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Karam Chand vs State Of U.P. on 19 February, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

AFR

Court No. – 15

Case :- CRIMINAL APPEAL No. – 221 of 2017

Appellant :- Karam Chand

Respondent :- State Of U.P.

Counsel for Appellant :- Dhananjai Kumar Tripathi,Ajey Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Rekha Dikshit,J.

1. This appeal assails the correctness of the judgment and order dated 3.02.2017 passed by Additional Sessions Judge / Fast Track Court-I, Bahraich in Sessions Trial No.226 of 1999, State versus Karam Chand, whereby the learned Additional Sessions Judge has convicted the appellant-accused Karam Chand and sentenced him to undergo 10 years imprisonment under section 376 I.P.C. and also to pay a fine of Rs.10,000/-, half of which shall go to the injured. If he fails to deposit the fine, he will undergo additional imprisonment for 2 months.

2. Narrated concisely, prosecution case against the appellant is that the complainant Kallu Ram lodged a written report on 19th March, 1997 before the Superintendent of Police, Bahraich, stating therein that the appellant Karam Chand, Siyaram and Sri Narayan have enticed away his daughter Geeta Devi in the intervening night of 17/18.3.1997 around 12 O’clock. He informed the police but no enquiry was made. His daughter took three items of jewelry (kardhan, golden nathuni and tika of gold) along with her. He is suspecting that the appellant will murder or sell her daughter after taking ornaments from her.

3. The FIR was lodged on 21st March, 1997 at 23 hour against Karam Chand, Siyaram and Sri Narayan as Case Crime No.248 of 1997, under Sections 363 and 366 IPC. On 29.5.1997 at around 11.30 a.m., the prosecutrix was recovered along with the appellant-Karam Chand at roadways bus station, recovery memo was accordingly prepared and the prosecutrix was medically examined.

4. The case was investigated by Sub-Inspector, Shri Ram Naresh Singh, who submitted charge sheet Exbt. K-8, under Section 376 IPC after completing investigation. Charge was framed against the appellant under Section 376 IPC by the trial court to which the accused-appellant denied and claimed trial.

5. To bring home the guilt of the appellant, the prosecution has examined as many as five witnesses.

6. P.W-1, Geeta, the prosecutrix has categorically stated that at the time of the said incident she was already married and was at the house of her father. On the said date at around 12 O’ clock in the night, she went out for natural call, where Karam Chand, Siyaram and Sri Narayan enticed her away, against her wishes and took her to Chitaura. It is further deposed that the accused-appellant Karam Chand used to commit rape on her without her consent. After a period of two months, the accused-appellant was taking her to Lucknow when she was arrested by the police at Bahraich bus station.

7. P.W.-2 Smt. Prema, mother of the prosecutrix, while substantiating the prosecution case, has proved the written report Exbt. K-1 made by her husband, the father of the prosecutrix, who had died 4-5 years before. She has also stated that her daughter Geeta came out from the house for natural call, but did not return back. When she searched for her, then later on she came to know that accused-appellant along with Siyaram and Sri Narayan, had enticed her away.

8. P.W.-3, Dr. Sugana Verma has proved medical report Exbt. K-2 of the prosecutrix and categorically stated her age to be around 20 years and further opined that nothing can be said regarding commission of rape against the body of the prosecutrix.

9. P.W.-4, Head Constable Muneendra Kumar Tripathi, has proved chik FIR Exbt. K-6 in his oral testimony and also proved entry in the G.D. of the said date.

10. P.W.-5, Paras Nath Tiwari, H.C.P. has proved site plan Exbt. K-7, Charge sheet Exbt. K-8 in secondary evidence deposed by him before the Court.

11. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C., who denied all of them and stated that he is a handicapped person and cannot walk without support. The prosecutrix came to him on her own, on which her mother got angry and lodged a report against him. It has been further stated that the prosecutrix accompanied him as per her own wish to Lucknow and stayed there for almost 1½ month with him.

12. The trial court held that the appellant committed the said incident and the prosecution established the circumstance, proving his guilt under section 376 I.P.C. and sentenced him to undergo imprisonment for a period of 10 years with fine of Rs.10,000/-. Aggrieved by the verdict of conviction, the appellant preferred this appeal.

13. Heard Sri Ajay Singh, learned counsel for the appellant, Sri G.D. Bhatt, learned AGA for the State and perused the record.

14. Learned counsel for the appellant submitted that the prosecutrix is a consenting party and she accompanied with the accused-appellant to Lucknow as per her own wish and stayed with him for a considerable period. The appellant has not used any force against her, as he himself is a handicapped person and was not in a position to participate in the alleged commission of crime. He has also pleaded that due to annoyance of the parents of the prosecutrix, he has been falsely implicated and an FIR has been lodged against him.

15. It has further been contended that there are only two witnesses of the fact, namely, P.W.-1, prosecutrix herself and P.W.-2, her mother. Both of them are closely related, as such, they come in the category of interested witnesses, as such their evidence is to be assessed with great caution and care. The informant of the instant case has died, as such, contentions of FIR were proved by P.W.-2, mother of the prosecutrix to substantiate the case of the prosecution. It is also submitted that there are a lot of discrepancies and material contradictions in the testimony of P.W.-1 and P.W.-2 which render their evidence unconvincing and unreliable.

16. Learned counsel for the appellant has drawn attention of the Court towards the medical report and testimony of the doctor concerned which categorically establishes the fact that the prosecutrix was major, around 20 years of age at the time of the incident and, no internal or external injury was found on her body which may even faintly support the commission of said incident.

17. Learned counsel for the appellant has referred a judgment of Hon’ble Supreme Court in the case of Deepak Gulati versus State of Haryana, Criminal appeal No.2322 of 2010, dated May 20, 2013 in support of his contention regarding consent of the prosecutrix.

18. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellant in the commission of crime in this case. The FIR version has fully been supported by medical and ocular evidence, based on the said evidence, the court below rightly convicted the appellant and the impugned judgment warrants no interference.

19. Considered the rival contentions of the parties and perused the record.

20. In the instant case, the prosecution case is that the prosecutrix was enticed away by the appellant in the intervening night of 17/18.3.1997 around 12 O’clock. As per allegations of FIR, the prosecutrix took some golden ornaments with her, due to which the complainant had apprehension that she will be killed after snatching of golden ornaments she possessed. After a period of two months, the prosecutrix was recovered from a bus station along with the appellant.

21. The foremost argument of learned counsel for the appellant relates to the age of the prosecutrix to establish whether she was major or minor at the time of incident. The medical report of the prosecutrix and the testimony of Dr. Sugana Verma establishes the fact that her age was about 20 years at the time of incident and in absence of any documentary evidence of her age, it may be concluded that the prosecutrix was of 20 years, a major as per radiological age at the time of incident.

22. Now, I advert to question whether the prosecutrix ever raised any grievance before any person, at any stage or she submitted to the will of the appellant probably due to fear of injury or life.

23. The prosecutrix was recovered from a busy bus station along with the appellant but even at that place there was no sign of any effort either to escape or raise an alarm by her. As per testimony of the prosecutrix (P.W.-1) herself, she was enticed away in the night around 12 ”O clock by three persons and she accompanied with the appellant on bicycle but there is no evidence which may indicate that she even made any effort to flee away or make any hue and cry. In this context, the version of FIR itself indicates otherwise as the informant mentioned in the FIR that her daughter/prosecutrix took some golden ornaments with her when she left the house. Later on P.W.-1 and P.W.-2 have come up with a different story of prosecutrix, coming out of the house all alone at mid night for natural call, where she was enticed away by the appellant. Since the complainant, who gave the written report was not alive, neither the theory of leaving the house with gold ornaments could be confirmed nor the fact as to how he came to know that who has enticed her daughter/prosecutrix away, as the written application was given by the complainant, on 19.3.1997.

24. The testimony of P.W.-2, mother of prosecutrix do not find any mention about the fact of knowing that it was the appellant who enticed her daughter away. The probability of prosecution story is that the appellant knew that the prosecutrix will come out of the house in the mid night for natural call on the fateful day, as such, he kept waiting for her outside, to entice her away, on the other hand, the FIR says that she left the house with gold ornaments. Now, the question is as to what is to be believed and on what premise. The truth can be either she left the house with ornaments on her own or she was enticed away by the appellant. In case of enticement, considerably important question is, as to how her parents came to know about the appellant enticing her away and how it co-incided that when she went out of the house at mid night for natural call, the appellant knowing this fact was waiting for her outside the house to entice her away. These unanswers questions do create a reasonable doubt in the prosecution story.

25. To conclude, the prosecutrix raised no grievance or alarm during the entire period of almost two months with the appellant, though she travelled to different places with him. If the element of fear or force was the reason, her medical should corroborate the same but it do not substantiate use of any sort of force to her at all. The truthfulness or reliability of her statement is highly doubtful which do indicate towards her consensual act. The prosecutrix was 20 years of age and had adequate intelligence and maturity, to understand the significance and morality associated with the act. In the instance, the submission of prosecutrix cannot be ruled out.

26. In view of the above, it is difficult to comprehend the circumstances in which the charge of rape can be levelled against the appellant. The reasons given by the trial court for conviction of the appellant does not appear to be sufficient enough to hold him guilty.

27. For all the reasons stated above, the appellant is entitled to the benefit of doubt. Therefore, the appeal succeeds and is allowed. The impugned judgement and order dated 3.2.2017 Passed by Additional Sessions Judge / Fast Track Court-I, Bahraich in Sessions Trial No.226 of 1999, under Section 376 convicting the appellant is hereby set aside and the appellant-Karam Chand is acquitted from the charges levelled against him.

28. The appellant-accused is in jail since 3.2.2017. He shall be released forthwith.

29. Let a certified copy of this judgment along with lower court record be sent to the Trial Court concerned for its compliance forthwith.

Order Date :- 19.2.2018

KR

 

 

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