Allahabad High Court
State Of U.P. vs Kiran Bharti on 2 May, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:79067-DB
Court No. - 42
Case :- GOVERNMENT APPEAL No. - 59 of 2022
Appellant :- State of U.P.
Respondent :- Kiran Bharti
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
1. This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 02.11.2021, passed by the Additional Sessions Judge, Fast Track Court-I, Ghaziabad in Sessions Trial No.950 of 2018 (State of U.P. Vs. Kiran Bharti), arising out of Case Crime No. 316 of 2017, under Sections 376, 506 IPC, Police Station Kotwali, District Ghaziabad.
2. The victim in the present case is the informant, who is the resident of West Bengal and was residing at Badarpur. It is alleged that in 2014 she met the accused Vishwajeet when she was looking for a house. Accused Vishwajeet invited the victim to live with him at Lane No.2, Badarpur Extension. Between 5 to 12 September, 2014 accused Vishwajeet committed rape upon the victim. Allegations are also made of torture against Vishwajeet, who also threatened her not to disclose such facts to anyone. Accused Vishwajeet thereafter left the victim. In April, 2015 the victim met the accused Kiran Bharati on Facebook and offered proposal of marriage to her. It is alleged that the victim came to the house of accused at Arya Nagar, Ghaziabad and on 10.05.2015 she was subjected to sexual assault. Later on, the accused Kiran Bharati asked the victim to leave his house as his mother is not comfortable with the lady of Bengal. It is also alleged that she has changed almost twenty rooms and eight jobs but these accused are not letting her live freely. Ultimately, she has lodged the FIR against these two accused.
3. Initially, the FIR was registered at Police Station Badarpur, New Delhi as Case Crime No.69 of 2017 under Sections 376, 506 IPC but later on it was transferred to Police Station Kotwali, Ghaziabad, where it was re-numbered as Case Crime No.316 of 2017. Investigation proceeded. Statement of victim u/s 164 Cr.P.C. was recorded and she was also medically examined in which no internal or external injuries were found on her. After the investigation conducted in the matter, a chargesheet was submitted against the accused Kiran Bharati. Cognizance was taken in the matter whereafter the case was committed to the Court of Sessions where charges were framed against the accused. Since the accused denied the charges as such trial commenced.
4. The trial proceeded in which the victim has been produced as PW-1. In her deposition before the court, she has stated that after completing doctorate MBBS from Russia she was residing at Greenpark Delhi and joined a coaching. At that time the accused present in court had also taken admission. The accused contacted the victim on Facebook and proposed to marry her. In her deposition, she has supported the prosecution case.
5. PW-2 (Mohd. Suhail Ansari), who was working as doctor at Yasoda Hospital, has supported the prosecution case. PW-3 (Udaiveer) is the Investigating Officer, who has conducted investigation of the present case. PW-4 (Sarita Rathi) is the Investigating Officer, who has conducted investigation in respect of incident at Delhi. PW-5 (Dr. Sushma Bharati) has medically examined the victim and in her testimony she has stated that there are no internal or external injuries on the victim. PW-6 (Ankit Kumar) is the formal witness.
6. The trial court has referred to and relied upon the evidence on record to come to the conclusion that the victim was major. The victim in her testimony although has alleged that on the false promise of marriage she consented to relationship with accused Kiran Bharati and established physical relations from May, 2015 onwards but it is only in February, 2017 that FIR has been lodged. No reasons for the delay has been explained. There are no external or internal injuries on the victim. The victim has otherwise stated that she was subjected to rape by Harjinder, Vishwajeet and accused Kiran Bharati. The trial court has found that the victim kept changing her stand and was not consistent throughout. In her statement under section 164 Cr.P.C. the victim has alleged that rape was attempted at Russia by Harjinder but this incident is of 2009. She had multiple boyfriends at Russia and some of them came to Delhi. She has admitted that though various persons committed rape upon her but no report in that regard was lodged. The incident of rape by the accused Kiran Bharati is of the year 2015-16. She has also stated that after the accused was arrested and sent to jail she went twice or thrice in jail to meet him. A compromise was also arrived at and has been produced in evidence. The victim, however, has stated that she was misled into entering in a settlement. The trial court on the basis of evidence led during trial has come to the conclusion that the victim cannot be treated to a starling witness, inasmuch as his version has varied from time to time. The allegation that multiple persons committed rape upon her regarding which no report was lodged is viewed with suspicion. Considering the fact that the victim is major and is doctor by profession and for several years she continued to be in relationship with accused Kiran Bharati and other persons without raising any protest of any kind, the trial court has drawn an inference that the victim has consented to relationship with the accused and that no false promise of marriage is substantiated at the trial. With these conclusions the trial court has granted benefit of doubt to accused Kiran Bharati and has acquitted him.
7. We have been taken through the judgment by the learned AGA, who submits that the trial court has not appreciated the evidence in correct perspective and that the findings returned by the court below are perverse.
8. We have carefully examined the judgment of the court below and upon its examination we find that the view taken by the court below is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances we find that neither any triable issue is raised before us in this appeal nor any perversity is shown, which may persuade this Court to grant leave to assail the judgment of acquittal. Prayer made by the State for grant of leave is, accordingly, refused and the appeal, consequently, fails and is dismissed.
Order Date :- 2.5.2024
Ashok Kr.
