Murati Devi vs State Of U.P. And Anr.
2014 Latest Caselaw 4170 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 300 of 2014
 

 
Applicant :- Murati Devi
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- A.P. Tewari,S.S. Tripathi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Uma Nath Singh,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

The aforesaid Criminal Appeal has been preferred by complainant Murati Devi w/o Ram Sharan Nishad against impugned judgment and order of acquittal dated 2.07.2014 passed by Additional Sessions Judge, court no.5, Gorakhpur in Sessions Trial No.55 of 2013, State Vs. Aniruddha Yadav arising out of Case Crime No.265 of 2012 for offence under Sections 376, 323, 504, 506, 450 IPC, police station Chauri Chaura, district Gorakhpur.

We have heard learned AGA for the State and the learned counsel for the accused-respondent and perused the entire record as available on the file.

Briefly stated the case of the prosecution, as it appears from perusal of the certified copy of the impugned judgment has its genesis in the typed complaint of Murati Devi w/o Ram Sharan Nishad, r/o Gaunar Tola Maunababari, police station Chauri Chaura, district Gorakhpur, addressed to the Senior Superintendent of Police, Gorakhpur on 5.9.2012, wherein, allegations were made against one Aniruddha Yadav alleging, inter allia, that accused committed rape on her in his clinic/shop and caused hurt besides threatening to kill her, while she had gone for treatment of her tooth. As per description contained in the first information report, the prosecutrix went to the clinic of accused Aniruddha Yadav, who runs clinic at Mohammadpur crossing. While she was present in his clinic, she was given injunction, which rendered her unconscious and in the meantime, accused committed rape on her. When she regained her conscious, she saw Aniruddha committing rape on her. She asked her not to do the same whereupon she was beaten by kicks and fists and threatened at gun point to the extent that, in case, the offence is disclosed to anyone, she an her family will not be spared. The first information report further alleges that accused committed rape on the prosecutrix several time at her home, as well.

The aforesaid report was lodged at Case Crime No. 265 of 2012 for offence under Sections 376, 323, 504, 506, 450 IPC at police station Chauri Chaura, district Gorakhpur. The investigation took place and the medical examination of the prosecutrix was done on 7.9.2012 and 10.9.2012 (Exhibit Ka-1 and Ka-2). Site plan of the incident was prepared, which is Exhibit Ka-6. The Investigating Officer got recorded statement under Section 164 Cr.P.C. of the prosecutrix on 20.9.2012. After completing investigation, chargesheet (Exhibit Ka-7) was submitted for offence under Sections 376, 323, 504, 506, 450 IPC against accused-respondent Aniruddha Yadav. Thereafter the matter was committed to the court of Sessions. Consequently, trial against aforesaid accused commenced.

Accused was heard on the point of charge and prima facie, ground was found existing against the accused under Sections 376, 323, 504, 506, 450 IPC. Accused person denied the aforesaid charges and claimed to be tried.

To prove its case, the prosecution produced as many as five witnesses- Dr. Neena Tiwari P.W.1, S.I. Ghanshyam Mani P.W.2, Murati Devi (complainant) P.W.3, Kalawati Devi (mother-in-law of the complainant/victim) P.W.4 and S.I. Mithlesh Kumar Mishra P.W.5.

After closure of the evidence for the prosecution, statement of the accused was recorded under Section 313 Cr.P.C., wherein the prosecution allegations were denied and accused persons claimed their innocence and submitted that the accused Aniruddha Yadav has acquaintance with Ram Pravesh, a co-villager of prosecutrix village. One litigation is going on between Ram Pravesh and the prosecutrix and the accused assists Ram Pravesh in his litigation, therefore, this false case has been registered. Further stated that he got enrolled the prosecutrix as member of 'Azad Express/Garv India Auto Retail Ltd.' and money was deposited in her name by the accused; when he asked for the money, he was threatened by the prosecutrix that he will be implicated in a false case. Accused has filed papers, which elaborately find mentioned in the judgment of the trial court and the same will be taken note of by us, as and when, the reference so requires. The courts below after hearing both the parties on merits and considering the material on record, found charges not proved beyond any reasonable doubt and acquitted the accused.

Hence, this appeal.

The basic point involved for consideration before us relates to the fact whether the trial court was not justified in recording finding of acquittal in relation to the charges framed against accused?

On careful perusal of the entire judgment of the trial court, it is apparent that the prosecutrix has given description of incident, at great variance. In this context, the medical report, as was prepared by the Dr. Neena Tiwari P.W.1 discloses that no injury was found on the person of the prosecutrix. No injury was also found on her private part. It is obvious that prosecutrix is blessed with two children. Similarly, the date of the incident has not been specifically mentioned in the first information report. The version of date of incident is not established. She testified before the trial court that the date of the incident was 7th instant of 'jeth month'. This date falls to 7th May, whereas the first information report was lodged on 6th of September, 2012 and as per description in court, prosecutrix claims that the incident took place one month prior to lodging of the report. Relevant to mention that the prosecutrix has stated that as soon as rape was committed on her, she informed about the same to her husband and a report was handed over to the police on the same day, but what report was given to the police, has not been clarified. We further notice that the prosecutrix is an illiterate lady. She has stated that the report she got typed her report by the help of his lawyer. The words used in the written report make out case of an educated person. Further, the site plan, Exhibit Ka-6, shows position of the shop/clinic to be one room shop with shutter, opening on the main road. If version of the prosecutrix is believed, then it is beyond comprehension that a person committed rape for about half an hour on a lady in half naked position but no one noticed it while there are a number of adjoining shops of the same nomenclature - say - one room shops. As per version of prosecutrix, she was rendered unconscious when the rape was committed and it continued when she regained consciousness. We, on careful perusal of testimony of the prosecutrix, find that she is giving varying description of incident at different stages and this stage starts right from the moment when the typed first information report was prepared and her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C.; and lastly the stage when her testimony was recorded before the trial court. Her testimony taken as a whole, renders the witness unworthy of credit. A man of ordinary prudence will hardly believe integrity of such varying statements. First information report is admittedly belated one - by not less than one month. The husband of the prosecutrix is an employee of office of 'Danik Jagran News paper' in Gorakhpur. Had any incidence been taken place, as alleged by the prosecution, and police did not take any action despite report being made to the police, then the husband of prosecutrix could have taken help of his employer to urge his grievance but the prosecutrix and the entire prosecution is silent on this aspect of lodging the FIR at inordinate delay. There are so many other aspects, which add to reasonable doubt on the prosecution story. We may take note of the statement recorded under Section 161 Cr.P.C. of Kalawati P.W.4, who is mother-in-law of the prosecutrix, which statement do not corroborate the prosecutrix in material particulars. Similarly, the theory of repeated rape at her (prosecutrix) home by the accused, is also falsified by her varying statement.

We notice that the Investigating Officer inquired from the neighbouring shops/ shopkeepers about any incident having taken place at the clinic of the accused whereupon all the neighbouing shop-keepers expressed their ignorance about any such incident.

It is correct that the sole testimony of prosecutrix is sufficient to convict a person in a rape case but the court has to bear in mind that the same should be credible, consistent and must inspire confidence and force to the prosecution story. If testimony produced on record shows that the witness is motivated or that she is not interested in telling the truth and the testimony so rendered by her is full of infirmities then the sole testimony of the prosecutrix will not be sufficient to record conviction. Further, the appellant could not show any perversity in the judgment impugned, which may warrant interference at this stage.

In view of above, it cannot be said that the view taken by the trial court is either erroneous or not based on material on record. We may again observe that the finding of acquittal recorded by the trial court in relation to the aforesaid charges are found to be based on material on record. If the prosecutrix herself is giving varying testimony, which does not inspire confidence and shakes her credit then the result that will follow will be acquittal and acquittal alone.

We may conclude that the grounds urged in support of this appeal sans merit and judgment of acquittal delivered by the trial court is accordingly affirmed by us.

Consequently, appeal is dismissed.

Leave to appeal is refused.

Let copy of this order be certified to the court concerned.

Dt.8th August, 2014

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