Heard Shri R.P. Mishra, learned counsel for the appellant and Shri Sharad Dixit, learned AGA for the State respondent.
This criminal appeal has been filed challenging the judgment and order dated 16.1.2009 passed by the learned Additional Sessions Judge/Fast Track Court No.2, Gonda by which he has convicted the present appellant and sentenced him to undergo 6 years RI and fine of Rs.6000/- under Section 366 IPC and also 10 years RI and fine of Rs.10,000/- under Section 376 IPC.
As per factual matrix of the case, FIR was lodged by Ayodhya Prasad in Police Station Kotwali Nagar, District Gonda on 10.7.2006 alleging that his daughter the victim, aged about 13 or 14 years was enticed away by Sabhajeet Pandey @ Kariya. He was seen by Shambhu Nath Ojha. On this, a case under Section 363, 366 IPC was registered. During investigation, the victim was recovered on 22.11.2006 from the house of accused. Her statement was recorded. She was sent for medical examination and after medical examination, charge sheet was submitted. After committal of case, charge under Sections 363, 366, 376 IPC was framed. The accused pleaded not guilty and claimed to be tried.
The prosecution examined Ayodhya Prasad as PW-1, Shambhu Nath Ojha as PW-2, Ranjana Ojha as PW-3, Dr. R.K. Srivastava, Radiologist as PW-4, Dr. Vijay Laxmi Saxena as PW-5, Mangala Singh Yadav as PW-6, Suman Tripathi, Sub Inspector as PW-7, Bhagawati Singh, Sub Inspector as PW-8. After closure of evidence of prosecution, statement of accused was recorded in which she has stated that he was in love with the victim. On the pressure of victim they went away and married and were living as husband and wife in his house. She was recovered from his house.
The court below, after going through the evidence and hearing parties, convicted the appellant under Sections 366, 376 IPC and directed him to undergo 6 years RI and fine of Rs.6000/- under Section 366 IPC and also 10 years RI and fine of Rs.10,000/- under Section 376 IPC. In default of payment of fine, he was directed to undergo 2 years additional RI. The appellant was acquitted under Section 363 IPC.
Learned counsel for the appellant submitted that in medical examination the victim' age was found to be above 18 years. She was consenting party. From the evidence it is clear that she had gone on her own free will. At the time of recovery, she has stated before the police that she and accused are married. She has married on her own free will and she is pregnant, but later on, due to pressure of family members, while giving statement in the court she resiled from the statement given earlier before the Investigating Officer.
Learned AGA has submitted that original TC of the girl has been produced and, according to date of birth, mentioned in TC, the victim's age is below 16 years, so her consent, if any, is immaterial.
Before entering into the merits of argument of both the parties, determination regarding victim's age is necessary.
Dr. R.K. Srivastava - PW-4 is Radiologist and he has performed the x-ray of the victim and proved x-ray report Ex.Ka.3. He has also performed ultra sound test of the victim and found that the victim was pregnant of 14 weeks 3 days. Ultra sound report is also proved as Ex.Ka.4. This witness has also proved x-ray plate, which is material Ex.1. Dr. Vijay Laxmi Saxena - PW-5 has, on the basis of x-ray report, prepared supplementary report, which is Ex.Ka.5 and has given opinion that the victim was above 18 years at the time of medical examination.
There is no evidence from the side of prosecution regarding the age of victim, except this medical report. Though original TC has been filed by the prosecution and the Investigating Officer has taken statement of the principal of the school under Section 161 Cr.P.C., but it has not been proved by any witness, so the date of birth, mentioned in TC, cannot be taken into account for determining the age of the victim.
In the case of Sunil v. State of Haryana, 2010 (68) ACC 279 the Apex Court has held that where school leaving certificate, on the basis whereof the victim's age was recorded, was not produced, it was unsafe to convict on the basis of approximate age particularly when she never resisted to be deflowered by the appellant repeatedly.
In the instant case, PW-8 Bhagwati Singh, S.I. was the police officer, who had recovered the victim from the house of the appellant has stated on oath that when the victim was recovered, her statement was recorded, and at the time of recovery she had stated that she had gone with the appellant on her own free will and they had married in a temple and she is pregnant by appellant. She had further told that she had gone on her own free will and also she was having intercourse with the appellant with her free will. This witness has proved fard Ex.Ka.10, which contains the statement of the victim.
PW-2 is a person, who, according to FIR, has seen the appellant accompanying the victim. He has stated in his examination in chief that on 9.7.2006, at about 7 or 7.30 PM, he has seen the appellant accompanying the victim. In his cross examination, he has admitted that he did not enquire from the victim that as to where are they going. He further stated that they were talking to each other and were having a mobile in their hands. He further stated that victim and appellant were acquainted with each other. They were in habit of talking on mobile and going places together. He has further admitted that when he say the victim accompanying the appellant, the victim was not objecting, so there was no doubt in his mind about some untoward happening.
The statement of the victim has to be scrutinized in the light of above statements and facts. The victim has stated in her examination in chief that on 9.7.2006, at about 7 or 8 PM, she had gone to ease herself. When she was returning Sabhajeet @ Kariya met her and told that her brother Santosh has met with an accident on road, he is going to look after him and she should also accompany him, then she accompanied the appellant. She found a jeep stationary on the road. One person was also sitting inside the jeep. She asked that where is her brother, then she was informed that her brother was shifted to hospital, then she told them that she is going to home and will accompany family members to the hospital, then the appellant said that he was going to hospital, accompany him, then she sat in the jeep and then he forced a cotton cloth on her nose and then she became unconscious. She further stated that she could not know as to where they had gone. She stated that the appellant always kept her in closed room and used to rape her against her will. When she resisted, she was threatened for life. She remained with the appellant for about 3 or 4 months in different places. He used to drug her. She stated that the appellant took her to Gonda by a bus coming from Lucknow and they alighted near Suri Murgi Farm after four months of incident. As soon as they got of the bus, they were arrested by the police and at that time Surendra Nath Ojha and Shambhu Nath Ojha were also present there. This witness has proved her signature on fard and said that at the time of recovery she was made to sign on plain paper. She further stated that her statement was not recorded under Section 161 Cr.P.C.
Fard baramadgi of the victim is Ex.Ka.10. PW-2 has also put his signature on this fard. PW-2 has also admitted his signature over the fard and stated that he has put his signature after preparation of fard.
The victim has, in her cross examination, stated that when she was going to Gonda from Lucknow it was broad day light and police personnels were also present on the bus stand, but she neither raised alarm before climbing on the bus, nor made any complaint to the police personnel on the bus stand. Travel time between Lucknow and Gonda is four hours, and on bus she neither made complaint to the conductor, nor to any passenger.
The Investigating Officer PW-8 has admitted in his cross examination that the victim has never informed him that she was taken away on false representation that her brother has met with an accident.
No doubt, an accused can be convicted on the basis of sole testimony of the prosecutrix without any further corroboration provided that the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. If the evidence of the victim does not suffer from any basic infirmity and the probability factor does not render it to be unworthy of credence, as a general rule, there is no reason to insist of corroboration.
The statement of the victim does not appear to be natural and truthful on following circumstances: -
(1) The victim was recovered from the house of the appellant, as per police record, and statement of witnesses, while the victim has stated that when she alighted from the bus near Suri Murgi Farm, she was arrested by the police. This goes to show that she is deliberately concealing the fact that she was living in the house of appellant at the time of recovery;
(2) She has travelled with the appellant to several places and remained with him for about four months, but she did not try to escape or raise alarm or make complaint to any person, even when she was travelling by public transport; and (3) She has given statement before the Investigating Officer at the time of recovery that she had gone with the appellant on her own free will, and she was having intercourse with him also on her own free will.
Considering the entire facts and circumstances of the case, the criminal appeal is liable to be allowed, and is hereby allowed. The appellant is acquitted of charges framed against him. The appellant is on bail. His bail bond is discharged. He need not surrender.
Order Date :- 22.4.2014 Anupam