Allahabad High Court
Km. Rani vs The State Of U.P. And Another on 27 November, 2014
Bench: Rakesh Tiwari, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 36
Case :- CRIMINAL APPEAL DEFECTIVE U/S 372 CR.P.C. No. - 497 of 2014
Appellant :- Km. Rani
Respondent :- The State Of U.P. And Another
Counsel for Appellant :- J.P. Singh,D.P. Singh
Counsel for Respondent :- Govt.Advocate
Hon'ble Rakesh Tiwari,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(By Hon'ble Vijay Lakshmi, J)
Re. Criminal Misc. Delay Condonation Application No. 388118 of 2014
Heard learned counsel for the appellant and learned AGA on the application for condonation of delay in the filing of the appeal.
The application under Section 5 of the Limitation Act has been filed by the appellant to condone the delay of 19 days in filing the appeal on the ground that being a poor lady she could not arrange money required for counsel fee, typing expenses, clerk charges etc. within the time. The cause shown appears to be sufficient. The delay is not inordinate, hence the application is allowed and the delay in filing the appeal is hereby condoned and the appeal is herd on admission.
Re. Order on admission of appeal.
The victim/ prosecutrix has preferred this appeal under section 372 Cr.P.C. against the judgment and order of acquittal dated 6.8.2014 passed by the Additional Sessions Judge, Room No. 5, Kanpur Nagar, in S.T. No. 1337 of 2010, State of U.P. Vs. Chhote Lal, arising out of Case Crime No. 37 of 2010, under sections 376, 506 and 384 I.P.C. Police Station Gwaltoli, District Kanpur Nagar.
We have heard learned counsel for the appellant and learned AGA on the point of admission and have gone through the records.
The prosecution story in brief is that on 8.3.2010 a written report was lodged at Police Station Gwaltoli, District Kanpur Nagar, by the prosecutrix herself mentioning therein that she is aged about 17 years. She uses to sell vegetables in Sabzi Mandi. Accused Chhote Lal also sells vegetables near her shop. On 21.2.2010 Chhote Lal took her to 'Godam' No. 12/203 on the pretext of giving her potatoes at cheap rates. On reaching there, he closed the doors of the Godam from inside and forcibly committed rape on her. The accused demanded Rs. 500/- from her. As she had no money with her, she delivered to him 250 Gms of silver, kept in her house. The accused also threatened to kill her.
On the basis of this written report Case Crime No. 37 of 2010 under section 376 I.P.C. was registered against accused Chhote Lal on 8.3.2010. The matter was investigated and the police submitted charge sheet. The case being triable by the court of Sessions, it was committed to the Court of Sessions where charges were framed and trial commenced. The prosecution in order to prove its case produced only two witnesses of fact. The prosecutrix examined herself as PW1 and her mother Gita as PW2. The rest three witnesses are doctor, I.O. and constable Moharrir, who has prepared the chick FIR. The defence also produced two witnesses. The learned court below after scanning the evidence found the prosecution case totally unreliable and acquitted the accused.
Aggrieved by the aforesaid judgment of acquittal the prosecutrix has filed this appeal assailing the correctness and validity of the judgment on the following grounds:
1. The learned Sessions Judge has not considered that the age of the prosecutrix was about 15 years at the time of occurrence.
2. The learned trial court, without considering the fact that the PW1-prosecutrix and PW2 her mother have supported the prosecution story in their testimony, has acquitted the accused - respondent on the basis of surmises and conjectures without properly appreciating the evidence.
After having heard learned counsel for the appellant and considering the facts and circumstances of the case we are of the firm view that the learned trial court has rightly acquitted the accused - respondent. The reasons are as follows:-
By a perusal of the statement of PW1 (prosecutrix), it is evident that although she has repeated the FIR version in her examination in chief but during cross examination she has clearly stated that a false case was concocted against the accused Chhote Lal due to enmity. She has stated that in February 2010 her mother and Chhote Lal had some quarrel and since then both the families were not in talking terms with each other. After some time the relations between both the families became worse. She has admitted that Mohd. Zafar is an Advocate. Due to enmity with accused Chhote Lal, her family asked Mohd. Zafar, Advocate, to fabricate a case against the accused and to draft an application accordingly. She had asked Mohd Zafar to prepare a case of rape against the accused. On this, Mohd. Zafar, Advocate, had instructed his family members that what he was writing in the application, they should depose the same story in the court. She has stated that she had given at the police station the same application drafted by Mohd. Zafar, Advocate, in fact Mohd. Zafar has instituted this case. It is also to be noted that although she has admitted her thumb impression on the FIR, admittedly drafted by the Advocate but she has stated that she does not know its contents as the application was written by the Advocate according to his own will. Her Advocate never told her what he had written in the application. She is not even able to tell the time when the occurrence took place. She could not tell whether it was day or night at the time of occurrence.
The statement of PW2 Smt. Gita, mother of the prosecutrix, also shows that even she is unable to tell the date, month and even year of the occurrence. The medical examination report of the prosecutrix does not support the story of rape as no internal or external injury has been found on the body of the prosecutrix and she has been found used to sexual intercourse. Therein an inordinate delay of 16 days in lodging the FIR and the explanation for such delay is evident from the statement of prosecutrix herself, who has categorically stated that it was drafted after due consultation and deliberation on the advice of Mohd. Zafar, Advocate.
In the circumstances no other view is possible except the acquittal of the accused-respondent. We find no infirmity or illegality in the judgment impugned. The appeal is without any force and deserves to be dismissed at the admission stage.
The appeal is accordingly dismissed.
Order Date :- 27.11.2014
Pcl
