoua. The child would possibly of Baoua, Ashish or Rinku. Her father would be usually one man. Thus, a plant herself is confused.
31. Learned A.G.A. has submitted that a age of a plant as per a medical is about 16 years, hence she is teenager though we think, given a matter of a plant herself is not reliable, no useful purpose would be solved by entering into a factum of age.
32. Thus, on what has been pronounced and discussed above, we find that a justification of a witnesses have vital contradictions and a assign story is shaky, unreliable, not estimable of credence. Thus, a assign has miserably unsuccessful to infer a box opposite a appellants and a interest is probable to be allowed.
33. Accordingly, a interest is allowed.
34. The impugned visualisation of self-assurance and visualisation antiquated sequence antiquated 24.10.2013 upheld by a schooled Additional Sessions Judge, Court No. 6, Kanpur Dehat / Ramabai Nagar in Sessions Trial No. 468 of 2011 (State vs Ashish and others) outset out of Case Crime No. 328 of 2011, underneath Sections 376, 506 I.P.C., P.S. Bilhor, District Kanpur Nagar is hereby set aside.
35. The appellants namely Ashish and Baoua are in jail. They might be expelled forthwith in this case. However, a appellants are destined to approve with a sustenance of Section 437-A Cr.P.C.
36. Let a duplicate of this visualisation be sent to a hearing justice concerned.
Order Date :- 08.04.2016