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2012 DIGILAW 765 (ALL)

State of U. P. v. Mithun Kumar Prajapati

2012-03-29

ANIL KUMAR AGARWAL, DEVENDRA PRATAP SINGH

body2012
Devendra Pratap Singh & Anil Kumar Agarwal, JJ.;- Heard learned A.G.A. for the State. This application has been filed by the State of U.P. with the prayer that leave to appeal may be granted against the judgment and order dated 26.9.2011 passed by Sri Avnish Kumar Dwivedi, Additional District and Sessions Judge (Ex-Cadre), Jhansi, in Sessions Trial No. 399 of 2010, Case Crime No. 376 of 2010, whereby the respondent has been acquitted for the offence punishable under sections 363, 366(Ka) and 376 I.P.C. We have perused the judgment of trial court and lower court's record. The prosecution story in brief is that on 16.8.2010 the complainant Prakash had lodged a report in P.S. Samthar, District Jhansi, stating therein that on 7.8.2010 at about 11.00 a.m. his minor daughter Km. Archana, aged about 14 years had gone for marketing to Samthar Bazar by Bus No.CIG-7244 of Sharma Bus Service, but one Pratap Bhan after enticing away his daughter sent her with someone else. The complainant searched his daughter at various places, but could not find her anywhere. His daughter had taken one gold tops, one silver payal and and Rs.500/- in cash with her. He apprehended that the aforesaid person with some one else has enticed away his daughter. On the basis of that report initially Police had registered a case crime no. 376 of 2010, under sections 363, 366 IPC against Pratap Bhan. During investigation, the complainant further informed that his daughter and Mithun Kumar Prajapati were seen by witness Khem Raj going towards Agga Bazar. On secret information police recovered Km. Archana from the possession of Mithun Kumar Prajapati on 22.9.2010 from waiting room of Shiv Mandir at Pachovai Crossing. After completing investigation, police submitted charge sheet against the accused Mithun Kumar Prajapati under sections 363, 366 & 376 IPC. The trial court acquitted the accused respondent on the ground that as per medical report, the victim was 19 years old at the time of incident and her conduct shows that she had not been taken away forcibly, because she did not make noise at any place, while she travelled to different places with the accused. She left her parents house with her own free will and made illicit relations with accused without applying any force, hence she is a consenting party and prosecution has failed to prove his case beyond the shadow of doubt. She left her parents house with her own free will and made illicit relations with accused without applying any force, hence she is a consenting party and prosecution has failed to prove his case beyond the shadow of doubt. The trial court further observed that father of victim PW-1 Prakash deposed that his daughter's age was 16 years and she was 5th class pass. A school leaving certificate (Ext.18A) had been filed by the prosecution, in which date of birth of Km. Archana was mentioned as 18.6.1994. The trial court disbelieved the aforesaid document (Ext.18A) in view of the apex court ruling reported in AIR 2006 SC 1746 ; State Vs. Lekhram holding that the entries of school register is not conclusive unless the person who had entered the same does not give evidence that he had disclosed such date of birth. There is no evidence to this effect. Further, Ext.18A shows that the victim had taken education upto class 8th, which is contrary to the statement of PW-1. The trial court relied upon medical report, which revealed that she was 19 years old. The trial court further observed that the victim had stated that on 24.7.2010 she along with her family members had gone to worship goddess Annpurna Devi in accused's bus and developed intimacy with him. The accused had given a mobile to her and she used to talk to him. On 7.8.2010 the accused respondent called her at Samthar and she went there on false pretext of taking medicine. The accused Mithun Kumar Prajapati met her at the Bus Stand of Piperi. The accused respondent gave her allurement of visiting various places, then she and Mithun Kumar Prajapati went to Agga Bazar and, thereafter, both had gone to various places, namely, Moth, Jhansi, Datia, Delhi and and after a month they returned to the village. When they tried to go again to Delhi, the Police arrested both the persons. She further testified that at Ghaziabad accused Mithun Kumar Prajapati had committed sexual intercourse against her wishes. She further admitted that she did not complain to anybody about the illegal act of accused nor raised any alarm. In her statement recorded under section 164 Cr.PC. she stated that Mithun Kumar Prajapati was good to her, so she went away with him and developed illicit relation with accused with her own free will and without compulsion or force. She further admitted that she did not complain to anybody about the illegal act of accused nor raised any alarm. In her statement recorded under section 164 Cr.PC. she stated that Mithun Kumar Prajapati was good to her, so she went away with him and developed illicit relation with accused with her own free will and without compulsion or force. Although, she resiled from the statement of 164 Cr.P.C., but admitted that she had not made any complaint to anybody or made noise in the bus or train, while several opportunities were present, which shows her conduct that she was a consenting party and had left her parents home with her own free will, hence the accused was entitled to be acquitted in this case. The learned AGA on the other hand argued that the victim Km. Archana was minor at the time of incident and a school leaving certificate Ext.18A has been filed in support of prosecution case, which is duly proved, but the lower court had wrongly disbelieved the said document. He further argued that the accused had given allurement to visit various places for wandering and committed rape inGhaziabad against her wishes. The evidence of PW-2 is reliable and convincing. The prosecution has fully proved its case and the court below has committed gross illegality in acquitting the accused respondent. From the perusal of record, it appears that in present case, the trial court correctly disbelieved the school leaving certificate and relied upon the medical report for determination of age of victim at the time of alleged incident. The trial court had correctly held that she did not complained to anybody or raised any alarm in bus or train or where she lived with the accused. In her statement recorded under section 164 Cr.P.C. she herself stated that she had gone to accused with her own free will and developed illicit relations with him without any compulsion. In her statement, she also stated that she did not go anywhere else after reaching Delhi, which creates doubt about going to Ghaziabad. Therefore, in our opinion the view taken by the learned Sessions Judge is based upon proper appreciation of evidence on record. The findings recorded by the Trial Judge do not require any reconsideration. There is no illegality or perversity in the impugned order. Accordingly, leave to appeal is refused and the application is rejected.