Court No. - 1
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 404 of 2018 Applicant :- Nargis Opposite Party :- State Of U.P. And Anr.
Counsel for Applicant :- Rabindra Bahadur Singh,Balram Singh Counsel for Opposite Party :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri R.B. Singh, learned counsel for the appellant, Sri Jai Narain, learned A.G.A. appearing for the State and perused the record.
The present application has been moved by the appellant who is victim as well to permit her to file appeal against the judgment and order dated 01.09.2018 passed by 8th Additional Session Judge, Meerut in S.T. No.78 of 2016 (State vs. Dr. Rashid Malik) arising out of case crime no. 538 of 2015 under sections 323, 376, 354A IPC P.S. Lisari Gate, District Meerut whereby the respondent no. 2 has been acquitted.
The contention of the learned counsel for the appellant is that the impugned judgment suffers from serious illegality because in statement of PW-5 Dr. Pradeep Kumar as well as the version of the informant (appellant) are well supported by evidence on record; informant (PW1) has specifically stated that the accused-respondent no. 2 had given cold drink to her in which some intoxicant mixed and after consuming the same she was raped by him; further it is contended that there was clear cut evidence against the respondent no. 2 about committing rape upon the appellant regularly under fear of making the clip of sexual intercourse public; she had also sustained injury on her body which was caused by the respondent no. 2; independent eye witnesses have fully supported the prosecution version and on the basis of the evidence on record the offence against the respondent no. 2 was proved to the hilt yet judgment of acquittal has been passed.
To appreciate the argument of the learned counsel for the appellant, it would be necessary to state in brief the facts of the case as well as evidence and its appreciation by the court below.
According to the prosecution, the appellant (first informant) had given a written report (Exhibit Ka-1) on 1.9.2015 at about 2.20 P.M. stating therein that she was performing her duties as Assistant at the Aazmi Clinic where she was alone as other had gone to take lunch, right then the respondent no. 2 entered in the clinic and finding her alone started lecherous activities which was opposed by the appellant and as a result of that the respondent no. 2 had torn her clothes in the process. She has also received injuries in her neck and at her scream the neighbour came there seeing whom the respondent no. 2 fled from there and she had made a prayer in the said application that her medical examination to be got conducted. On the said written report, Case Crime No.538 of 2015 was registered against the respondent no. 2 under section 354-A, 323 IPC at 11.00 PM at P.S. Lisari Gate, District Meerut, entry of which was made in G.D.No.46 dated 1.9.2015 at 23.00 hrs. which is Exhibit Ka-9, thereafter the victim was sent to District Hospital, Meerut for being medically examined on 1.9.2015 at 8.15 p.m. where after being examined it was found that she had received one abrasion measuring 3 cm x 1cm, 5 cm below from elbow which could be caused by a blunt object. The injury report is Exhibit Ka-7. After registration of the case, investigation was conducted by S.I. Shivdan Singh who prepared site plan at the instance of the first informant on 2.9.2015, which is Exhibit Ka- 4 and also recorded her statement under section 161 Cr.P.C. in which the appellant gave absolutely divergent version than what was mentioned in the FIR by stating that four years prior to this occurrence, the respondent no. 2 had administered her cold drink containing narcotic substance on the pretext that he would get her admitted in B.M.A.S. and when the victim lost consciousness, he committed rape upon her and also made clipping of the same and thereafter under the threat that he would make the clipping public, he established physical relationship with the appellant repeatedly on many occasions. It was also stated that on 9.9.2015 at 12.49 P.M. medical examination was conducted by Dr. Kiran Singh who prepared medical report Exhibit Ka-2 and for further investigation a sealed slide was prepared on the basis of which a supplementary medical report dated 14.9.2015 was prepared, which is Exhibit Ka-3. Her statement under section 164 Cr.P.C. was also recorded on 7.9.2015 by the court in which she levelled allegation of committing rape upon the respondent no.
2. After investigation, charge-sheet was submitted and thereon cognizance was taken on 2.1.2016 after registration of the case no. 2996 of 2015, thereafter the case was committed to the Court of Session where the same was registered as S.T. No.78 of 2016. Charges were framed against the respondent no. 2 under section 376 read with section 323 IPC to which the respondent no. 2 pleaded not guilty and claimed to be tried.
During the argument another fact came into light and in the light of the same, the charge was amended by adding offence under section 354A IPC also to which also the respondent no. 2 had pleaded not guilty and claimed to be tried.
From the side of the prosecution to prove its case, the appellant has been examined as PW1 who also proved the written report, Exhibit Ka1; eye witness Neha Samir was examined as PW -2; Dr. Kiran Singh was examined as PW-3 who conducted the medical examination of the victim and prepared injury memo, Exhibit Ka-2 and supplementary medical report, Exhibit Ka-3;
S.I. Shivdan Singh was examined as PW-4 who proved the site plan, Exhibit Ka-4 and charge-sheet, Exhibit Ka-6. Dr. Pradeep Kumar was examined as PW-5 who also examined the victim medically and prepare medical report, which Exhibit Ka- 7,Constable Ram Kumar Singh was examined as PW-6 who registered the FIR and had prepared the chick FIR which is Exhibit Ka-8 and had also prepared G.D. which is Exhibit-6.
After conclusion of the evidence of the prosecution, the statement of accused-respondent no. 2 was recorded under section 313 Cr.P.C. wherein he stated that entire evidence was false. In fact, there had some money due upon the father of the appellant which was demanded back by him and only with a view to usurping that amount this false case has been lodged against the respondent no. 2 and also in defence he examined Shamim Khan as DW-1.
Before the trial court from the side of the respondent no. 2 it was argued that the written report was neither in the handwriting of the victim nor the same was signed by her and there being no signature of the victim on the said written report its genuineness was under cloud. No satisfactory explanation was given for the same. However, it was mentioned by her that at the time of lodging FIR, she was not in her senses.
Learned trial court has recorded in the judgment that it is noteworthy that in the written report it was mentioned by her that her medical examination be got conducted, which makes it clear that before lodging the said FIR, the victim had already been medically examined at about 8.15 P.M. and in the FIR nowhere was it mentioned that she was unconscious and thereafter the case was registered at 23.00 hrs. It is further recorded in the judgment that PW-2 Neha Samir who is alleged to be an eye witness had stated in cross-examination that FIR was written by the appellant and the learned trial court has found the said FIR suspicious on account of this discrepancies.
Learned trial court has also taken note of the fact that in the present matter the victim had given narration of the occurrence which took place on 1.9.2015 but during investigation when her statement was recorded under section 161 Cr.P.C. she also made statement that she was physically exploited four years back prior to the present occurrence. In the present case, there appears to be two occurrence, one which took place four years prior to 1.9.2015 when she was physically exploited by the respondent no. 2 and the other occurrence took place on 1.9.2015.
Learned trial court has recorded in the judgment that the appellant has not made clear different dates that she was physically exploited by the respondent no. 2 when the said occurrence took place four years prior to 1.9.2015 although in cross-examination she had stated that it was correct to say that in her statement given in examination-in-chief regarding being raped, she had not given date and time to the Investigating Officer. Learned trial court had rightly held that the occurrence is serious as rape which would leave deep scar on a person, despite that no date and time has been disclosed by the victim , makes occurrence to be doubtful.
It is further held by the trial court that in the FIR the appellant has not stated anything about the said occurrence which happened of continuous rape four years prior to the present occurrence which makes occurrence doubtful. She has further stated in her cross examination that till date she had not seen any such video clipping on the basis of which she has alleged to be tortured by the respondent no. 2 nor the Investigating Officer has been provided any such video clipping. Further, the trial court has recorded in the impugned judgment the place of occurrence to be clinic of the respondent no. 2 which in the statement of the appellant is stated to be a shop measuring 10 ft. x 12 ft. in length and 6 ft. x 2 ft. in width, in which on one side there was a chair on which patient would lie and there was other chairs for sitting of the patients. It is also recorded that the patients were coming almost whole day in the clinic therefore in such a small shop how could it be possible that the appellant victim would be sexually exploited by the respondent no. 2. Moreover, in the site plan, number of other houses and shops are also shown located which would also make it clear that in such a locality, it would not be possible for respondent no. 2 to exploit the appellant sexually.
It is further recorded in the impugned judgment that Dr. Kiran Singh, PW-3 had clearly stated in her statement that she had not found any injury on the person of the appellant and on the slide which was prepared by her in pursuance of internal examination, the report was found in negative, hence no opinion could be formed about the appellant being raped. Further, it is recorded in the judgment that in spite of demand of Rs.one lac being alleged by the appellant to have been made by the respondent no. 2 in lieu of getting her admitted in cross examination, she has stated that her father had given Rs.one lac but it was not made clear as to before whom the said amount was given and on which date and place and from where arrangement of the said amount was made and also her father was not examined in this regard. On the basis of the above analysis and evidence the trial court held that the occurrence which is alleged to have taken place four years prior to 1.9.2015 by the appellant victim becomes absolutely doubtful.
As regard the occurrence of 1.9.2015 it is recorded in the impugned judgment that DW-1 has stated in cross examination- in-chief that on 1.9.2015 Dr. Neha Samir had gone home for lunch and the appellant was alone at the clinic at 2.30 P.M. and finding her alone, the respondent no. 2 entered in the clinic and tried to molest her which resulted in her receiving injury in neck and near elbow and her clothes were also torn by the respondent no. 2. In this regard, it is recorded in the judgment that the said occurrence appears to have been stated to have taken place only to give colour to the occurrence because neither in the site plan it has been shown where such occurrence had take place nor in her statement under section 164 Cr.P.C. she stated about this fact. Further it is recorded in the impugned judgment the nature of injuries which are alleged by the appellant to have been received and place of occurrence and the medical report do not match with each other which makes the occurrence to be doubtful. PW1 in her written report as well as in examination in chief has stated that she had received injury in her neck and the elbow but in cross examination she stated that the respondent no. 2 had beaten her by hand , while in the medical report (Exhibit Ka-7) the injury is found in the front portion of the elbow which was nothing but an abrasion which is opined by the doctor to have been received by a hard blunt object. Therefore, according to victim's version that maar-peet was done by hand, if taken to be true, she would not have received any abrasion unless the hard blunt object was used in beating her.
Further, it is recorded in the impugned judgment that the victim had stated that her clothes were torn but the said clothes were not produced before the court which also makes occurrence doubtful because these clothes were also not provided to the Investigating Officer. Further, it is recorded that Dr. Neha Samir who was neither present on the spot nor had seen the occurrence, has been examined from the side of the prosecution as PW-2 who has deposed that she had seen the accused running from the place of occurrence. The victim herself has denied that there was any eye witness of the occurrence, therefore, Dr. Neha Samir's statement is held to be only hearsay evidence hence not admissible in evidence. Further, it is recorded in the impugned judgment that the FIR has been lodged after 9.00 hours of the incident which is considerable delay without any satisfactory explanation for the same. There were various discrepancies in the statement of the victim as regards her working at the place of Dr. Neha Samir.
Further, it is recorded that the statement given by the victim and the version given in the written report by her and the statement of alleged eye witness as well as medical reports are not establishing the prosecution case beyond reasonable doubt against the accused as there were plenty of discrepancies among them.
In view of the above, learned trial court has concluded that the prosecution has failed to prove her case against the respondent no. 2 and accordingly has acquitted the respondent no. 2 of the above-mentioned charges.
Having considered the totality of the circumstances of the present case, we are of the opinion that the view taken by the court in acquitting the accused respondent does not suffer from any perversity or illegality. The learned trial judge was perfectly justified in passing the impugned judgment of acquittal.
We have carefully gone through the entire judgment and have examined the same in the light of the arguments made by the learned counsel for the appellant and find that there is no infirmity in the impugned judgment and there is no ground to grant leave to file this appeal. Accordingly, this application is dismissed and leave to appeal is refused.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 31.10.2018 AU