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2019 DIGILAW 28 (ALL)

State Of U. P. v. Bishmillaha

2019-01-03

DINESH KUMAR SINGH I, RAMESH SINHA

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JUDGMENT : 1. Heard Sri Ashutosh Kumar Pandey, learned A.G.A. appearing for the State and perused the lower court record. 2. 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 31.07.2006 passed by Additional Sessions Judge (Fast Track Court No.2), Maharajganj in Sessions Trial No.40 of 2004 arising out of Case Crime No.79 of 2001 whereby the accused-respondents namely Bismillah and Jafar Ali have been acquitted for the offence punishable under sections 376/323/506/313 I.P.C. P.S. Kotwali, District Maharajganj. 3. It has been argued by the learned A.G.A. for the State that the trial court has not properly appreciated the evidence and has delivered the judgment on the basis of conjectures and surmises. Further, it is argued simply on the basis of some delay in lodging the FIR, the trial court was not justified in giving benefit of doubt to the accused-respondents. The prosecution has fully proved its case beyond reasonable doubt. The impugned judgment is wholly illegal, perverse and against the weight of evidence on record, therefore, liable to be set aside and the State may be granted leave to file appeal. 4. The facts of the case are that the informant Tarun-Nisha wife of Hausil, resident of Gram Barwan Vidyapati (Tola), P.S. Kotwali, District Maharajganj had a daughter aged about 12 to 13 years who was enticed away by the respondent no. 1 Bismillah son of Iddi and his son-in-law Jafar Ali son of Abdul Hasan, respondent no. 2 and the respondent no. 2 continued to sexually exploit her, as a result she became pregnant. The informant could know about it only five months after her daughter became pregnant. Thereafter, the respondent no. 2 had threatened to the life of the informant and her daughter and under the said threat, he continued to sexually exploit her. Thereafter, Panchayat was held in the village which imposed punishment upon the respondent no.2, feeling aggrieved by which, the respondent nos. 1 and 2 had beaten up the informant, in respect to which she lodged an FIR at P.S. concerned. Thereafter, to suppress the said incident, the respondent no. 1 Bismillah and Ganesh Pandit who was resident of Shikarpur had taken the informant and her daughter to Maharajganj for abortion of pregnancy. 1 and 2 had beaten up the informant, in respect to which she lodged an FIR at P.S. concerned. Thereafter, to suppress the said incident, the respondent no. 1 Bismillah and Ganesh Pandit who was resident of Shikarpur had taken the informant and her daughter to Maharajganj for abortion of pregnancy. Even after that, the informant and his family members were continuously being harassed and were being threatened due to which informant and his entire family was extremely under fear. She had given an application in this regard to the S.P. Maharajganj and requested him to take necessary action in this matter. 5. On an application given by the informant (Exhibit Ka1) to S.P. Maharajganj, SHO Kotwali got the matter enquired into and thereafter a case was registered against both the respondents on 17.02.2001 at 18.10 hours being case crime no. 79 of 2001 under section 376, 506, 323, 313 IPC, chick FIR (Exhibit Ka-6) and its entry was made in G.D. at report no. 32 on the same day at 18.10 hours (Exhibit Ka-7). 6. Medical examination of the victim was conducted on 20.02.2001 at 12.30 hours at CHC, Maharajganj by Dr. Smt. Poonam Singh who prepared medical examination report (Exhibit Ka-2) and on the same day on the basis of report of radiologist, the said doctor expressed opinion about the age of the victim being 18-19 years approximately (Exhibit Ka-3). X Ray report is Exhibit Ka-4, X Ray plate is material Exhibit 1. 7. The Investigating Officer Shiv Murti Singh took over the investigation of this case and thereafter Lalta Prasad Mishra and Jai Narain also conducted the investigation in this case. After investigation, charge-sheet was submitted against the respondents under section 376, 323, 506, 313 IPC which is Exhibit Ka-5. 8. The trial court framed charges against the respondent no. 1 under section 323, 506 and 313 IPC and against the respondent no. 2 under section 376, 323, 506 and 313 IPC to which the respondents pleaded not guilty and claimed to be tried. 9. From the side of the prosecution, to prove its case, Ram Kanwal as PW-2, Islam as PW3, Hausla father of the victim as PW4, informant Tarun-Nisha as PW5, Victim as PW 6, Dr. Poonam Singh as PW7, Dr. 2 under section 376, 323, 506 and 313 IPC to which the respondents pleaded not guilty and claimed to be tried. 9. From the side of the prosecution, to prove its case, Ram Kanwal as PW-2, Islam as PW3, Hausla father of the victim as PW4, informant Tarun-Nisha as PW5, Victim as PW 6, Dr. Poonam Singh as PW7, Dr. G.N. Prasad, Radiologist as PW8, I.O. Jai Narain Rai as PW9, Lalta Prasad Mishra as PW10, Shiv Murti Singh as PW11, Constable Dinesh Kumar as PW12, were examined. 10. By way of documentary evidence from the side of the prosecution, written report Exhibit Ka-1, medical examination report of victim as Exhibit Ka-2, medical report in respect of age of the victim as Exhibit Ka-3, X Ray report as Exhibit Ka-4, X Ray plate material Exhibit-1, chick FIR as Exhibit Ka-6, G.D. as Exhibit Ka-7, Charge-sheet as Exhibit Ka-5, were presented. 11. After having evaluated the entire evidence and heard the argument of both sides, learned trial court has acquitted the accused-respondents. 12. We have to see as to whether the learned trial court has correctly made the assessment of the statement of witnesses which have been produced from the prosecution side or there is any requirement of making any interference in the impugned judgment. 13. The first point which has been considered by the trial court relates to delay in filing the FIR which was argued before it from the side of the defence stating that due to exceptional delay of five months in lodging FIR after much deliberation and the same has no legal sanctity and no justifiable explanation of the said delay has been given from the side of the prosecution. Learned trial court has recorded in the judgment that from perusal of the FIR it is apparent that the same was moved before S.P. Maharajganj on 15.2.2001 with the allegation that the respondent no. 1 and his son-in-law Jafar Ali, respondent no. 2 had enticed away the daughter of the first informant few days ago and sexually exploited her as a result of which she became pregnant and knowledge about this could be to the informant only after five months of the pregnancy. 1 and his son-in-law Jafar Ali, respondent no. 2 had enticed away the daughter of the first informant few days ago and sexually exploited her as a result of which she became pregnant and knowledge about this could be to the informant only after five months of the pregnancy. Finding given on this point is that the said version in the FIR seems to be unbelievable that the accused-respondent no.2 was indulging in sexual activity with the victim and the informant could come to know about the same after such a long gap of five months. If the victim was being raped forcibly and was being sexually exploited by the respondent no. 2, she could tell about the same to her parents immediately. It is also mentioned in the judgment that PW4, father of the victim has stated that he came to know about this only when his daughter told him but in cross-examination he had specifically stated that after 2-3 days of incident, Panchayat was held in the village soon after he came from Gorakhur, where he was working and he had told about this fact to the Investigation Officer also and further stated that his daughter was raped, was being told by him only on the basis of what was narrated by her to him as he was not an eye witness. Learned trial court has concluded that it is evident from the above evidence that 2-3 days after the incident, a Panchayat was held, therefore, the father as well as mother of the victim were having full knowledge about her daughter having suffered, even then they took five months time to lodge the FIR which reduces the merit of the said FIR to naught. We do not find any infirmity in conclusion drawn by the trial court in respect of the delay in FIR. 14. Next point has been considered by the trial court which relates to the age of the victim. In the FIR it has been alleged that the victim was 12-13 years of age while before the trial court, she was stated to be above 16 years from the side of the defence in the cross-examination; as per medical examination report her age was found to be above 18 years on the basis of ossification test. In the FIR it has been alleged that the victim was 12-13 years of age while before the trial court, she was stated to be above 16 years from the side of the defence in the cross-examination; as per medical examination report her age was found to be above 18 years on the basis of ossification test. A meticulous analysis of the evidence with respect to her age has been made by the trial court in its judgment. Moreover, no injury on private part of the victim has been found in the medical examination report. Learned trial court has held that simply on the basis of the victim's statement without any corroborative piece of evidence it does not appear to be justified in the present case to hold the accused guilty. The analysis of the evidence relating to the victim and informant having been beaten by the accused side is also made in the said judgment and it is held that no injury memo has been presented showing any injury to have been caused either to the victim or to the first informant. Three witnesses PW1 to PW3 have turned hostile in this case. Therefore, the only evidence which remained in favour of the prosecution was that of PW4, PW5 and that of the victim herself. The statement of PW6 (victim) has also been considered regarding which it is recorded in her statement she had stated that the accused had entered in her house and had beaten them regarding which application was given at police station, the trial court held that due to non-receipt of any injury, offence under section 323 IPC was not found to be made out. 15. Learned trial court has also considered the offence under section 506 IPC and it is recorded that as per written report Exhibit Ka-1 containing the fact that the informant had come to know about the victim being raped only when the victim became pregnant of five months and thereafter she made a complaint against the accused respondents which shows that no threat to life was given by the accused-respondent and hence offence under section 506 IPC was also not found to be made out by the trial court. We do not see any reason to defer from the said opinion expressed by the trial court. 16. We do not see any reason to defer from the said opinion expressed by the trial court. 16. As regards the offence under section 313 IPC, learned trial court has considered the evidence on record and has recorded that as per prosecution version when the victim had become pregnant of five months, to conceal the said occurrence, the respondent no. 1 Bismillah and one Ganesh Pandit had taken the victim to Maharajganj for getting the pregnancy aborted but PW4 has stated in examination-in-chief that his daughter was pregnant for two months and in cross-examination he stated that his daughter became pregnant regarding which Panchayat had imposed fine upon the accused-respondent no.2. He further clarified that his daughter was not pregnant. If Investigating Officer has recorded that he had stated that his daughter became pregnant and he and his wife got her pregnancy aborted, then it is wrong. Learned trial court has concluded by the statement of PW4 that it was evident from the above statement that the daughter of the PW4 was not pregnant because no proof of her pregnancy nor of abortion has been given. The statement of mother of the victim was also considered, who stated as PW5 in cross examination that it was wrong that her daughter had become pregnant and in case it was mentioned in the written report that her daughter became pregnant of five months then only she could know about this incident, the same was wrong and she further stated that if in the said report it was written that Bismillah and Ganesh Pandit had taken her daughter to Maharajganj for the purposes of abortion, the same was wrong. Therefore, the trial court had concluded from the said statement that there was no sufficient evidence on record to prove the offence under section 313 IPC as well, against the accused respondents. The trial court had concluded that she (victim) was not taken any where for abortion. Therefore, the trial court had concluded from the said statement that there was no sufficient evidence on record to prove the offence under section 313 IPC as well, against the accused respondents. The trial court had concluded that she (victim) was not taken any where for abortion. PW6 (victim) also in this regard was examined and the trial court has recorded in the judgment that the statement of victim (PW6) was recorded in which she stated that she was never pregnant and if the Investigating Officer had written in her statement that she was again and again raped by which she became pregnant, the same was wrong and further she stated that if it was written that accused Bismillah and Ganesh Pandit had taken her for abortion, the same was wrong. 17. As regards offence under section 376 IPC, the learned trial court has mentioned in the judgment that there are number of discrepancies in the statement of victim and her parents and on account of delay in lodging the FIR, the version of the prosecution that the victim was repeatedly raped by the respondent no. 2 does not appear to be correct and the same was also not borne out from the medical report and consequently the trial court has acquitted the accused-respondent from the charges. 18. We are fully in agreement with the conclusion drawn by the trial court on the basis of evidence which has been presented before it from the side of the prosecution. We do not find any infirmity in the said impugned judgment. It is absolutely in accordance with law and does not appear to be perverse. The view taken by the trial court is possible view and simply because some other view could also be taken on the same piece of evidence, does not mean that the said view should be taken particularly when the accused-respondents have been acquitted. 19. We rely on law laid-down in Arulvelu and another vs. State, (2009) 10 SCC 206 , in which it is clearly held that appellate court should be very slow in setting aside the judgment of acquittal where two views are possible. The Trial Court's judgment cannot be set aside because appellate court's view is more probable. It should not set aside trial court's judgment unless it is either perverse or wholly unsustainable in law. 20. The Trial Court's judgment cannot be set aside because appellate court's view is more probable. It should not set aside trial court's judgment unless it is either perverse or wholly unsustainable in law. 20. 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 interference. There is no illegality or perversity in the impugned order. 21. Accordingly, leave to appeal is refused and the application is rejected. 22. Since leave to appeal has been refused, the appeal is also dismissed.