Hon. Vishnu Chandra Gupta, J.
The appellant Faizan @ Fajju has preferred the present criminal appeal No. 181 of 2013 against the judgement and order dated 22.1.2013 passed by learned Addl. Sessions Judge, TECP-3, Lucknow in S.T. No. 287-A of 2006 whereby the appellant has been convicted for the offence punishable under section 376(2)(G) IPC and sentenced to undergo life imprisonment with a fine of Rs. 10,000/-, in default of the payment of fine, further undergo simple imprisonment of one year.
According to the prosecution version the FIR of this case has been lodged by P.W. 1 Sabruddin on 2.5.2005 at 8.20 P.M. alleging therein that his daughter aged about 15 years was kidnapped by three persons, she was forcibly taken into Santro car in the presence of his son Abasuddin aged about eight years, she was taken to some unknown place. Its information was given by Abasuddin to him, thereafter he lodged the FIR. During the course of the investigation the I.O. collected the evidence against the appellant Faizan @ Fajju, co-accused Gaurav Shukla, Aman Bakshi, Saurav Jain, Bhartendu Mishra and Asif Siddiqui and submitted the charge sheet under sections 365, 376 IPC but the trial court framed the charge against the appellant Faizan @ Fajju, co-accused Aman Bakshi, Bhartendue Mishra for the offence punishable under sections 365, 376(G) IPC. According to the statement of the prosecutrix on 2.5.2005 at about 5-6 P.M. she was going to her house along with her brother Abassudin, three unknown miscreants came out from a car, she was forcibly dragged to a car, her brother was also beaten by them who fell done. She shouted in side the car and made hue and cry but volume of the tape recorder was increased by the accused persons. The accused persons ere having the conversation which reveals that she was taken to Aminabad. The accused persons were armed with gun, they put off her clothes and inserted the barrel of gun in her vagina, thereafter in a running car all the three persons committed the rape with her. When she was forcibly dragged into car three accused persons were already boarded in car but on way some other persons also boarded in car and she was raped by six persons. Before commission of the rape her body was burnt by cigarette and lighter, thereafter gun barrel was inserted in her vagina then she was rapped. They wanted to through her in river and they were having a telephonic talk to whom they were addressing Baba who told them to commit the murder of the prosecutrix or through into river. She was taken to a house in jungle, she was rapped in a room from where she was beaten by belt and committed rape. In the same room one boy came there to told her that the accused persons had already committed murder of two girls. She was asked by him to run away, thereafter by providing Rs. 20/- by the accused persons she was left on a tempo, by that time accused persons were covering their faces. Her clothes were given to her which was put on, she met with a woman of Bilaspuri, she was solaced by her and with her help she was taken to the police station and took her to village where she became unconscious, thereafter with the help of the family members she was taken to the police station and she was sent to hospital for medical examination. She was medically examined in Balrampur hospital by P.W. 4 Dr. A.K. Priyadarshi on 3.5.2005 at 2.50 A.M. According to the medical examination report she had sustained a contusion on the left side of the face, 2 cm below of left eye, an abraded contusion on upper lip, lacerated wound on third finger of right foot and abraded contusion on the right side of the back below the scapula and having the complaint of bleeding from the private part. Thereafter she was referred to women hospital where she was examined by Dr. Ranuka Kashyap, P.W. 5 on 3.5.2005 at 3.00 A.M. According to the medical examination report no injury was found on her private part, hymen was old torn and heeled and there was no bleeding. The slide of the vaginal smear was prepared and sent to pathology. According to the report of pathologist no spermatozoa alive or dead was found. According to the X-ray report she was aged about 16 years. She also disclosed the date of earlier menses 15.4.2005.
According to the statement of the P.W. 2 Abasuddin about three years back when she was going in the company of her sister, her sister was kidnapped by three persons, she was taken in a car, he was sent to parents house by chawkidar. The statement of the prosecutrix was recorded under section 161 Cr.P.C. also. During investigation the appellant was treated as eye witness of the alleged incident, he came in the rescue of prosecutrix, he was not put up for identification and no DNA test was done, even the appellant was not medically examined. The appellant was the person who told the prosecutrix that the accused persons had committed the murder of two girls, therefore, she was asked to run away. The statement of the prosecutrix has been recorded under section 164 Cr.P.C. she was dragged by four persons in a car but two persons boarded the car, on way all the six persons committed the rape in side the car. The statement of the appellant was recorded under section 164 Cr.P.C. in which he stated that the other co-accused persons were his friends. In his presence she was rapped by other co-accused persons. According to the statement made by learned counsel for the appellant that the allegation has been made by the prosecutrix that gun barrel was inserted in her vagina and burn injuries were caused by cigarette and lighter but no such injury was found on her vagina and no injury was found on her body. The injuries found on the persons of the prosecutrix may be caused in marpeet. The prosecution story is not corroborated by the medical evidence and according to the findings recorded by the trial court the allegation of kidnapping has not been proved against the appellant but the allegation of rape has been proved. According to the statement made by learned counsel for the appellant that the appellant was on bail during the pendency of the trial, he was not mis-used the liberty of the bail. Therefore, he may be released on bail.
In reply of the above contention, it is submitted by learned A.G.A. that the appellant has been identified by the victim in the court. The allegation of rape has been made against the appellant. Injuries were found on the person of the prosecutrix, therefore, he may not released on bail.
Considering the facts,circumstances of the case, submission made by learned counsel for the appellant, learned A.G.A. and from the perusal of the records, it reveals that the appellant was not named in the FIR, he was not known to the prosecutrix prior commission of the alleged offence, he was not put up for identification and DNA test of the appellant was not done whereas it was done of co-accused Firoj Khan. The prosecutrix has not disclosed the name of the appellant in her statement recorded under section 161 and 164 Cr.P.C. The appellant himself did not disclose before the Magistrate under section 161 Cr.P.C. that he committed the rape whereas he stated that she was raped by other co-accused. He had asked to other co-accused not to rape the prosecutrix. The appellant was not with the co-accused persons who committed the offence of kidnapping and no injury was found on the vagina of the prosecutrix whereas in the trial of the other co-accused the report of public analyst was proved. According to the report the human blood was found in the Kurta, Salvaar and underwear of the prosecutrix and spermatozoa and semen were found in the underwear of the prosecutrix. In such circumstances the case of the appellant is distinguishable with the case of other co-accused, therefore, the appellant is entitled for bail.
Let the appellant Faizan @ Fajju convicted in S.T. No. 287-A of 2006 under Section 376(2)(G) IPC, P.S. Ashiyana, District Lucknow be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.
The realization of fine shall remain stayed during the pendency of the appeal.
Dt: 12.08.2014 RPD/