Court No. - 52
Reserved on 23.05.2019 Delivered on 31.05.2019 Case :- GOVERNMENT APPEAL No. - 5789 of 2005 Appellant :- State Of U.P.
Respondent :- Suresh And Others Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- Sudhir Dixit,V Singh,Vijay Shantam
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Rajiv Gupta,J.
1. Heard Sri Anil Kumar Kushwaha, Additional Government Advocate, for State of U.P. and Sri Sudhir Dixit and Sri Vijay Shantam, for the respondents.
2. This appeal has been filed from the judgment of Additional Sessions Judge, Court No. 9, Aligarh dated 02.09.2005 passed in S.T. No. 880 of 1998 [arising out of Case Crime No. 269 of 1998 under Sections 363, 366, 368, 376, of Indian Penal Code, 1860 (hereinafter referred to as the IPC)], P.S. Atrauli, district Aligarh, acquitting the respondents from all the charges.
3. On the written complaint (Ex-Ka-1) of Ram Swarup (PW-1), F.I.R. of Case Crime No. 269 of 1998 was lodged under Section 363, 366, I.P.C. against Suresh, Kehari, Deshraj, Kallu and Prem Pal. In the F.I.R., it has been stated that Poonia, aged about 15 years, daughter of the informant was enticed away by Kehari, Deshraj, Prem Pal and Kallu and in the night of 02.06.1998, under a plan they handed over Poonia, along with her clothes and a gold hasuli, silver kardhani and todiya of his wife to Suresh. Suresh was living for the last about 8 months, at the house of Kehari and Deshraj, which was adjoining to the house of the informant. Kallu was doing business of satta (betting) and used to open draws on the roof of Deshraj. Deshraj was satta agent of Kallu. In the night of 02.06.1998, Deshraj and Suresh were sleeping on the same cot on the roof of his house. When in the morning Poonia was not found in the house of the informant, then he looked on the roof of Deshraj and found that Suresh and Deshraj were missing. He began to search in fluster. On inquiry, Roshan Lal son of Babu Lal informed that he had seen Suresh and his daughter Poonia in the morning at about 5:00 A.M. at the kundis (tank) near the pond of the village. Thereafter, Bhagwati son of Budhsen had seen that Kallu, Suresh and his daughter were going on a motorcycle, towards Atrauli, at the culvert of water channel (bamba), while he was coming back towards the village from Atrauli Cold Storage. He requested these persons to set free his daughter. However his daughter was not released from their clutches as such he had come to lodge the FIR.
4. After registration of F.I.R. SSI Prithvi Singh (PW-6) investigated the matter. He copied check F.I.R., G.D. Entry in Case Diary and recorded the statement of Ram Swarup (PW-1). Thereafter on 05.06.1998, he recorded the statement of Bhagwati. He arrested Kallu and recorded his statement. On 15.06.1998, he recorded the statement of Ganga Devi, mother of the victim and eye witness Roshan Lal and prepared site plan (Ex-Ka-6). On 20.06.1998, he recovered the victim from the house of Bhoop Singh, situated in mohalla and P.S. Kalyanpuri, Delhi, from where accused Suresh and Bhoop Singh were also arrested. He prepared recovery memo (Ex-Ka-2). He recorded the statement of the witnesses of recovery and prepared the site plan (Ex-Ka-7) of the place of recovery. Thereafter, he recorded the statement of the victim. On the basis of her statement, Sections 368 and 376, IPC were further added in the F.I.R. On 21.06.1998 the victim was handed over to her father. On 05.07.1998, he recorded the statements of various witnesses and after completion of investigation he submitted charge sheet (Ex-Ka-5) against Suresh, Kallu and Bhoop Singh and exonerated Kehari, Deshraj and Prem Pal, on which cognizance was taken.
5. After committal, the case was registered as S.T. No. 880 of 1998. The prosecution examined Ram Swarup (PW-1), Roshan Lal (PW-2), Poonia (PW- 3), Dr. Mamta Varshneya (PW-4), S.I.Gajendra Singh (PW-5), SSI Prithvi Singh (PW-6) and Dr. B.P. Sharma (PW-7) and filed documentary evidence. After recording statements of Ram Swarup (PW-1), Roshan Lal (PW-2), Poonia (PW- 3), the Trial Court summoned Kehari, Deshraj and Prem Pal, by order dated 09.09.1999, in exercise of powers under Section 319 Cr.P.C. and framed charges against them. Thereafter, by order dated 12.09.2000, trial of Kallu was separated.
6. The trial court after hearing the parties found that from the evidence on record it had been proved that Poonia was more than 18 years age on the date of incident. According to statement of Poonia, she went to the pond from her house voluntarily. From the pond, she went to Atrauli on the motorcycle of Kallu. From Atrauli she went to Delhi by boarding a public bus, which took about 11 hours. During this period she did not raise any resistance which shows that she had voluntarily gone with Suresh to Delhi and voluntary made physical relation with him. Although in her examination-in-chief she made allegation relating to rape being committed by Kehari but in her cross examination, she resiled from her earlier statement and stated that Kehari had not committed rape upon her. So far as the charge under Section 368, IPC against Bhoop Singh is concerned, Bhoop Singh was a blind man. During stay of Poonia at the house of Bhoop Singh, Poonia had never made any complaint to him that she was detained there against her will as such Bhoop Singh had no occasion to know that Poonia was abducted and kept at his house against her will. On this finding he acquitted all the accused. Hence, this appeal has been filed.
7. We have considered the arguments of the counsel for the parties and examined the record. Out of the witnesses examined by the prosecution Ram Swarup, Roshan Lal and Poonia (PWs-1, 2 and 3) are witnesses of fact and remaining are formal witnesses.
8. Ram Swarup (PW-1) stated that on the date of incident, he was sleeping at his gher while the victim along with her mother and other children were sleeping at the house. The houses of Kehar, Kallu and Deshraj are in his neighbourhood. When he came to his house at 5:00 A.M. on 02.06.1998, then he found that his daughter Poonia was not there. On making inquiry it was revealed that Deshraj, Prempal and Kehari had instigated her to bring out her clothes and ornaments one day prior to the incident. Roshan Lal told him that he had seen Suresh and Poonia going towards road side. Thereafter, he met Bhagwati who disclosed him that Suresh and Poonia were seen going together to Atrauli on motorcycle of Kallu. He waited for two days hoping that his daughter might return. When she did not return he lodged the F.I.R. on 04.06.1998. After 16-17 days, he went to Kalyanpuri in search of his daughter and then he found her at the house of Bhoop Singh and she was got recovered by the police from that place.
In cross examination he had stated that prior to the incident Suresh had been living at his house for the last eight months. Suresh was involved in the profession of dancing and singing. He further stated that Poonia was his youngest daughter. The eldest daughter was Pushpa who was aged about thirty years old and after bearing two more children Poonia was born.
9. Roshan Lal (PW-2) stated that he had gone towards the pond to ease at about 5:00 A.M. on 02.06.1998 then he had seen Suresh going towards kundis (tank) of the pond of the village. When he was returning back towards his house then Poonia was going towards the pond carrying cattle dung. Ram Swarup was making search of Poonia as such he had informed him. However, in cross examination he revealed and stated that he had no conversation either with Suresh or with Poonia at that time.
10. Poonia (PW-3) stated that when she was at her house, she was enticed by Suresh, Kehari, Deshraj, Prempal and Kallu. Three days prior to the incident, Kehari and Prem Pal talked to her and told that her father was not willing to marry her and they would arrange a good marriage in their relation. She was deceived by their talk. On the date of incident Kehari asked her to go with cattle dung towards the road. Then she went at the road, Suresh and Prempal were with her. Kallu and Kehari met her and they were standing there with their motorcycle. One day prior to the incident, the accused instigated to bring out her clothes and ornaments. Kehari asked Kallu to make her sit on the motorcycle and reach Atrauli. Thereafter she sat on motorcycle, which was driven by Kallu. Suresh also sat on motorcycle and reached Atrauli. From Atrauli bus stand she along with Kehari and Suresh boarded a bus and reached Delhi. They took her at the house of Bhoop Singh at Delhi. Both the accused, Kehari and Suresh committed rape upon her by putting her under fear of knife. They both kept her at Delhi for 16 days. Ram Swarup, Natthu, Rajendra and the police got her recovered from Delhi and brought her back and got her medically examined.
In cross-examination she stated that her name was Poonia and not Pushpa. The police did not record her statements. Suresh was living at her village for the last about 8 months. He was engaged in profession of singing and dancing. He did not visit her house. It is incorrect to say that he used to eat, live and take tea and milk at her house. He proposed to marry her but she was not willing. She asked him to talk to her parents and if they agreed then she would marry him. Suresh proposed to her parents for her marriage with Poonia, however, they refused. Suresh enticed and abducted her on the pretext of marriage. It is incorrect to say that she had married Suresh. She did not know that how all these things were recorded in her statement recorded under Section 161 Cr.P.C., by the Investigating Officer. When she went, she was 18 years old. After three months of her return, her marriage was performed. Kehari and Prempal had given some sedative substance in tea to her at the house of Prempal. Apart from that day, she never took tea with Prempal. Three days prior to her going, she was assured for her marriage. She did not go with the accused voluntarily. She was coming back after easing, when Suresh and Prempal asked her to accompany them then she went. She did not raise any alarm nor made any resistance. No person of her village met her at that time. Roshan met her at the pond. Roshan asked her as to where she was going then she had informed him that Suresh and Prempal were forcibly abducting her. Roshan is her cousin. Roshan did not raise any alarm nor tried to save and follow her. She went from her house wearing sari. Cattle dung were cleaned and sweeping was done by her at 4:00 AM. Motorcycle belonged to Kallu who was doing photography at Atrauli. She did not usually go to the house of Kallu, Suresh and Prempal prior to the incident. Except at Delhi nobody put her under fear of knife. She boarded a Roadways bus from Atrauli at 6:00 AM and reached Delhi at 5:00 PM. She did not make any complaint in the bus that she was being abducted. Her father Ram Swarup, Natthu, Nekse and Rajendra and others recovered her. Rambir son of her aunt (bua) was also with them.
Suresh abducted her from the village. He gave her some sedative substance in tea. She was taken on foot from the village. Kehari and Prempal did not participate in enticing and and abducting her. Kehari was her uncle and Prempal was her cousin. Kehari and Prempal did not commit rape upon her. She did not have any conversation with Kehari and Prempal prior to this incident. In her previous statements, she had named only Suresh.
11. Dr. Mamta Varshney (PW-4) stated that on 20.06.1998 at 11:00 PM, she conducted medical examination of Poonia. She did not find any mark of injury on her body. Pubic hairs were fully developed. There was no mark of any injury on her private part. Hymen was old torn. Two fingers could easily admit in her vagina. The victim was used to sexual intercourse. No opinion in respect of rape was possible. She sent vaginal smear for pathological test. She prepared her injury report (Ex-Ka-3). After examination of pathological and X-ray report, she prepared Supplementary Report (Ex-Ka-4), in which her age was determined to be above 18 years. She was found to have recently cohabited.
12. Statements of Ram Swarup (PW-1) is not relevant either for abduction or for rape by the accused. Ram Swarup (PW-1) admitted that Suresh was residing at his house for the last about 8 months. From statement of Ram Swarup (PW-1) only missing of the victim from 02.06.1998, lodging of FIR and recovery of the victim from the house of Bhoop Singh on 20.06.1998 was proved. Rest of his statements are hearsay.
13. Roshan Lal (PW-2) stated that he had seen Suresh going towards kundis (tank) of the pond of the village on 02.06.1998 at 5:00 AM. When he was returning back to his house then Poonia was going towards pond carrying cattle dung. He had no conversation either with Suresh or with Poonia at that time. From his statement, involvement of other accused was not proved. He had merely seen Suresh and Poonia separately in the vicinity of pond.
14. From the statement of Poonia (PW-3), it is proved that she was a major girl and developed intimacy with Suresh, who was living at her house for the last about 8 months as admitted by Ram Swarup. Suresh had also proposed marrying Poonia which was not accepted by Ram Swarup and his wife. Poonia went with Suresh to Delhi on 02.06.1998, taking her clothes and some ornaments etc. She had occasion to move in public places i.e. at bus stand Atrauli and from the Atrauli she boarded a Roadways bus and reached Delhi but did not raise any alarm which shows that she had voluntarily gone with Suresh and lived with him till 20.06.1998 in the house of Bhoop Singh, who was completely blind. From the recovery memo (Ex-Ka-2) and statement of SSI Prithvi Singh (PW-6), it is proved that she was recovered on 20.06.1998 along with Suresh alone. She stated that Kehari and Prempal had not participated in enticing and abducting of her. Kehari and Prempal did not commit any rape upon her. She did not have any conversation with Kehari and Prempal prior to this incident. Trial of Kallu had been separated.
15. In the medical examination report of the victim no external or internal injury was found on her private part. From the evidence on record abduction as well as rape committed by the accused was not proved rather it was proved that she was a consenting party to the entire incident. The trial court has given cogent reasons for acquittal. There is no circumstance to upset the finding recorded by the court below and substitute our with own contrary findings.
16. So far as charges under Section 368 IPC against Bhoop Singh is concerned, he had stated that he was totally blind. Poonia (PW-3) never complained to him that she was abducted and wrongfully confined at his house. From the evidence on record, it is proved that Poonia was a consenting party and voluntarily lived at the house of Bhoop Singh. Bhoop Singh never came to know that Poonia was abducted. Thus the Trial Court has rightly acquitted him.
17. In view of the aforesaid discussions, the appeal has no merit and it is dismissed.
Order Date :- 31.5.2019 Rahul Dwivedi/-
[Rajiv Gupta,J.] [Ram Surat Ram (Maurya),J.]