1. Challenge in this appeal is to the judgment and order dated 30.07.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Court No. 1, Mirzapur in Sessions Trial No. 372 of 2002 (State vs Doctor alias Vinod Kumar and others) arising out of Case Crime No. 135 of 2002, under sections 363, 366, 368, 376, 342 IPC, Police Station Vindhyachal, District Mirzapur, whereby the accused appellants Doctor alias Vinod Kumar and Collector alias Basant Lal have been convicted and sentenced to ten years' rigorous imprisonment and a fine of Rs. 5000/- each under section 376(2)(g) IPC. The accused appellants Doctor alias Vinod Kumar, Inspector alias Pramod Kumar, Brij Lal, Titil alias Jhallar, Ram Savari Devi and Amrit Lal have been convicted and sentenced to seven years' rigorous imprisonment and a fine of Rs. 5000/- each under sections 366, 368 IPC. Further, the accused Doctor alias Vinod Kumar, Inspector alias Pramod Kumar, Collector alias Basant Lal, Titil alias Jhallar and Heeravati Devi have been convicted and sentenced to ten years' rigorous imprisonment and a fine of Rs. 5000/- each under section 394 IPC. However, all the sentences were directed to run concurrently. In default of deposit of fine, accused shall further undergo two years' simple imprisonment each under sections 376(2)(g) and 394 IPC. In default of payment of fine under sections 366, 368 IPC, the accused shall further undergo imprisonment of one year each. All the accused except Heeravati Devi have been convicted and sentenced to six months' simple imprisonment under section 342 IPC. The period already undergone shall be adjusted while counting the period of sentence.
However, all the accused have been acquitted under section 363 IPC.
2. Filtering out the unnecessary details, the case of the prosecution is that the informant Salgam, son of Bilari has handed over a written report to the police station Vindhyachal, district Mirzapur scribed by Ramesh Kumar Singh, son of Jang Bahadur Singh to the effect that the informant is the resident of village Kalna Dubey, police station Vindhyachal. His daughter aged about 16 years has been enticed away by Doctor, son of Brij Lal Chamar, who resides in the same village at 2.00 p.m. when he and his wife were not at home. His younger daughter Manju was present at the house. The accused has also taken away Rs. 7,000/- and some ornaments, which he kept for the marriage of his daughter, the victim. In this incident, there was conspiracy of Brij Lal and Sanwariya Devi. They had the knowledge as to where Doctor has taken away his daughter, but they did not tell anything on his asking and even quarrelled. On the basis of the said written report, a case under sections 363, 366 IPC was registered on 22.5.2002 at case crime No. 135 of 2002 at police station Vindhyachal, district Mirzapur against the accused Doctor, Brij Lal, Pappu, Collector and Sanwariya Devi.
3. After registration of the case, the investigation of the case was entrusted to S.I., Vinod Kumar Sharma. He deposed that on 23.05.2002 he was In-Charge of police Chauki Gaipura. The investigation of case crime No. 135 of 2002 was conducted by him. First of all he copied the chik report in the case diary and recorded the statement of the chik writer. On the pointing of the informant, he inspected the spot and prepared site plan, which he proved as Ext. Ka-3. Thereafter, the investigation was transferred to S.I., D.N. Rai. PW-5, S.I., D.N. Rai, after the case was transferred to him, perused the earlier papers, recorded the statements of Smt. Kalui, Mathura and Phool Chandra. On 28.05.2002, he recovered the abductee and the accused. At the time of recovery, S.O., R.K. Singh was present. He prepared the recovery memo, which was also signed by this witness. After the recording of the statement of the victim, Sections 376, 342 and 368 IPC were also added. Thereafter, statements of accused Doctor alias Vinod, Brij Lal, Inspector alias Pramod, Amrit Lal, Titil alias Jhallar were recorded. Site plan of place of recovery was prepared and proved as Ext. Ka-6. On 29.05.2002, the medical report of the victim was copied in the case diary and the victim was handed over to her father and prepared the Supurdaginama, which was proved as Ext. Ka-7. On 01.06.2002, the statement of the victim was recorded under section 164 Cr.P.C. After completing the investigation, the charge sheet was submitted against the accused under sections 363, 366, 368, 342, 376 IPC, which he proved as Ext. Ka-8.
4. In support of its case, the prosecution has examined as many as seven witnesses. PW-1 is the victim of the case. PW-2 is Salgam, the informant and father of the victim. PW-3 is S.I., Vinod Kumar Sharma. PW-4, Dr. Indu Kannaujiya, Consultant, Moti Lal Nehru District Hospital, Allahabad. PW-5 is S.I., D.N. Rai (retd). PW-6 Head Constable, Umesh Kumar Pandey and PW-7 is Constable Paramhans Ram.
5. PW-1 is the victim of the case. She deposed that on 19.05.2002 at 12.30 noon, she was at her house. In one Jeep, Doctor alias Vinod, Inspector alias Pramod and Doctor's mother Sanwariya came. Sanwariya told her that her father had met with an accident and asked her to accompany them. This witness had gone inside the house and after taking Rs. 7,000/- and one chain of gold, she sat on the Jeep with them. This witness has further stated that she took the money because money will be required for the treatment. Mother was not present at home. They reached Pakka bridge, Mirzapur. When they began to cross the Ganga bridge, then this witness has asked them as where they are taking her. On that, they replied that your father is admitted in the hospital of Darwasi village. At about 4.30 p.m., they took her to the house of Titil, who was the resident of Darwasi village. They closed her in a room. In the evening, Doctor, his aunt (mausi ) Heerawati and Heerawati's husband Collector and Titil came in the room and demanded money from her. When she refused to give money, then Doctor shown knife and Collector shown country made pistol to her and Titil slapped her twice and snatched away the money. The money was kept in the bag. Sikri was also in the bag. They snatched the bag. Thereafter, they locked the door from outside. Thereafter, Doctor and Collector came in the room and administered one tablet to her due to which she got intoxicated. Doctor came out and shut the door and thereafter Collector committed rape on her forcibly. She cried and wept, but he did not listen. Both of them forcibly committed rape on her. In the morning, one person has taken her photograph after getting her sat along with Doctor. She was kept confined for about four days there. Thereafter, they took her to village Darwasi by Doctor, Collector and Titil, where she was kept confined and threatened by them that if she will make any cry, they will cut her into pieces. This witness has further stated that she was taken to Kamal Bind by Doctor, Inspector, Titil, Brij Lal, Amrit Lal and Kamla. When the accused was arrested, police made recovery memo, which she proved Ext. Ka-1. This witness has further stated that her medical examination was done at Government Hospital, Mirzapur.
6. PW-2 is Salgam, the father of the victim and the informant of the case. He reiterated his versions given in the written report. This witness has further stated that he got the written report lodged after getting the same scribed by Ramesh Singh, which he proved as Ext. Ka-2.
7. PW 4 is Dr. Indu Kannaujiya, Consultant, Moti Lal Nehru, District Hospital, Allahabad. She deposed that on 29.05.2002, she was posted as District Women Hospital, Mirzapur as Medical Officer. She has medically examined the victim at 1.10 p.m., who was brought by lady Constable 106, Dulari Patel. This witness has stated that the hymen of the victim was old torn, no blood was oozing from there. Her vagina admits two fingers easily. She further prepared two slides of victim's vaginal smear and for determination of her age, x-rays of right shoulder, wrist and elbow were advised. This witness has proved the medical report as Ext. Ka-4. X-ray report was prepared by Dr. H.V. Rai on 29.05.2002, which was produced before this witness. Report of vaginal smear slide test was also produced before this witness, which are paper Nos. 3A/13 and 3A/14. After the perusal of both the reports, this witness has prepared supplementary medical report on 10.06.2002 under her handwriting and signature vide paper No. 3A/15. As per the supplementary report no spermatozoa was seen in the vaginal smear. As per x-ray report epiphysis bones of shoulder, elbow and wrist were fused. This witness has further opined that no definite opinion about rape can be given. The age of the victim was above 18 years. This witness has proved the supplementary report as Ext. Ka-5.
8. PW-6 is Head Constable, Umesh Kumar Pandey. He deposed that on 22.05.2002, he was posted at police station Vindhyachal. On that date, on the basis of the written report of the informant Salgam, he prepared chick report No. 54/02 at 18.30 hours and registered the case under sections 363, 366 IPC at case crime No. 135 of 2002, which he proved as Ext. Ka-9.
9. PW-7 is Constable Paramhans Ram. He deposed that on 22.05.2002, he was posted at police station Vindhyachal. On that date case crime No. 135 of 2002, under section 363, 366 IPC was registered at 6.30 p.m. by Head Muharrir, Umesh Pandey, which was entered in the GD by this witness, which he proved as Ext. Ka-10.
10. The evidence of PWs 3 and 5, namely, S.I., Vinod Kumar Sharma and S.I., D.N. Rai has already been discussed above.
11. After close of the prosecution evidence, the statements of the accused under section 313 Cr.P.C. were recorded, in which they denied the occurrence.
12. Accused Pramod Kumar has stated that he has been falsely implicated as he is the brother of Vinod. In fact Doctor alias Vinod was enticed away by the victim herself and married him. Thereafter, on the instigation of family members, victim has also implicated him in the crime.
13. Accused Vinod has stated that the victim is major and on her own volition she has got the marriage certificate prepared at civil court at Gyanpur and thereafter on the pressure of her family members, she has implicated him and his family members.
14. Accused Amrit Lal has stated that being the distant relation, he has been falsely implicated in this case.
15. Accused Brij Lal has stated that being the father of Vinod alias Doctor, he has been falsely implicated in the case.
16. Accused Basant Lal and Heerawati have stated that being the (Mausa and Mausi) of the accused Vinod alias Doctor they have been falsely implicated in the present case. They have also taken the plea of alibi.
17. Accused Ram Savari has stated that being the mother of the accused Vinod, she has been falsely implicated in the case. She has also taken the plea of alibi.
18. Accused Titil has stated that being the relation of the accused Vinod, he has been falsely implicated in the case.
19. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgement.
20. Feeling aggrieved, the accused have come up in appeal.
21. Heard learned counsel for the appellants, learned Additional Government Advocate for the State-respondent and perused the lower court record.
22. It has been contended on behalf of the appellant that the evidence adduced on behalf of the prosecution is shaky and untrustworthy of credence. The learned trial court has committed an error in relying on evidence.
23. Per contra, learned Additional Government Advocate has submitted that the judgment is well reasoned and well discussed and based on legal evidence on record, hence, the appeal deserves dismissal.
24. An initial argument has been put forth by learned counsel for the appellants that there is inordinate delay in lodging the FIR and there is no explanation for the delay, which casts shadow of doubt on the complete prosecution story.
25. Perusal of the chik report reveals that the occurrence took place on 19.05.2002 at 14.00 hours, whereas the report of the matter was lodged on 25.05.2002 at 18.30 hours, the police station being 18 Kms away from the place of occurrence. There is no explanation regarding delay in lodging the FIR. No doubt, mere delay in lodging the FIR cannot be regarded itself as fatal for the prosecution case, however, it is obligatory on the part of the court to take notice of the delay and examine in the backdrop of the case whether any acceptable explanation has been offered by the prosecution and if such an explanation has been offered, whether the same deserves acceptance being found to be satisfactory.
26. In (2007) 2 SCC 170: Ram Das Vs. State of Maharashtra in para-24, the Apex Court has observed as under :
"24. ......mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them."
27. Now it is to be seen as to what the informant said about the delay. PW-2 Salgam, who is the father of the victim and also the informant, has stated that his daughter was taken away by Doctor alias Vinod and the matter was conspired by Brij Lal, Pappu, Collector and Sanwariya Devi. He searched his daughter for quite some time, but she could not be traced out. Just searching for the daughter would not be enough not to lodge the report against the accused persons, when the victim was missing from the house since so many days and it is not the case of the informant that due to repute of the family, he did not lodge the report. No explanation has come forth from the side of the prosecution to explain the delay in lodging the FIR. Thus, this unexplained delay in lodging the FIR has caused a dent in the prosecution case and shadow of doubt.
28. In (2015) 3 SCC (Cri) page 82 : Mohd. Ali @ Guddu Vs. State of U.P., the Apex Court has held that delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors. The Hon'ble Apex Court in State of Rajasthan Vs. N.K. Accused : AIR 2000 SC 1812 has observed as follows :
"We may however state that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution. In State of Rajasthan Vs. Narayan AIR 1992 SC 2004 this Court observed True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police. In State of Punjab Vs. Gurmit Singh & Ors. (supra), this Court has held The Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family"
29. No doubt there are reasons, objects and aims of lodging prompt FIR and delay in lodging the first information report more often than not, results in embellishment and exaggeration which is a creature of an after-thought. A delayed FIR not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity, as has been held by the Apex Court in State of Himanchal Pradesh Vs. Prem Singh: AIR 2009 (SC) Page 1010 is extracted below:-
"This is trite law that Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety."
30. As far as the occurrence is concerned, if the statement of the victim is consistent, trustworthy and credible, her statement alone is enough for conviction of the accused for rape. Hence, I would come to oral and direct evidence adduced on behalf of the prosecution. PW-1 is the victim, who has stated her age to be 16 years on 10.09.2003. Although according to the FIR, which was lodged on 22.05.2002 more than a year before the statement, the father himself mentioned the age of the victim to be 16 years. Hence, at the outset, the informant has supported his statement by giving incorrect facts before the court regarding age of the victim. Further PW-1, the victim has stated that she was taken away by the accused. She took away Rs. 7000/- and gold chain. She was taken on the pretext that her father met with an accident. The victim has further stated that she was the child of first wife of the informant. Her mother's name was Kalawati. Later on, she stated that her biological mother's name was Sonak. She has admitted that her biological mother Sonak is alive. This witness had to undergo test of cross examination, in which she has admitted that she married three times and Ashok was her third husband. In her statement, she has stated that she does not know Phool Chand, but in cross examination she was trapped and she had to admit that she knows Phool Chand, who was her uncle (mausa). This small girl, who states her age to be 16 years, left no stone unturned to try to mislead the court. She was shown the photograph along with Raj Kumar, she admitted that in the photograph (31 Kha), she was present with Raj Kumar, who is son of Manager. She did not get this photograph clicked with Raj Kumar, but when the marriage ceremony of the daughter of Phool Chand was being solemnized, there the photograph was clicked. She could not state whether this photograph clicked on 20.11.1999, but she has admitted that marriage of daughter of Phool Chand took place four years earlier. She has said that when marriage took place four years back, at that time she was 17 years of age. Before she fled away with Doctor alias Vinod, nobody raped her, but in the next breath, she said that she was raped twice. Thus, it is clear that physical relations were not foreign to this lady and she was well aware of sex. Another averment comes from the mouth of the victim who states that "eSa MkDVj ds lkFk Hkkxh ugha Fkh u MkDVj us eq>s Hkxk;k FkkA MkDVj dh eEeh lojh Hkxkdj ys xbZ FkhA" Thus, this witness absolved the accused from all liability of kidnapping and abducting the girl etc. Further the victim has stated that the day when the accused took her, they raped her and after that rape was not committed on her.
31. Coming to the statement of the victim recorded under section 164 Cr.P.C., she has stated that Doctor alias Vinod, Inspector alias Pramod and Sawariya, mother of Doctor alias Vinod came on jeep and told her that her father had met with an accident and at this, she sat in the jeep along with money and jewellery. She thought that money would be needed for treatment. When vehicle started going towards the Ganga, she asked them as to where they are taking her, at this they told that her father was admitted in hospital at Darwasi. They took her at Titil's house. They locked her in the Titil's house where Doctor alias Vinod, his mausi Heerawati and his mausi's husband and Titil came and asked her about money, when she refused to give money, Collector showed her a country made pistol, Doctor showed her a knife and Titil slapped her twice and snatched the money and gold chain. How these accused persons came to know that the victim was carrying Rs. 7,000/- and gold chain is a question which remains unanswered throughout the trial. In the statement under section 164 Cr.P.C. the victim has further stated that Doctor alias Vinod and Collector raped her. At that time she was semi-conscious, but she was slight intoxicated. When both the accused were raping, she raised alarm, but nobody were there. Doctor alias Vinod and Inspector alias Pramod both are real brothers. This is a very delicate relationship and generally although, I say not impossible, but generally two real brothers would not rape one girl simultaneously. This witness has initially stated that her mother is dead, but later on she stated that her mother Sonak was alive. In her initial breath, she said that she does not know Phool Chand, but later on she admitted that Phool Chand was her mausa. She has further stated that she was known to accused Vinod prior to the incident. During the course of incident, when she was closed in a room, on the next day, her photograph was clicked with the accused Vinod. The photo of girl is being clicked with different men and she does not know them, nor she complains about this to anybody. In the statement under section 164 Cr.P.C., there is not a whisper that any country made pistol or knife was used by the accused persons. On the other hand, she has stated that Collector and Vinod administered her a tablet forcibly and forcibly poured water in her mouth, due to which she was intoxicated. The statement under section 164 Cr.P.C. is nothing more than a previous statement, which can be used for contradiction or corroboration. In the present case, the victim is changing her version now and again. It is trite law that if the statement of the victim is reliable and trustworthy, conviction can be based on the sole testimony of the victim. If the statement of the victim is not reliable, then the court would seek for corroboration.
32. In AIR 2010 SC 3813, Musauddin Ahmed v. State of Assam, the Hon'ble Apex Court has held that if there are serious contradictions in the deposition of the victim in court and in her statement recorded under section 164 Cr.P.C., then from the conduct of the prosecutrix consent can be inferred.
33. Generally, cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is no a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face vaule, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu vs. State of Maharashtra, AIR 2006 SC 508.
34. Thus, the statement of the victim is wholly unreliable, improbable and a bundle of lies. Although, she has stated her age to be 16 years, but as per medical report (Ext. Ka-5), her age was found to be above 18 years and no mark of injury was found on her body. Thus, even as per the medical report, she was much above the age of consent.
35. It is trite law that it is not mandatory that injuries are must for conviction of an accused under section 376 IPC. It is not the case of the victim that when the accused raped her, they were having a weapon. She has only stated that when they snatched her money and jewellery, they were armed with country made pistol and knife, but since there was forcible sex on the victim, bruises, abrasions and scratches on the victim especially on the forearms, wrist, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. Since many people had committed sexual assault, she ought to have sustained injuries, which are wanting in this case.
36. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instance where a parents has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case as has been laid down by the Hon'ble Apex Court in Radhu vs State of Madhya Pradesh, (2007) 12 SCC 57.
37. As per medical report and the statement of the doctor, no injury was found on the external or internal part of the body of the victim. The doctor rendered her opinion that there were no marks of violence on her private parts, no oedema, and swelling, no scratches, no marks of semen or hair on her private parts or on her body was found. The vagina was admitting two fingers easily. Thus, it would be difficult to believe that rape was committed on the victim as has been laid down in Lilia alias Ram Swaroop vs State of Rajasthan, 2015 (3) SCC (Cri) 418.
38. Salgam is PW-2, the informant and the father of the victim, who has stated that at the time of occurrence, the age of the victim was about 16 years. He has stated that only Doctor enticed away his daughter, who took away Rs. 7000/- and a gold chain, but Brij Lal, Pappu, Collector and Sanwariya Devi had also conspired in the offence. In cross examination, this witness has admitted that Raj Kumar and the victim had got some photographs clicked together in the marriage. Further, he has admitted that if somebody forcibly taken her daughter, the neighbourers would definitely have resisted. This statement has given an impression that no force was used on the victim, inasmuch as the victim has said that she sat on her own sweet-will in the jeep. He has stated that only Vinod enticed away her daughter. He does not know Amrit Lal. He has not seen anybody enticing or raping her and nobody told that her daughter was enticed away by Doctor. He had lodged the report on the basis of suspicion as he has stated that "jiV eSus 'kadk ds vk/kkj ij fy[kk fn;k FkkA" He has admitted that prior to the incident he had settled the marriage of his daughter and was making preparation for her marriage. This is the circumstance for which the victim left the house.
39. S.I. Vinod Kumar Sharma, PW-3 was cross examined, in which he has admitted that there was no mention of the detail of the jewellery in the FIR and the in the FIR conspiracy by Brij Lal, Pappu, Collector and Sanwariya Devi has been mentioned.
40. Dr. Indu Kannaujiya, PW-4 has admitted that the victim had no mark of external or internal injury. Her hymen was torn with no discharge and vagina was admitting two fingers easily.
41. As far as the recovery is concerned, S.I. D.N. Rai, PW-5 has stated that when the victim was recovered, her parents and uncle (mausa) were present there, the recovery memo is Ext. Ka-1 on record. In this recovery memo, the presence of Salgam is not shown nor it has been mentioned that the parents of the victim were present, when she was recovered. Thus, the recovery also becomes doubtful. Some contradictions regarding statement under section 161 Cr.P.C. were put to this witness and the victim, which are fatal for the prosecution case.
42. In the statement under section 313 Cr.P.C., the accused have denied the occurrence. The accused Doctor alias Vinod has stated that the victim was a major, who married him on her own freewill in court. This statement has been substantiated by documents on record. The victim being a girl above the age of consent, I conclude that she was a consenting party.
43. Perusal of the record also shows that no charge under section 394 IPC was framed against the accused, but accused were convicted under section 394 IPC, which conviction is definitely bad in the eyes of law. The appellant No. 5, Titil was not named in the FIR. When the statement of the victim was recorded under section 161 Cr.P.C., there were no allegations of rape, but subsequently the victim developed the case and levelled the allegations of rape against the accused in her statement under section 164 Cr.P.C., which was recorded after three days. The victim remained along with the accused for about nine days, but she did not raise any alarm. Even the accused were not asked any question regarding section 394 IPC and the circumstances appearing against them. The younger sister of the victim, namely, Manju has said that when the victim was taken away by the accused, she was present in the house. Neither she was produced in the court, nor she was examined.
44. Heerawati is mausi of Doctor. Collector is the husband of Heerawati. All the accused persons are very closely related. Only the accused Collector, Ram Savari Devi and Heerawati were charged for the offence under section 394 IPC, but without framing charges against the accused, namely, Doctor alias Vinod, Inspector alias Pramod, Titil alias Jhallar, they were also convicted under section 394 IPC. This is against the principle of natural justice.
45. In AIR 2011 SC 2877, Krishna Kumar Malik vs State of Haryana, it has been laid down that if the prosecutrix is said to have been abducted and rape was committed on her, if she has also wavering several persons in the incident, if the conduct of the prosecutrix in not raising alarm while travelling is unnatural, if her evidence is shaky and untrustworthy and not corroborated by medical evidence, the accused should not be convicted.
46. Thus, complete testimony of the prosecutrix being unworthy of credence and unreliable and bundle of lies could not have form the basis for conviction of the accused on the basis of illegal, inadmissible evidence and also without framing of charges against some of the accused.
47. Thus, what has been stated and discussed above, I conclude that the prosecution case is bundle of false allegations and improbable facts, due to which the learned trial court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed.
48. Hence, the impugned judgement and order of conviction and sentence dated 30.07.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Court No. 1, Mirzapur in Sessions Trial No. 372 of 2002 (State vs Doctor alias Vinod Kumar and others) arising out of Case Crime No. 135 of 2002, under sections 376(2)(g), 366, 368, 394, 342 IPC, police station Vindhyachal, district Mirzapur, is hereby set-aside.
49. Accordingly, the appeal is allowed.
50. The appellants Doctor alias Vinod Kumar, Collector alias Basant Lal, Inspector alias Pramod Kumar, Titil alias Jhallar and Amrit Lal are in jail. The appellants Ram Savari Devi and Heerawati Devi are on bail. They shall be released forthwith unless wanted in any other case. The appellants are directed to comply with the provision of Section 437-A Cr.P.C. forthwith.
51. Let a copy of this order be sent to the Trial court concerned.
Order Date :- 08.04.2016 Sazia