Penal Code, 1860 – S. 376 – Rape – Reliability of the statement of victim – Prosecutrix has been changing her version again and again which makes her testimony unreliable and unworthy of credence. Thus the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellant and the appeal is liable to be allowed.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. – 3018 of 2015
Appellant :- Kishor Respondent :- State Of U.P. Counsel for Appellant :- Salman Ahmad Counsel for Respondent :- Govt.Advocate
Hon’ble Mrs. Ranjana Pandya,J.
1. This appeal has been preferred against the conviction and sentence passed against the order dated 30.06.2015, passed by Additional Sessions Judge / F.T.C., Jalaun at Orai, in S.T. No. 113 of 2012 (State vs. Kishor), arising out of Case Crime No. 52 of 2012, under Sections 323, 504, 506,376 I.P.C. and S.T. No. 124 of 2012 (State vs. Nripati), arising out of Case Crime No. 52 of 2012, under Sections 323, 504, 506 I.P.C., Police Station Kotra, District Jalaun, whereby the accused Kishor was found guilty and sentenced to 10 years’ rigorous imprisonment and fine of Rs. 3000/-, under Section 376 I.P.C.; 1 year rigorous imprisonment along with fine of Rs. 5000/- under Section 504 I.P.C and 7 years’ rigorous imprisonment along with fine of Rs. 2000/- under Section 506 I.P.C. with default stipulation, whereas accused Kiran and Nripati were acquitted for the charges framed against them.
2. Filtering out the unnecessary details, the prosecution case in brief is that an application under Section 156(3) Cr.P.C. was moved before the C.J.M., Orai, which was directed to be registered as a criminal case and investigation was ordered. As per the application i.e. Exhibit Ka-1, the elder daughter of the informant was married in village Barsaar, Police Station Kotra, District Jalaun to Nripati son of Chaturbhuj. Three months prior to 26.07.2011, the brother-in-law (Devar) of Kiran came on motorcycle to the house of the informant and told that Kiran was seriously sick and the victim was called by her. The informant sent his 16 years’ old daughter with Kishor. After that 4-5 times, the informant went to the house of his daughter but Kishor, Chaturbhuj and Ramwati did not let him meet with his daughter and did not make him to see his elder daughter too. On 10.05.2011, the informant along with Pappu Chamar, the wife of the informant Munni and Gokul went to Barsaar. At this Kishor, Chaturbhuj, Ramwati, Nirpati and Kiran told that the victim had eloped from their house. The informant and his companions heard the sound of weeping of the victim, at this, they entered the house of the accused and found the victim locked in a room. When she was taken out, the accused persons started to assault the informant and his companions. The matter was complained to the Police Station Mandichowki. Out of shyness, on that date, the victim did not told anything to anybody that she had been forcibly detained and locked in a room for 3 months and was continuously raped by Kishor for 3 months. Kishor threatened to kill the victim and also threatened to set her to fire. Whenever, she tried to raise alarm, she was shown country made pistol. The informant sent the information about complete incident by registered post to the S.P. He also himself appeared before the S.S.P., Orai, who directed the police personnel of Police Station, Kotra to look into the matter. On 17.05.2011, when the informant along with his daughter and other companions reached the Police Station, Kotra, he was told that the case would be registered and the accused persons would be arrested on the next day. The informant received a telephone call stating that he should bring the victim to the police station and the accused had been arrested. On 19.05.2011 at 10:00 A.M., the informant along with his wife, victim and many other people went to the police station. The incharge of the police station pressurized the informant to compromise the matter. The informant and his companions were badly beaten and the caste relating abusive words was also uttered and he was forced to sign the compromise written by his son-in-law Nripati. The police personnel forcible put the thumb impressions of the mother of the victim namely Munni on the compromise letter. The victim and the informant were also forced to put their signatures on the compromise letter and they were threatened that if they would proceed with the matter then many cases would be slapped on them. There were many political leaders leading to the BJP and Congress who were sitting in the police station. Nripati was saying that he had influenced over the Kotra police. At this the informant sent a registered application to S.P., Jalaun, Orai on 01.06.2011 but no action was taken into the matter. Hence, the application under Section 156(3) Cr.P.C. was moved.
3. Dr. Sunita is PW-3, who conducted the medical examination on the victim. She did not find any external or internal injury on the body of the victim. She proved the medical report as Exhibit Ka-3. Smear slides were prepared for pathological examination and the victim was sent for age determination test on which supplementary report was produced. This witness proved the supplementary report as Exhibit Ka-4. Constable Clerk Rakesh Pratap Singh, PW-4, prepared the chik report. He proved the chik report as Exhibit Ka-5. Further, this witness scribed the G.D., whose copy was proved by this witness as Exhibit Ka-6. The investigation was entrusted to A.K. Singh, S.I. On 07.02.2012. He inspected the spot on 09.02.2012. He recorded the statements of Munni Devi, the victim, witness Rinku Singh and Radha. On 10.02.2012, he recorded the statement of lady Constable Shabnam, Alka Dwivedi, copied the medical report in the case diary. He further recorded the statements of doctor and Pinki. On 14.02.2012, the statement of all the accused persons were recorded. Thereafter, the investigation was transferred to Brijraj Singh. This witness proved the charge sheet submitted against all the accused-persons as Exhibits Ka-7 and Ka-8. Further, this witness proved the site plan prepared by him and proved it as Exhibits Ka-9 and Ka-10.
4. Besides these witnesses, the prosecution also proceeded to examine Babu PW-1, who is the informant, who proved the application submitted under Section 156(3) Cr.P.C. as Exhibit Ka-1. PW-2 is the victim, who proved her statement recorded under Section 164 Cr.P.C. as Exhibit Ka-2. PW-5 is Munni Devi, who is the mother of the victim and wife of the informant. She has stated about the occurrence as to how she went to the house of the accused to bring back her daughter. After examining as many as six witnesses, the prosecution has closed its evidence.
5. The statement of the accused persons were recorded under Section 313 Cr.P.C., in which all the accused persons denied the occurrence. Further, the accused appellant, in question, Kishor has stated that there was dispute between his sister-in-law and her father (informant) regarding jewellery, hence he also had been falsely implicated. However, no evidence in defence was adduced.
6. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment.
7. Feeling aggrieved, the accused has come up in appeal.
8. Heard Sri Salman Ahmad, learned counsel for the appellants, learned Additional Government Advocate for the opposite party and perused the lower court record.