Allahabad High Court
State Of U.P. vs Sushil on 17 April, 2014
Bench: Amar Saran, Kalimullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 46
Criminal Misc.Application No.Nil of 2014
In
Case :- GOVERNMENT APPEAL No. - 726 of 2014
Appellant :- State Of U.P.
Respondent :- Sushil
Counsel for Appellant :- G.A.
Hon'ble Amar Saran,J.
Hon'ble Kalimullah Khan,J.
This government appeal has been filed against the judgment and order dated 31.10.2013 of the Additional District and Sessions Judge, Court No.6, Bijnore, acquitting the accused respondent u/s 328, 366, 376 IPC in S.T. No.89 of 2013. The case based on the FIR, which was lodged on 4.9.2012, at 2.55 p.m. was that the victim had gone to work in Dr. Rita Tyagi's Hospital on 3.9.2012, at about 8.00 a.m. and when she did not return till evening on 3.9.2012, a search was made for her. On 4.9.2012, it was learnt that the victim had gone along with the accused respondent Sushil to quarter no.688 and he had given her some intoxicating substance and had detained her there. Then the informant, Ram Prasad, father of the victim, along with his nephew Bhupendra and son Jaiveer went to the said quarter and saw the victim with the accused-respondent in a compromising position. The victim started crying on seeing them and alleged that the accused respondent had enticed her away with him and had forcible intercourse against her will. After apprehending the victim and the accused respondent at about 2.00 p.m. the informant took them to the police station, where a report was lodged u/s 328, 363, 366 IPC. After investigation, charge-sheet was filed u/s 328, 363, 366, 376 IPC. However, charge against accused was framed u/s 328, 366, and 376 IPC. He denied the charge and claimed his trial.
The victim had deposed that she had gone to Dr. Rita Tyagi's Nursing Home and was returning at about 5.00 p.m. when the accused respondent met her near the Post Office and applied a handkerchief to her face and she fainted and then the accused respondent took her from the place of abduction and when she woke up she found herself with the accused respondent in the room where he had intercourse with her against her will. The father, cousin brother and brother had got her released her from his custody at 2.00 p.m. The statements of P.W. 2 and P.W.3 have also been recorded, which are to the same effect that they saw the victim in a compromising position with the accused respondent and they had then taken the accused respondent to the police station. The victim was medically examined by Dr. Savita Gupta (P.W.4) at 10.10 p.m. She found that the hymen torn old healed and vaginal opening admits two fingers. As per the X-ray report, the joints of right elbow, right knee and right wrist were fused. She could give no opinion of the victim having been subjected to rape. The Trial Judge has acquitted the accused respondent on the grounds that the prosecution has failed to establish that the accused respondent had subjected her and committed intercourse with her by making her smell the handkerchief in the evening at 5.00 p.m. on 3.9.12 and had committed the said acts till 4.9.2012 at 2.00 p.m. in the said quarter.
Regarding the age of the victim, it was alleged that as per the High School certificate, the date of birth of the victim is 25.8.1997, but P.W.6, Gajraj Singh, Clerk of Gita Inter College, stated that she was admitted in the college on 1.7.2010 in Class-IX and she appeared in the High School in the year 2012. He has verified her age on the basis of Class-VIII T.C. The father of the victim, Ram Prasad, stated that he had no proof regarding the actual age of the victim. However, he denied the age of the victim as determined by the medical examination. In fact, as per the ossification test, the age of the victim would have been 20 or 21 years.
Learned A.G.A. initially argued that as per the Juvenile Justice Act, the age of the victim will primarily be determined on the basis of High School certificate, but he conceded that as the offence is under the IPC, the procedure of Cr.P.C. and Evidence Act will apply and not the Juvenile Justice Act, which applies either to a child in need of care and protection or a juvenile in conflict with the law.
On the date of incident i.e. on 3.9.2012, the legal position of Section 375 IPC clause sixthly was that a man could be held guilty of rape for having intercourse with a woman irrespective of the consent of the victim only if she was under 16 years of age. Undisputedly, the radiological age of the girl was 20 to 21 years on the date of the incident. The fusions of her wrist, elbow and knee joints were complete. Even if two years margin were given on the lower side to the aforesaid radiological age the victim appears to be above 18 years of age on the date of the incident.
The fact that the victim was allegedly taken by the accused three kilometers away from the place of abduction to quarter no.688 and she remained there for about 21 hours with the accused without raising any hue and cry and she was seen by the informant and witnesses in a compromising position with the accused is by itself suggestive of the fact that she was a consenting party. It cannot be said that she was in an intoxicated condition throughout the period, she remained in the company of the accused and the sexual intercourse with her was done by the accused while she was under intoxication. Had she been intoxicated throughout, she would not have raised an alarm on noticing the arrival of her father and brothers because she could not have even noticed their presence.
In this aforesaid scenario of facts and evidence on record, it cannot be said that the finding of acquittal recorded by the trial court is not a possible view. There does not appear any perversity or illegality in the order of acquittal recorded by learned trial court. Leave to appeal is, accordingly, refused.
Order Date :- 17.4.2014
m.a.
