State Of U.P. vs Firoj
2022 Latest Caselaw 14842 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on :01.08.2022
 
Delivered on:21.10.2022
 
Court No. - 48
 
Case :- GOVERNMENT APPEAL No. - 411 of 2019
 
Appellant :- State of U.P.
 
Respondent :- Firoj
 
Counsel for Appellant :- G.A.
 
Hon'ble Suneet Kumar,J.

Hon'ble Syed Waiz Mian,J.

Per Hon'ble Syed Waiz Mian,J.

1. By means of this Criminal Misc. Leave Application, on behalf of

the State, leave for filing Government Appeal, against the impugned

judgment and order of acquittal of accused/respondent Firoz, dated

06.05.2019, passed by the Special Court (POCSO Act, 2012)/ VIIIth

Additional Sessions Judge, Meerut, arising out of Criminal Case No.

498 of 2016, State vs. Firoz, is being sought.

2. Heard Shri Om Prakash Mishra, Learned A.G.A. for the State.

3. In brief, the prosecution story is that informant, Rajendra,

informed that 3-4 days earlier his wife had gone to Sisauli. His three

children, were present in his house; on 12.10.2016, her daughter

Sangeeta, aged about 17 years, at about 10 p.m. had gone to drink

water at the tap installed out side his house; all of a sudden accused/

respondent, having knife in his hand, came behind her and trapped

her mouth and brought her in vacant room of his house, where he

committed rape upon her; she informed the informant telephonically;

when he come back, she narrated the entire story to him, whereafter

he lodged an First Information Report, registered as Case Crime No.

267 of 2016, under Sections-342, 376 I.P.C. and Section ¾ of

Protection of Children From Sexual Offences Act, 2012, at Police

Station-Rohta, District-Meerut.

4. Upon entrustment, the investigating officer took over charge of

the investigation and recorded the statements of the informant,

accused, and of victim under Section 161; statement of victim was

also got recorded under Section 164 Cr.P.C.; he also prepared site

plan of the alleged place of occurrence; during investigation, the

victim was put to medical examination, not only to ascertain her

age but also to ascertain any mark of injury on her person and

status of alleged rape.

5. Upon collecting the incriminating evidence against the

accused/respondent, for offences under Sections 342, 376 I.P.C. and

Section ¾ of Protection of Children From Sexual Offences Act,

2012, Investigating Officer forwarded the charge sheet under

Section 173 (2) Cr.P.C. to the Court concerned. Upon receiving the

charge sheet and other material, learned Court below in exercise of

powers enshrined under Section 190 (2) Cr.P.C., took cognizance of

the aforestated offences against the accused/respondent and

accordingly summoned him.

6. Learned trial Court vide order dated 15.01.2018 charged the

accused and the same were explained and read over to him; he

denied the charges and claimed trial.

7. Prosecution to prove it's case, examined informant-P.W.-1

Rajendra, P.W.-2 victim-Sangeeta, P.W.3-Smt. Nirmala w/o

Rajendra, P.W.-4-Dr. Isha Soni, P.W.-5 Dr. Sangeeta, P.W.6-Head

Constable Police-Deepa Sharma, P.W.-7 Bhole, victim's uncle and

P.W.8- investigating officer, Sub Inspector-Rajendra Singh.

8. Statements under Section 313 of Cr.P.C. of

accused/respondent was also recorded. He in his statement said

that the evidence of P.W.-1, P.W.-4, was false and statement of

P.W.-3 victim was given under the pressure of her uncle Bhole and

the victim told about the occurrence to Doctor was also under the

pressure of her uncle. He has also said that he has been falsely

implicated in this case upon pressure exerted by Bhole because

prior to the present case a dispute regarding transaction of money

was existing between him and Bhole and due to pre-existing

enmity he has been falsely implicated in this case by Rajendra,

brother of Bhole. He claims that he is innocent and he denied his

complicity in the crime; he declined to adduce evidence in his

defence.

9. Upon hearing the submissions on behalf of the parties, and

scanning the records, learned trial Court found that the prosecution

has failed to prove the charges under Section 342, 376 and ¾ of

Protection of Children from Sexual Offences Act, thus, trial Court

did not find the accused guilty under the aforesaid sections and

consequently, acquitted him.

10. On behalf of the State, leave to file Government Appeal,

under Section 308 (3) Cr.P.C. is being sought on the ground that

the learned trial Court has not properly appreciated the evidence

adduced by the prosecution and merely on the strength of

conjectures and surmises and also on basis of minor contradictions

Court has recorded finding of acquittal of the accused, whereas,

there is clinching evidence specifically of P.W.-7 Bhole, on record

but the same has not been relied upon.

11. Learned Court below has not made proper appraisal of

evidence on record and by acquitting the accused from charges

under aforementioned sections, learned trial Court has grossly erred

in law and hence the impugned judgment and order is not

sustainable and the same deserves to be set aside by this Court

and accordingly, the leave to file Government Appeal against the

impugned judgment and order be granted.

12. Heard learned A.G.A. at length and perused the record.

13. At the time of alleged commission of occurrence of incident,

P.W.-1 Rajendra, P.W.-7-Bhole and P.W.-3 Smt. Nirmala, were not

present and in the First Information Report it is averred that at the

time of instant occurrence, wife of the informant Rajendra, was

staying at Sisauli, at the house of her sister. It is also not alleged

in the First Information Report that the informant himself was

present at his house; he has simply averred in the application

Exhibit-Ka-1, that at the time of the alleged occurrence his three

sons and two daughters, were present at his house. It is also

alleged in the First Information Report that his daughter/ victim

had apprised him about the incident telephonically, thus, the First

Information Report, Exhibit-Ka-1, is based on the information

allegedly, given by his daughter upon returning to his home. First

Information Report, as well as, the statements of the P.W.-1-

Rajendra, P.W.-3 Nirmala and P.W.-7 Bhole, who happens to be

uncle of the victim are indirect evidence under the provisions of

the Indian Evidence Act, need to be corroborated from the direct

evidence. Direct evidence is the best evidence and obviously such

evidence can form the basis of conviction of the accused, because,

under law number of witnesses to prove the charge is not

essential, therefore, at the outset, it is necessary to consider the

deposition of victim-P.W.-2.

14. P.W.-2 victim, during investigation, has got recorded her

statement under Section 161 Cr.P.C. by Rima Chauhan, Sub

Inspector and under Section 164 Cr.P.C. was recorded by the

Magistrate concerned.

15. P.W.-5, Dr. Sangeeta Gupta, is said to have conducted the

medical examination, prepared the medical report of victim and

also recorded the statement of the victim during her medical

examination. In the statement she has stated that on 13.10.2016

she was posted as Senior Consultant in the District Women

Hospital and on that date victim was brought by the lady

constable for her medical examination in connection with the

present case; the victim had told her that she is 17 years old and

she has done medical examination of the victim with the consent

of the victim as well as his uncle Bhole.

16. P.W.-5, Dr. Sangeeta Gupta, further states that at the time of

medical examination she had recorded the statement of the victim

to the effect that the victim had told her that on 12.10.2016, at

around 10 to 10:30 p.m. Firoz had not committed the incident

with her; therefore no internal or external mark of injury was

found on her person; she had changed her clothes; there was cut

mark on her middle finger.

17. P.W.-5-Dr. Sangeeta Gupta, in her cross examination has

admitted that the victim in her statement has not told her that

Firoz has committed rape upon her.

18. It is recorded by P.W.-5-Dr. Sangeeta Gupta, in the statement

of the victim that she at 10 p.m. went to drink water from the tap

installed out side of her house; all of sudden, Firoz came from

behind and trapped her mouth and brought her in the vacant room

of his house and attempted to rape her; accused from his one hand

was searching something in the Almirah; she got the opportunity

and rescued herself and rushed back to her house.

19. In the aforesaid statement of the victim, said to have been

recorded by P.W.-5, Dr. Sangeeta Gupta, it is not noted that at the

time of alleged incident the accused was brandishing knife in his

hand. P.W.-5 Dr. Sangeeta Gupta, has also admitted in her cross

examination that with regard to alleged rape, victim did not tell

her that accused had committed rape upon her.

20. P.W.-5, Dr. Sangeeta Gupta has also deposed that no sign of

force being applied was found at the time of medical examination

of the victim, however, she has opined that in such a scenario the

sexual violence cannot be ruled out.

21. P.W.-2, victim, has stated in her examination in chief before

the learned trial Court that on 12.10.2006, at around 10-10:30

p.m. when she went to drink water at the water tap installed

outside of her house, Firoz appeared there; trapped her mouth and

forcefully brought her to his house and committed rape upon her.

She also admits that she had narrated the entire incident to her

parents, who went to the house of the accused/respondent but he

fled from there. She admits that she had also told to Daroga Ji

about the incident and also got her statement under Section 161

Cr.P.C. recorded. As such P.W.-2, victim, has supported the

averments in the First Information Report and also the testimony

of P.W.-1 Rajendra, P.W.-3 Smt. Nirmala and P.W.4 and P.W.-7

Bhole. However, in the same breath P.W.-2 victim, in her cross

examination, has stated that she has given her statement under the

pressure of her uncle Bhole, who is younger brother of her father;

Her uncle had also exerted pressure, not only upon her, but also

on her father. The aforestated statement has been given by her

under fear of her uncle; She had also given her statement under

Section 164 Cr.P.C. under the pressure of her uncle Bhole as she

had apprehension if she did not give that statement she would be

subjected to harassment.

22. It is evident from her deposition, that in her cross

examination, she has not supported the prosecution case. In her

examination in chief she has also admitted that the previous

statement under Section 164 Cr.P.C. was also given under duress.

23. Since statement of P.W.-2 victim has been recorded on oath

before the learned trial Court therefore, it has to be treated as

voluntarily one.

24. P.W.-2, victim, in her cross examination has also stated that

Firoz has not committed rape upon her; she also contradicts her

statements given under Section 164 Cr.P.C. by saying that accused

respondent had not trapped her mouth, nor he took her to the

room in his house; at the time of alleged incident she was 19

years of age and on the date of examination she was aged about

21 years.

25. P.W.-2, victim, has not stated in her examination in chief

that accused/respondent had made an attempt to rape her, nor in

this respect she has stated in her cross examination therefore, the

evidence of P.W.-5 Dr. Sangeeta Gupta, that the victim had told

her that Firoz had made an attempt to rape victim is not

corroborated by herself, nor in the First Information Report there

is averment that Firoz made an attempt to rape the victim.

26. P.W.-2 victim, has also deposed in her cross examination that

statement to Daroga Ji was also given by her, under the duress of

her uncle Bhole.

27. The statement of witness, under law is required to be read as

a whole. Incident is said to have occurred with the victim by

accused; first information report was not lodged by her at the

police station, nor, informant- P.W.-1, Rajendra, P.W.-3 Nirmala

and P.W.-7 Bhole, were present at the time of incident, whereas,

P.W.-7, Bhole in his examination in chief has stated that the

victim is her niece and on 12.10.2016, at around 10 p.m. he was

present at his house; he heard scream of her niece, who lives

nearby and on hearing her shout, he came out of his house and

saw her niece was weeping; on interrogation, she had narrated the

entire incident to him.

28. P.W.-2 victim, has not stated in her deposition that her uncle

Bhole had come on the scene of occurrence and she had narrated

the incident to him. Thus, statement of P.W.-7 Bhole, in this

connection is not corroborated by P.W.-2 victim.

29. P.W.-1, informant, P.W.-3 Smt. Nirmala, P.W.-7 Bhole, have

stated in their respective testimony that at the time of incident

accused/respondent Firoz was having knife, but victim has not

stated in her statement that accused/respondent Firoz, at the time

of alleged incident was wielding knife in his hand, thus, the

statements of P.W.-1 Rajendra, P.W.-3 Nirmala and P.W.-7, Bhole,

do not find support from the deposition of P.W.-2, victim, and

being uncorroborated it in not worthy of reliance.

30. Since, P.W.-2 victim has supported the prosecution case in

her examination in chief but has also candidly stated that her

previous statements under Sections 161 as well as 164 Cr.P.C. and

her examination in chief, were the result of pressure exerted by

her uncle Bhole upon her.

31. P.W.-2 victim, admitted in her deposition that she is literate

and she also discloses in her statement that at the time of alleged

incident she was aged about 19 years. In the First Information

Report the age of the victim is mentioned 17 years. P.W.-1

Rajendra, P.W.-3 Nirmala and P.W.-7 Bhole, has not mentioned

the age of the victim in their statements. There is no documentary

evidence on the record about the age of the victim. The evidence

of P.W.-2 victim with regard to her age, was 19 years, at the time

of alleged incident. Her deposition, has not been challenged,

therefore, it appears that her statement with regard to her age, at

the time of alleged incident is admitted to the prosecution.

32. P.W.-4 Dr. Isha Soni, had also carried out the medical

examination of the victim in connection with the instant case on

15.10.2016, during her posting at PHC Mahila Hospital, Meerut.

She states in her examination in chief that she had found victim's

hymen intact. She has also proved medical report as Exhibit-Ka-3.

It is also admitted to P.W.-4 Dr. Isha Soni that at the time of

medical examination of the victim, she well known that she was

doing medical examination of the victim second time.

33. In medical jurisprudence it is generally presumed that in case

of rape of a young woman her hymen is torned. In the instant

case P.W.-2 victim has stated that no rape was committed upon

her. She refuses that physical violence had been caused to her by

the accused. No mark of injury or violence was noted by the

Doctors during her medical examination.

34. P.W.4-Dr.Isha Soni, has also deposed in her cross

examination that victim was blowing hot and cold; on one hand

she was saying that rape was committed upon her but on the other

hand she was contradicting herself by saying that no rape was

committed upon her. Therefore, self contradictory statement of

victim was recorded to P.W.-4 Dr. Isha Soni, it appears that the

victim was under pressure of her uncle Bhole; victim's Hymen was

also found intact. It appears from above discussion that no rape

was committed by the accused/respondent upon the victim P.W.-2.

35. Finding returned by the trial Court in the impugned judgment

and order dated 06.05.2019, in para 32, is extracted below;

"प्रस्तुत प्रकरण में पी०डब्लू० 1 एवं पी०डब्लू० 3 तथा पी०डब्लू7 भोले के द्वारा घटना की

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उपरोक्त चारों साक्षी पी०डब्लू० 1 लगायत 3 एवं पी०डब्लू० 7 में से कोई भी साक्षी घटना

का चश्म*ी* साक्षी नहीं है और उनके द्वारा स्वयं को घटना की जानकारी पीड़ि$ता के

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जिजरह ड़ि*नांक 10.07.18 पृष्ठ सं० 2 एवं 3 पर स्पष्ट रूप से घटना से इन्कार करते हुए यह

कहा गया है ड़िक ड़िIरोज ने मेरे साथ कोई गलत काम ( बलात्कार ) नहीं ड़िकया। धारा 164

एव ं 161 *०ं प्र०सं० तथा न्यायालय में ड़ि*ये गये बयानों के बार े में यह कहा गया ह ै ड़िक उक्त

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काम नहीं ड़िकया। यह कहना गलत है ड़िक मुलजिजम ड़िIरोज मेरा मँहु *बाकर अपने कमर े मे ले

गया हो। ड़िIरोज ने कप$े उतारे और न मँहु में कप$ा ठूसा । जिजस समय यह मुक*मा

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पुलिलस वाले *रोगा सड़िहत थाने पर जो बयान हुआ था वह भी मैने चाचा भोले के *बाव में

ड़ि*या था। साक्षी सं० 4 डॉ० ईसा सोनी के द्वारा भी मेडिडकल परीक्षण ड़िकया गया है और

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परीक्षण डॉ० संगीता गुप्ता के द्वारा ड़ि*नांक 13.10.16 को ड़िकया गया था और उनके द्वारा

भी यह कहा गया है ड़िक शरीर पर कोई बहरी या अन्*रुनी चोट नहीं थी। वह कप$े ब*ल

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बार कह रही थी ड़िक उसके साथ बलात्कार हुआ है ड़िIर कह रही थी ड़िक नहीं हुआ। कहने

का तात्पयT है ड़िक ड़ि*नांक 12.10.16 को राड़ि/ 10 बजे घटना घड़िटत हुई है और ड़ि*नां

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*ोबारा मेडिडकल परीक्षण हुआ है, उसमें भी हाईमन इन्टैक्ट था। सामान्यतः यड़ि* ड़िकसी के

साथ शारीरिरक संसगT कारिरत ड़िकया जाता है तो हाईमन के Iटने की सम्भाव्यता अत्यडिधक

रहती है। प्रस्तुत प्रकरण में यड़ि* अभिभयुक्त ड़िIरोज द्वारा जबर*स्त पीड़ि$ता के साथ *ुष्कमT

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स्वयं ने भी न्यायालय में ड़ि*ये गये बयान में यह कहा है ड़िक मुलजिजम ड़िIरोज ने घटना की

डितभिथ व समय पर उसके साथ ड़िकसी प्रकार कोई गलत काम नहीं ड़िकया न ही मुंह में कप$ा

ठूँसा। अन्य साक्षीगण के द्वारा भी यह कहा गया है ड़िक उन्हें घटना के बारे में पीड़ि$ता ने

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ड़िकस प्रकार उन लोगों को घटना की जानकारी और सत्यता का ज्ञान हुआ, यह सं*ेहास्प्र*

प्रतीत होता है।"

36. The accused/respondent has stated in his statement under

Section 313 Cr.P.C. that prior to alleged incident dispute with

regard to payment was existing and thus he has been falsely

implicated in this case.

37. Since victim, P.W.-2 has herself admitted that pressure was

exerted by her uncle, to give evidence of alleged rape against the

accused/respondent, it lends credence to the above referred

statement of the accused.

38. In the backdrop of above analysis of evidence on record,

doubt is created regarding the authenticity of the prosecution case

against the accused/respondent. We find no worthy evidence on

record to prove the charges against the accused.

39. From the above discussion, it is concluded that the learned

trial Court has rightly appreciated the facts and circumstances of

the case, as well as the evidence on record hence we do not find

any illegality or material irregularity in the impugned judgment

and order and the same is sustainable in eyes of law as it does not

suffers from perversity.

40. Thus, leave to appeal is refused and in consequence the

appeal stands rejected.

41. Registry to return the record to the Court below along with

this order.

Order Date :- 21.10.2022

Deepak/

(Suneet Kumar, J.)

(Syed Waiz Mian, J.)