Allahabad High Court
Bhoop Ram vs State Of U.P. And Another on 12 December, 2022
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 43
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 6753 of 2011
Appellant :- Bhoop Ram
Respondent :- State of U.P. and Another
Counsel for Appellant :- Manoj Kumar Srivastava
Counsel for Respondent :- Govt. Advocate
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
List of cases in the additional cause list has been revised. None appears for the appellant in the present appeal. On the earlier three occasions also the case was deferred due to non-appearance of the appellant's counsel. Considering the fact that the appeal is more than 11 years old, we have proceeded to examine the records of the appeal as well as records of the court below so as to consider the appeal on the question of its admission.
This appeal under section 372 Cr.P.C. has been filed by the appellant challenging the judgment and order dated 02.11.2011, passed by Additional District and Session Judge, Court No.12, Bareilly in Session Trial No.779 of 2009 (State vs. Shanker) arising out of Case Crime No.314 of 2008 under Section 376 IPC, Police Station Shishgarh, District Bareilly, whereby the accused respondent has been acquitted.
The prosecution case, in brief, is that informant's daughter aged about 16 years was collecting leaves for feeding her animals when the accused entered the fields, armed with country made pistol, and on the threat extended by him the victim was subjected to rape. After an alarm was raised by the victim several persons, including Siya Ram son of Munni Lal, came at the place of occurrence and the accused fled. On the basis of such written report the FIR was registered under section 376 IPC and ultimately charge sheet was filed. The accused denied the charges and demanded trial.
In order to prove its case the prosecution has produced PW-1, father of the victim, who has supported the FIR allegation. PW-1, however, is not an eye-witness. The incident is of 28.11.2008 at 04.00 PM whereas the report was lodged on 30.11.2008. On the date of incident PW-1 admittedly was not present in the village and his statement does not carry much weight apart from offering explanation with regard to delayed lodgement of FIR.
The victim has been produced as PW-2. She has supported the prosecution case and has stated that while she was collecting leaves the accused came armed with country made pistol and dragged her to his field and subjected her to rape. The victim has been medically examined by PW-4, who found no mark of injury on the victim and in her internal examination also no injuries were found on the victim. Her hymen was found torned. Pathological report did not show any spermatozoa or semen on the victim. The medico legal report, therefore, has not supported the occurrence of rape upon the victim.
The court below has examined the defence of accused as per which a sum of Rs.35,000/- was taken as loan by the informant from the father of accused, and that is why a false case has been instituted to pressurize the father of accused not to press for return of his money. The court below has also found that though it is alleged that the victim was dragged for nearly 35 paces but no injuries of any kind have been shown on her. Considering the fact that specific reason for false implication has been disclosed and the medico legal report does not support the occurrence of rape and the statement of PW-2 has otherwise not been found convincing, the court below has acquitted the accused by extending him benefit of doubt.
One of the other factor weighed with the court below for passing the order of acquittal is that the accused and sons & brother of informant had gone to Punjab for their gainful employment and when the demand was made for Rs.35,000/- the informant's son assaulted the accused's sister who died. It has been alleged that false case has been lodged only in order to create defence in the case of murder of sister of accused. The date of murder of accused's sister is 29.11.2008.
We have perused the original records and statement of accused under section 313 Cr.P.C. has been examined by us in which the factum with regard to lodgement of FIR on 30.11.2008 under section 302 IPC has been referred to.
The view taken by the court below to acquit the accused by doubting the prosecution case is clearly a permissible view. The medical evidence otherwise does not support the commissioning of rape. No injuries on the victim also creates doubt upon the prosecution case that the victim was dragged for 35 paces in the field of the accused.
In that view of the matter we find that the view taken by the trial court is a permissible view and merely because a different view could be taken in the facts cannot be a ground to interfere with the judgment and order of acquittal. The appeal lacks merit. We, thus, reject it summarily by invoking our jurisdiction under section 384 Cr.P.C.
Order Date :- 12.12.2022
Ashok Kr.
