Akhilesh Ram vs State Of U.P.
2022 Latest Caselaw 22190 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 3179 of 2019
 

 
Appellant :- Akhilesh Ram
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Anwar Ali,Ashwani Kumar Rai,Mahesh Prasad Yadav,Sanjai Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1. This appeal is by the accused appellant challenging the judgment and order of conviction and sentence, dated 15.03.2019, passed by the I Additional Session Judge, Ballia in Session Trial No. 30 of 2015 (State of U.P. vs. Akhilesh Ram) arising out of Case Crime No.347 of 2015 Police Station Sukhpura, District Ballia, whereby the accused appellant has been convicted and sentenced to life imprisonment under section 376 IPC read with sections 3 & 4 of the Protection of Children from Sexual Offences Act with fine of Rs.10,000/- and in default of fine he is to undergo six months imprisonment and has also been convicted and sentenced to one year simple imprisonment under section 506 IPC with fine of Rs.1,000/- and in default of fine he is to further undergo one month imprisonment. All the sentences are to run concurrently.

2. Record reveals that a First Information Report came to be lodged on 07.07.2015 as Case Crime No.347 of 2015 under Sections 376, 506 IPC and 3/4 of the Protection of Children from Sexual Offences Act, Police Station Sukhpura, District Ballia by the first informant Prabhunath Paswan, who happens to be the brother of the victim, with the allegation that he is a resident of village Dhanidhara, Police Station Sukhpura, District Ballia and is a labourer and was out of village for about 6-7 months in connection with work. Alongwith his aged parents his sister (victim) aged 15 years were residing in the village. It is alleged that under well thought out strategy the accused appellant aged 25 years subjected the victim to rape and on account of threats extended to the family members no report was lodged by them. The victim became pregnant and is carrying pregnancy of five months. When the accused appellant was confronted his entire family joined him in threatening the victim and the informant and as no action was being taken by the local police F.I.R. was requested to be lodged for necessary action in the matter.

3. Pursuant to the aforesaid FIR lodged the investigation proceeded. The victim was medically examined by the Medical Officer at Ladies Hospital, Ballia. In the medico legal report and supplementary report dated 08.07.2015 (Ex.Ka.2 and Ex.Ka.3) no internal injury was found on the victim, although pregnancy of 28 weeks 4 days was noticed in it. In the radiological report age of the victim has been determined as 18 years.

4. During investigation the statement of the victim under sections 161 Cr.P.C. and 164 Cr.P.C. were recorded. After recording the statements of other witnesses the investigation concluded with submission of charge sheet against the accused appellant, on which the Magistrate took cognizance and committed the case to the court of sessions. Charges accordingly were framed against the accused which he denied and consequently the trial commenced.

5. The prosecution in order to establish the charges levelled under section 376 IPC read with section 3 & 4 of POCSO Act against accused appellant has produced documentary evidence in the form of statement of victim under section 164 Cr.P.C. as Ex.Ka.1, medico legal report as Ex.Ka.2, supplementary medico legal report as Ex.Ka.3, written report as Ex.Ka.4, charge sheet as Ex.Ka.5, F.I.R. as Ex.Ka.7 and site plan with index as Ex.Ka.6.

6. In addition to above the prosecution has adduced oral testimony of victim as PW-1, Dr. Sangam Singh as PW-2 who has conducted the medical examination of victim, Nand Lal Paswan (PW-3) who is the uncle of victim, Prabhunath Paswan (PW-4) who is the first informant and brother of the victim and Suresh Singh as PW-5, who is the investigating officer.

7. PW-1, who is the victim, in her examination in chief has supported the prosecution case by stating that on the date of incident her parents had gone to her relatives place. Her two elder sisters were already married and husband of one of the sisters had also died. The victim claims to be illiterate and has alleged that between her family and the family of co-accused Bindu a dispute arose on account of throwing of garbage a few days prior to the incident. In the cross-examination PW-1 has stated that the co-accused Bindu had called her at about 1.00 in the afternoon to her place and that she was subjected to rape by the accused appellant. She has stated that her attempts to raise alarm were resisted by tying a cloth around her face. She has stated that repeatedly rape was committed upon her by the accused appellant but she did not inform anyone.

However, when the victim was further cross examined on 04.09.2018 she has not supported the prosecution case. She admitted that on account of a dispute relating to landed property she has taken the name of the accused appellant, although no such offence of rape has been committed upon her.

8. PW-3 and PW-4, who are the uncle and brother of victim/first informant, have turned hostile.

9. PW-5, who is the doctor, has proved the medical examination report and has stated that the victim was pregnant and no injuries otherwise have been found on the victim. For the purpose of conducting DNA test in order to determine the paternity of child samples were sent but no DNA test report has been brought on record during the course of trial. In the opinion of the doctor the victim could be around 21-22 years old on the date of her medical examination.

10. During the course of trial the accused appellant was confronted with the incriminating material under section 313 Cr.P.C. in which he claimed that he has been falsely implicated in this case due to enmity.

11. On the basis of oral and documentary evidence, thus adduced, the trial court has held the accused appellant guilty of charges levelled against him and has consequently convicted and sentenced the accused. Aggrieved by the judgement and order of conviction and sentence the accused appellant has preferred the present appeal before this Court.

12. Learned counsel for the accused appellant submits that the court below has not taken into consideration the subsequent statement of the victim in which she has denied the incident and, therefore, the court below has erred in passing the impugned judgement and order of conviction.

13. Learned A.G.A. for the State, on the other hand, submits that the subsequent statement of the victim has been obtained on account of undue influence exercised by the family of the accused. It is contended that since the victim in her earlier statement has supported the prosecution case and the victim became pregnant and has also given birth to a child, therefore, the conviction and sentence of the accused appellant suffers from no infirmity.

14. We have heard learned counsel for the parties and have perused the records of appeal and also the lower court records.

15. From the facts as have been placed on record it transpires that First Information Report in the present matter has been lodged on 07.07.2015 without specifying any date, time and place where offence was committed upon the victim by the accused appellant. The statement of victim under section 164 Cr.P.C. discloses the date of incident to be 11.11.2014. It is, therefore, apparent that for a period of almost eight months no report was lodged by the victim in respect of the alleged incident.

16. The witnesses of fact, who have been produced by the prosecution namely PW-3 and PW-4 have turned hostile. PW-3 who is the doctor has clearly opined that the victim was above 18 years of age on the date of her medical examination. In his cross examination the doctor has rather opined that victim's age could be 21-22 years on the date of her medical examination. Even if the incident occurred 7-8 months prior to her medical examination yet it can safely be deduced that the victim was major on the date of alleged occurrence of incident. The victim/PW-1 in her statement has also admitted that she was around 19-20 years of age and that she was about 23 years on the date when she was cross-examined on 04.09.2018. She has also admitted in her statement that for a period of almost six months she did not disclose the incident of alleged rape to anyone in her family. The victim in her statement made on 04.09.2018 has also disowned the prosecution case and has clearly stated that no offence of rape was committed upon her by the accused appellant.

17. The records otherwise reveal that after the subsequent statement was made by the victim on 04.09.2018 the prosecution has made no attempt to further question the victim in order to prove falsity in her subsequent stand. No attempt was made by the prosecution to show that her subsequent statement made on 04.09.2018 was either false or was obtained under some coercion or duress.

18. On the aspect of age the evidence available on record in the form of the statement of doctor clearly shows the victim to be above 18 years of age. She could be 21-22 years on the date of her medical examination as per the doctor. According to the prosecution the only material to prove the minority of the victim is the school certificate which has not been proved. No question in that regard has otherwise been put to accused appellant under section 313 Cr.P.C. In such circumstances, the finding recorded by the court below that victim is minor is found to be based on no evidence and is rather contrary to the weight of evidence on record.

19. In the facts of the present case it is apparent that the victim was major on the date of alleged incident and the finding returned by the court below that she was minor cannot be sustained. There is no injury found on the victim nor any oral testimony has come on record to support the prosecution case with regard to commissioning of offence of rape upon the victim. The victim too in her statement made on 04.09.2018 has specifically stated that no offence of rape was committeed upon her by accused appellant. The circumstances also show that victim never raised any grievance regarding offence of rape and possibility of relationship being consensual also cannot be ruled out. In such circumstances, we find that the finding recorded by the court below that the accused appellant had committed rape upon the victim cannot be sustained.

20. From the materials placed on record, including the opinion of the doctor, it transpires that the victim on the alleged date of incident was major and she did not disclose about the incident to anyone for six months. This clearly gives an impression that she was a consenting party to the physical relations, if any. The parentage of the child has otherwise not been established by the prosecution by producing DNA Test report.

21. In view of the evidence available on record we have no hesitation in holding that the conviction and sentence of the accused appellant is not sustainable on the basis of material available on record and the prosecution has failed to prove the guilt of the accused appellant beyond reasonable doubt.

22. Accordingly, the present appeal succeeds and is allowed. The impugned judgement and order of conviction and sentence dated 15.03.2019 is hereby set aside. The accused appellant is reported to be in jail for nearly eight years, who shall be set free, forthwith, unless he is wanted in any other case subject to compliance of section 437-A Cr.P.C.

23. Let a copy of this order be sent to the concerned Chief Judicial Magistrate for necessary compliance.

Order Date:- 21.12.2022

Ashok Kr.