Hon'ble Mrs. Vijay Lakshmi,J.
(By Hon'ble Mrs. Vijay Lakshmi, J.) Challenging the validity and correctness of the judgment of acquittal dated 30.8.2014 passed by the Additional Sessions Judge, Kanpur Nagar in S.T. No. 1256 of 2010 (State of U.P. Vs. Akhilesh) arising out of Case Crime No. 629 of 2009, under Sections 363, 366 and 376 I.P.C., P.S. Barra, district Kanpur Nagar, complainant/ father of the prosecutrix has preferred this appeal under Section 372 Cr.P.C.
We have heard learned counsel for the appellant on the point of admission and perused the impugned judgment.
It has been alleged in the F.I.R. dated 25.9.2009 that on 22.9.2009 when the daughter of the informant aged about 17 years 4 months, was going to the hospital, accused Akhilesh met her in the way and enticed her away. On the basis of this written report, a criminal case under Sections 363 and 366 of I.P.C. was registered at Case Crime No. 629 of 2009 on 25.9.2009 at 6.30 P.M. The matter was investigated and after investigation charge-sheet was submitted against accused Akhilesh under Sections 363, 366 and 376 I.P.C. The case was committed to the court of sessions where charges were framed against the accused who denied from the charges and claimed his trial.
Apart from formal witnesses, the prosecution examined the informant i.e. the father of the prosecutrix as P.W. 1 and the prosecutrix herself as P.W. 2. After conclusion of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. The accused, in his defence, produced the copy of the application moved by him for obtaining the certificate of his marriage with the prosecutrix, having the signatures of prosecutrix on it.
The learned court below after scanning the entire evidence led by the parties, found that the prosecutrix was major at the time of occurrence and she was a consenting party and she willingly performed the marriage with the accused. As a result he acquitted the accused from all the charges levelled against him vide impugned judgment.
Learned counsel for the appellant has challenged the legality of the impugned judgment on the ground that the learned court below has ignored the evidence of P.W. 1 who has fully corroborated the prosecution story. The learned trial court has also ignored the settled principle of law relating to crime of rape and has adopted a technical view.
The facts of the case reveal that except the prosecutrix herself, there is no eye witness of the incident of accused enticing or taking away the prosecutrix. No body has seen her while the accused was taking her away with him. There is a delay of more than 3 days in lodging the F.I.R. No report has been lodged even about the missing or "Gumshudagi" of the prosecutrix. No father whose daughter is missing will sit quietly for 3 days without even searching for her or without making any complaint to any one specially when the accused person is known to him, which fact is clear from the F.I.R. itself. It is worth mentioning that the prosecutrix has not only admitted her signatures on the application moved by the accused for obtaining marriage certificate but she, in her statement recorded under Section 164 Cr.P.C., has categorically stated that she is major and has performed marriage with accused out of her free will No doubt, the legal position is well settled that in cases of rape, the sole statement of prosecutrix, if found reliable, is sufficient for the conviction of the accused and no further corroboration is required. However, in the instant case, the evidence of prosecutrix recorded in court during trial, being in total contradiction with her earlier statement recorded under Section 164 Cr.P.C., does not inspire confidence.
The prosecutrix during trial, has stated that the accused took her to the railway station and from there to Ballia. He kept her in Ballia for 3 ? 4 days. After that they returned to Kanpur and when they were standing on a sweet shop situated at Barra bye-pass, the police arrested them. During her cross examination she has admitted the fact that the accused had not used any force while making her sit in the van by which she was taken away. She has stated that she was taken to railway station by a rickshaw. Some policemen were standing at the crossing but neither she raised any alarm nor she called the policemen for help. Akhilesh had bought the railway tickets and after buying the tickets they waited for the train for about ½ hour. In train, they sat in a general compartment where several passengers were sitting. At Lucknow Bus Station she had to wait for about 2 hours but she did not make any phone call from there.
The aforesaid statement of the prosecutrix clearly shows that she had sufficient time and ample opportunity to raise alarm but she did not make any attempt for that.
There appears clear improvements and exaggerations in the statement of the prosecutrix as she has stated that there was no bathroom in the house where Akhilesh had kept her. She could not take bath for six days and she could not even attend the natural call during these six days. It is not possible for a human being to not to ease himself or herself continuously for six days.
In total contradiction to the aforesaid statement recorded during trial, the prosecutrix in her earlier statement recorded under Section 164 Cr.P.C. has stated that she is major. She has married with accused Akhilesh in Ballia and she intends to live with him. During trial she has improved her earlier version by stating that earlier statement was given by her under the threat and compulsion of accused Akhilesh which does not inspire confidence keeping in view al the facts and circumstances of this case.
The doctor has not found any mark of rape during her medical examination. Her physical traits have been found well developed. No external or internal injury has been found on her body and she has been found to be used to sexual intercourse. Two different age certificates have been filed on her behalf disclosing two different dates of birth of the prosecutrix. Her radiological age has been found to be above 18 years.
The learned court below, keeping in view all these facts and circumstances, has rightly acquitted the accused. There appears no ground to interfere in the impugned judgment. The appeal is liable to be dismissed at the admission stage itself and is dismissed accordingly.
Order Date :- 25.11.2014 S.B.