Allahabad High Court
Deepak vs State Of U.P. on 3 January, 2023
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 87
Case :- CRIMINAL APPEAL No. - 7695 of 2019
Appellant :- Deepak
Respondent :- State of U.P.
Counsel for Appellant :- Arun Kumar Sharma
Counsel for Respondent :- G.A.
Hon'ble Dinesh Kumar Singh,J.
Heard learned counsel for the accused-appellant and learned A.G.A. for the State and perused the record.
The present appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 30th November, 2019 passed by the Additional Sessions Judge/Special Judge, Mainpuri in Special Trial No. 65 of 2016 arising out of Crime No. 205 of 2016 under Sections 342, 364, 376 and 392 IPC, P.S. Bhongaon, District-Mainpuri whereby the accused-appellant has been convicted and sentenced for offence under Section 376 IPC for 10 years rigorous imprisonment with fine of Rs. 10,000/-, for offence under Section 364 IPC for 10 years rigorous imprisonment with fine of Rs. 10,000/-, for offence under Section 342 IPC one year simple imprisonment and for offence under Section 392 six years rigorous imprisonment with fine of Rs. 5,000/- with direction that all the sentences would run concurrently.
As per the prosecution story the prosecutrix/victim was a married lady having two children. She was working in a nursing-home and was living separately from her husband with her own parents. On 27th April, 2016 at around 5 p.m. she was going to Uttam Hospital at night to perform her duty at night. It is alleged that as soon as she reached to Bhogaon Parua Crossing, accused-applicant who is resident of her maternal village met her. The accused-appellant was in a white colour Scorpio vehicle. The accused-applicant dragged the prosecutrix in the car and ignition of the car was on. The accused-applicant and two other persons were sitting in the car. It is further said that the accused-applicant put some sedative on her nose and as a result thereafter she became unconscious. Further allegation against the accused-appellant is that the window pans of the car were closed. Though she raised alarm but her cries could not be heard outside. The accused-appellant put pistol on her head and threatened her that if she would raise any alarm, he would kill her. After the accused-appellant put some sedative on her nose, she became unconscious. In the night when she regained her consciousness, she found herself in a chamber which was locked. The accused-appellant established physical relation with her on 4th day from the date when she was abducted and when she objected and protested, the accused-appellant threatened her that he would finish her and her entire family. The accused-appellant ranged her mother and brother. He asked the victim to get money from her parents and family, however, she refused. The accused-appellant also ranged his father and abused him. When his father asked him to come back home and he told him that he had killed the victim. He told his father that if family of the victim would lodge any F.I.R., he would bring bombs from Jalaun and through in the house of the father of the victim. On 5th day at 6.30 the accused-appellant parked his car at Dadri Road Noida. He and his two friends, who were also present in the car. These two friends were the same persons who were sitting in the car when she was abducted. These three persons present in the car were having cold drinks. The victim's hands were tied up. When the accused-appellant and his friends were busy enjoying drink, at that time the victim opened the window of the car and saw that a few girls and some men were coming towards car. Looking these persons, she ran away from the car and narrated her story to the girls and men who were going on the road. On this, the accused-appellant and his friends went away in the car, however, accused-appellant had taken some gold jewelry of the victim. The girls who met the victim at Dadri Road gave 10 rupees each and made her to sit in a bus. She got down from the bus at Dadri Bus stand. As she was crying, people present there, took her to Kotwali Police Station in Dadri where she narrated entire facts and she was made to sit in a Kanpur Roadways and she got down at Bhogaon where her brother, father, her husband and mother met her. The prosecutrix supported the prosecution case in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. In her medical examination no internal injury was noticed, however, one small contusion on right hand shoulder of the prosecutrix-victim was noticed measuring 2 cm x 1.5 cm.
The prosecution to prove its case, examined the father of the victim who was the complainant as P.W.1, the victim as P.W.2, Dr. Pavitra Singh who examined the victim as P.W.3, Udaiveer Singh, I.O. as P.W 4, Constable Chandra Veer as P.W.5 and mother of the victim as P.W.6.
The learned trial court after considering the evidence and submissions had convicted the accused appellant and sentenced accordingly as mentioned above.
Except for recording the statement of the victim, her father and mother, no other statement of the independent witness was recorded by the Investigating Officer during the course of investigation. The victim's specific stand was that she reached to the Kotwali Police Station in Dadri but no statement of any police personal of Kotwali Police Station at Dadri was recorded. The I.O. had conducted a very floppy and lopsided investigation and submitted the charge-sheet.
The prosecution story as set out cast doubt regarding its veracity in absence of any independent witness having been examined by the prosecution to support its case. Neither the alleged car which was used for commission of offence was recovered nor the two friends of the accused appellant who were allegedly present in the car at the time when she could escape from the car were arrested and their where abouts could be known.
I find some substance in the submission of learned counsel for the accused-appellant that the prosecutrix was a consenting party and she went with the accused-appellant.
As per the statement of the prosecutrix herself, the accused-appellant called the brother and father of the victim on the fourth day. If she was not a consenting party, there was no occasion for the accused-appellant to call the victim's father and brother.
Considering the evidence on record as well as the fact that the prosecution has not proved the case by reasonable ground by bringing the relevant evidence on record, I am of the view that the impugned judgment and order passed by the learned trial court is unsustainable in the eyes of law and, therefore, it is set aside.
The appeal is allowed.
The accused-appellant, Deepak, who is in jail since 30th November, 2019 is directed to set free. However, the accused-appellant shall submit the personal bonds and two sureties which shall remain enforce for a period of six months.
.
[Dinesh Kumar Singh, J.]
Order Date :- 3.1.2023
Kumar Manish.
