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2013 DIGILAW 168 (UTT)

BRIJ KISHORE JHA v. STATE OF UTTARAKHAND

2013-04-03

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) Present appellant, by way of present appeal, is assailing judgment and order dated 05.11.2011, passed by Sessions Judge, Udham Singh Nagar in Sessions Trial No. 157 of 2010 whereby learned trial court has found the appellant guilty for the offences punishable under Sections 363, 366 and 376 IPC and has sentenced him to serve rigorous imprisonment for a period of five years for an offence punishable under Section 363 IPC; to serve rigorous imprisonment for five years for an offence punishable under Section 366 IPC; and to serve rigorous imprisonment for a period of seven years for an offence punishable under Section 376 IPC with the stipulation that all the sentences shall run concurrently. 2. The brief facts of the present case, inter alia, are on 11.04.2010, PW1 father of the prosecutrix has lodged a report with the police stating therein that on the previous evening of 10.04.2010, he had gone for labour work while her wife had gone to vegetable market; appellant in their absence had kidnapped their minor girl Anita aged about 12 years by inducement; search was made for Anita but in vain; since the informant was having suspicion on the appellant, therefore, informant had phoned the appellant on his mobile number 9997082652; the phone was picked by the appellant and he had told him that he was at Gaziabad and Anita was with him and he was going to Delhi; appellant had also given phone to Anita, who spoke on phone to her mother; when informant tried to make contact with appellant on the residential phone, the same was reported to be switched off, therefore, police should help him to trace his daughter. 3. Having investigated the matter, police submitted a charge-sheet against appellant for the offences punishable under Sections 363, 366 and 376 IPC. After the committal of the case, learned trial court has framed charges against the appellant, who denied all the charges and claimed trial. 4. From the side of prosecution, prosecutrix PW1, her father, complainant PW2, her mother PW3, last seen evidence PW4, SI S.N. Tiwari PW5, Dr. Parul Goyal PW6, SI Lalit Mohan Joshi PW7, Head Constable Pooran Singh were examined. Having perused the entire material made available before the learned trial court, the trial court has passed judgment and order impugned in the present appeal. 5. I have heard Mr. Parul Goyal PW6, SI Lalit Mohan Joshi PW7, Head Constable Pooran Singh were examined. Having perused the entire material made available before the learned trial court, the trial court has passed judgment and order impugned in the present appeal. 5. I have heard Mr. Devesh Upreti, learned counsel for the appellant and Mr. Raman Kumar Sah, Mr. Vipul Painuli, AGAs with Mr. Hari Om Bhakuni, Brief Holder for the State and have carefully perused the record. 6. As per the statements of PW1 prosecutrix, her father (PW2) and her mother (PW3), appellant was a tenant in the house of PW2. As per the statement of the appellant recorded under Section 313 Cr.P.C. PW2 has borrowed Rs. 30,000/- from the appellant, however, when appellant demanded back the borrowed amount, he has falsely implicated the appellant in the present case. 7. As per the statement of prosecutrix PW1, on 10.04.2010, appellant made request to her to drop him at bus station of Rudrapur; prosecutrix went with the appellant to the bus station; however, there appellant had requested her to drop him at Rudrapur Railway Station; consequently, prosecutrix went to the railway station along with the appellant; there appellant gave something to eat to the prosecutrix; thereafter she became unconscious and could gain consciousness only after reaching Raxaul, Nepal; from the Raxaul station appellant took her by the pedal rickshaw in the house of his aunt (mami) where appellant raped her thrice and thereafter, after leaving her in the house of mami came back to Rudrapur; PW2 father of the prosecutrix came to Nepal to bring the prosecutrix back and brought her back; she went to the court on 31.05.2010 by her own for recording of her statement under Section 164 Cr.P.C. Prosecutrix PW1 in her statement recorded under Section 164 Cr.P.C. on 31.05.2010 has stated that her father PW2 had brought her back from Nepal to Rudrapur. Neither she nor her father PW2 has stated that PW2 has handed over prosecutrix PW1 to the Investigating Officer (PW5) after coming from Nepal. On the other hand, PW5 SI S.N. Tiwari has stated in so many words that he has recovered the prosecutrix from the house of Rampreet Bhagat situated at Mohalla Jagatpura, Rudrapur. 8. Neither she nor her father PW2 has stated that PW2 has handed over prosecutrix PW1 to the Investigating Officer (PW5) after coming from Nepal. On the other hand, PW5 SI S.N. Tiwari has stated in so many words that he has recovered the prosecutrix from the house of Rampreet Bhagat situated at Mohalla Jagatpura, Rudrapur. 8. In view of the contradictory statement of PW1 and PW2 at one hand and Investigating Officer PW5 on the other, it would be difficult to believe the statement of PW1 and PW2 to the effect that prosecutrix PW1 was recovered from the house of mami of the appellant in Nepal. There is no evidence, on record, to prove that appellant had taken the prosecutrix to Nepal and had confined her in the house of his mami as stated by PW1. In my firm opinion, statement of PW1 that she was taken to the Nepal and was kept in the house of appellant’s mami does not inspire confidence for want of corroboration. 9. Not only this, PW6 Dr. Parul Goyal, who had examined the prosecutrix on 31.05.2010, has stated that prosecutrix was habitual of having sexual intercourse and no mark of internal or external injury was found on the person of the prosecutrix, therefore, no definite opinion about rape could be given. 10. In the firm opinion of this Court, statement of prosecutrix that she was raped in Nepal also does not find corroboration with the statement of PW6 Dr. Parul Goyal. Moreover, appellant was arrested from Rudrapur and as per statement of PW2 appellant, while was in custody, had told PW2 as well as to the police that prosecutrix was in Nepal and after receiving the said information from the appellant, PW2 alone went to Nepal to bring the prosecutrix back. PW2 has never informed the Nepal police about illegal confinement of prosecutrix in the house of appellant’s mami and for her recovery. It is unbelievable that without recording such confession of the appellant police would have asked the PW2 to go alone to Nepal in order to recover the prosecutrix. 11. PW2 has never informed the Nepal police about illegal confinement of prosecutrix in the house of appellant’s mami and for her recovery. It is unbelievable that without recording such confession of the appellant police would have asked the PW2 to go alone to Nepal in order to recover the prosecutrix. 11. In view of the fact that appellant was staying in the same house as a tenant and in view of the specific statement of the appellant recorded under Section 313 of the Code that when he asked PW2 for refund of ‘30,000/-, he has falsely implicated him, reasonable doubt has been created on the prosecution story. Considering the totality of the facts and circumstances of the case, in my firm opinion, I find that prosecution has failed to prove its story beyond reasonable doubt, therefore, conviction of the appellant seems to be totally unjustified only on the sole statement of prosecutrix PW1 especially when her recovery from Nepal itself is doubtful. Therefore, appeal is allowed. Judgment and order under appeal is set aside. Appellant stands acquitted. Let the appellant be released forthwith, if not wanted in any other case. 12. Let a copy of this judgment be sent back to the lower court for compliance of this order along with lower court record.