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2020 DIGILAW 211 (ALL)

Udai Bhan Singh v. State of U. P.

2020-01-20

DINESH KUMAR SINGH

body2020
ORDER : Dinesh Kumar Singh, J. 1. This revision under Sections 397/401 CrPC has been filed against the judgment and order dated 31st January, 2007 passed by the Additional District and Sessions Judge, FTC-2nd, Court No. 11, Sultanpur in Sessions Trial No. 178 of 2005 State Vs. Shailendra Pratap Singh and another' under Sections 376, 504 and 506 IPC relating to Case Crime No. 02 of 2005 lodged at Police Station Lambhua, District Sultanpur whereby the learned Sessions Judge has acquitted the accused respondent no. 2, Shailendra Pratap Singh under Sections 376, 504 and 506 IPC and respondent no. 3, Ghanshyam under Section 506(2) IPC. 2. The complainant, revisionist herein, gave a complaint (Exhibit-2) on 14.12.2004 addressed to the Superintendent of Police, Sultanpur, alleging therein that accused Shailendra Pratap Singh in the month of May, 2004, when his 15 years old daughter, prosecutrix, was alone in the house, committed rape on her; after committing the offence, accused, Shailendra Pratap Singh threatened his daughter that if she would tell anybody, he would kill her; fearing danger to her life, the prosecutrix did not tell the incident happened with her to anybody; thereafter, accused, Shailendra Pratap Singh had made physical relation with the prosecutrix for several times; and every time, when accused, Shailendra Pratap Singh committed the offence, he threatened the prosecutrix that if she would reveal it to anybody, she and her parents would be killed. It was further alleged that accused, Ghanshyam Singh, who was friend of accused, Shailendra Pratap Singh, also threatened the prosecutrix that if she would divulge about the offence committed by accused, Shailendra Pratap Singh on her, she and her family members would be killed. The prosecutrix, because of the threats received from the accused, had been succumbing to lust of the accused, Shailendra Pratap Singh. The prosecutrix got pregnant, and when her stomach grew up, then she told about the offence committed to her by the accused. Before writing to the Superintendent of Police, Sultanpur, the complainant gave a written complaint at the police station, however, the local police did not take any action, and then he sent the complaint to the Superintendent of Police. When no action was taken, the complainant filed an application under Section 156 (3) CrPC. On direction by the learned Magistrate dated 28.01.2005, the FIR was registered at the police station Lambhua. 3. When no action was taken, the complainant filed an application under Section 156 (3) CrPC. On direction by the learned Magistrate dated 28.01.2005, the FIR was registered at the police station Lambhua. 3. After completing the investigation, the investigating officer submitted charge-sheet against accused, Shailendra Pratap Singh under Sections 376, 504 and 506 IPC. After taking cognizance, the case was committed to the Court of Session on 09.11.2005. Accused Ghanshyam Singh was summoned by the learned trial Court under Section 319 CrPC as an additional accused for committing the offence under Section 506 IPC. 4. The trial Court, vide order dated 13.06.2005, framed charges against accused, Shailendra Pratap Singh under Sections 376, 504 and 506 IPC and vide order dated 05.12.2005 framed charge against accused Ghanshyam Singh under Section 506 CrPC. 5. The accused denied charges and claimed for trial. 6. The prosecution, to prove its case, examined father of the prosecutrix as PW-1, the prosecutrix as PW-2, Dr. Tauheed as PW-3, Constable Ranvijay as PW-4, Constable Kamlesh Singh as PW-5, Sub-Inspector Abdul Rehman as PW-6 and Mr. Kesarinandan Singh as PW-7. 7. The accused, in their statements recorded under Section 313 CrPC, stated that the allegations were false, and they were falsely implicated because of enmity between the parties. However, the accused did not lead any evidence in their defence. 8. The prosecution, in support of its case, also produced documentary evidence, including the application given to the Superintendent of Police (Exhibit Ka-1), Chik FIR (Exhibit Ka-3), medical report (Exhibit Ka-8), X-ray (Exhibit Ka-4), application under Section 156 (3) CrPC (Exhibit Ka-3), site-map (Exhibit Ka-10) and the charge-sheet (Exhibit Ka-11). 9. PW-1, the complainant, in his evidence in the Court, reiterated the version of the FIR. He further stated that for the first time the incident happened in the year 2004. After six months, he took his daughter to the Doctor on complaint of stomach pain. The Doctor examined the prosecutrix and told that she was pregnant. His daughter told the family members and 4-6 other people of the village that Shailendra Pratap Singh had committed rape on her. He further said that the prosecutrix told about the incident to Mata Prasad, Kesarinandan, Anil Kumar etc. In his cross-examination, this witness said that accused Shailendra Pratap Singh, in front of some villagers, accepted that he had committed rape on the prosecutrix. He further said that the prosecutrix told about the incident to Mata Prasad, Kesarinandan, Anil Kumar etc. In his cross-examination, this witness said that accused Shailendra Pratap Singh, in front of some villagers, accepted that he had committed rape on the prosecutrix. Accused, Shailendra Pratap Singh also said that accused, Ghanshyam did not commit rape on his daughter, but threatened her. He also said that regarding Ghanshyam, the prosecutrix told about his role in front of 4-6 people of the village, including Kesarinandan, Anil Kumar, Mata Prasad etc. He also said that the prosecutrix studied upto Class-Vth. He further said that in his home, his wife, mother and prosecutrix were living. He also said that in the year 1991-92 between his brother's son Munna Singh and Shailendra Pratap Singh scuffle took place. However, no report was lodged. He also said that 2-3 months before the date of his statement in the Court, scuffle took place between his brother, brother's son and Shailendra Pratap Singh. He further said that accused, Shailendra Pratap Singh was living with his father, mother, wife and three children. He denied the suggestion that accused Shailendra Pratap did not commit rape on the prosecutrix. He also denied the suggestion that because of enmity, he was falsely implicating the accused Shailendra Pratap Singh for committing the rape on the prosecutrix and making her pregnant. He further stated that the prosecutrix was studying with daughter of accused, Ghanshyam Singh. He denied the suggestion that he had given false evidence against accused Ghanshyam Singh and that Ghanshyam had enmity with Kesarinandan, Anil, Munna etc. 10. PW-2, the prosecutrix, also stated that the incident was of the month of May, 2004. On the day, she was alone in her home. Parents had gone in relation. Accused, Shailendra Pratap Singh was her Pattidar (distant cousin). When she was alone, accused, Shailendra Pratap Singh entered her home. She did not remember the date. Accused, Shailendra Pratap Singh committed rape on her forcibly. When she protested, the accused threatened her of life. The accused showed country-made pistol. The accused further threatened that if she would tell her parents then he would kill her and her parents as well. She further said that thereafter, whenever her parents were absent, the accused would come and commit rape on her. When she protested, the accused threatened her of life. The accused showed country-made pistol. The accused further threatened that if she would tell her parents then he would kill her and her parents as well. She further said that thereafter, whenever her parents were absent, the accused would come and commit rape on her. 5-6 months, thereafter when she felt pain in her stomach, she told about the offence committed to her. She was crying, and was unable to tell. When his maternal uncle (Mausa) asked Shailendra Pratap then he said that someone else was also involved in committing the offence on the prosecutrix. Kesarinandan Singh called her and asked that who had committed rape on her. Then she told that except for accused, Shailendra Pratap Singh, no one had committed rape on her. She further said that on the date of giving statement before the Court, she was 16 years of age. Accused Ghanshyam Singh said that if she would tell anybody about the offence committed to her by Shailendra, they would kill her. She further said that accused also said that if she would divulge it to her parents, they would kill her parents as well. The accused also abused her in the name of mother and sister. A male child was born, who died after a month. She further said that her elder sister was about 20 years old and she was married at Raebareli, but she did not know what was the age difference between her and her elder sister. She said that she was Class-V pass, and she was in Class-VI when she left the study. She said that for the first time when accused Shailendra came to her house, it was night, but she did not know the time. There was no electricity in the house and even the lantern was not lighting. She said that they were poor persons. Her grand-mother, after taking dinner, had gone to orchard, mother had gone to her parents place (Nanihal). On that day, her father had also gone to her maternal place. Shailendra had showed her a country-made pistol in the light of torch. She said that she did not raise alarm. She further said that thereafter Shailendra started coming in interval of every 2-3 days and would commit rape on her. Her mother came after a month from her paternal home. Shailendra had showed her a country-made pistol in the light of torch. She said that she did not raise alarm. She further said that thereafter Shailendra started coming in interval of every 2-3 days and would commit rape on her. Her mother came after a month from her paternal home. She denied the suggestion that the accused did not commit any offence to her or that she had relation with other boy, and for that reason she got pregnant. She also denied the suggestion that she was giving a false statement against the accused to falsely implicate him because of enmity of her family members with the accused. 11. PW-3, Dr. Tauheed, who examined the prosecutrix on 05.02.2005, said that the prosecutrix was having pregnancy of 36 weeks on the date she was examined. According to radiological examination, and report of Chief Medical Officer, Sultanpur dated 16th March, 2005, the prosecutrix was 18 years of age. There was an injury above hymen, which was healed, and could have been caused because of sexual activity. At the time of examination, the prosecutrix was pregnant by 8 and a half months. In cross-examination, Doctor said that if a young girl is subjected to sexual intercourse, there would be bleeding for a day or two. Blood stains would be found on clothes. After a woman becomes pregnant, she would feel nausea and vomiting after 8-10 days. After expiry of a month, there would not be any menstruation. Three months thereafter, womb would be visible. Usually, nine months seven days, after the last menstruation, a child is born. 12. PW-6, was investigating officer. He stated that on 28.01.2005, he was posted as Station House Officer at Police Station Lambhua. He said that he did not find any evidence against Ghanshyam Singh. However, after considering the statements of the prosecution witnesses, he filed charge-sheet against accused, Shailendra Pratap Singh under Sections 376, 504 and 506 IPC. He said that the prosecutrix did not give statement to him that when accused Shailendra Pratap Singh committed rape for the first time, her parents were not present in the home. He further said that the prosecutrix did not say that when she refused, accused Shailendra threatened that he would kill her by showing country-made pistol. He said that the prosecutrix did not give statement to him that when accused Shailendra Pratap Singh committed rape for the first time, her parents were not present in the home. He further said that the prosecutrix did not say that when she refused, accused Shailendra threatened that he would kill her by showing country-made pistol. He further said that the prosecutrix was told by Ghanshyam Singh that since her conduct was not good, she should not keep company of his daughter. He further said that Kesarinandan Singh did not tell him that when he called Shailendra, and asked, and he accepted that he had committed the mistake, and asked for pardon. However, he said that Kesarinandan Singh told him that PW-1 had told that accused Shailendra had been committing rape on his minor daughter, and for that reason, she had become pregnant. 13. PW-7, Kesarinandan Singh said that on 06.12.2004 PW-1 told him and some person of the village had been committing rape on his minor daughter by threatening her. Shailendra Singh and the prosecutrix were called. The prosecutrix was crying, saying that in the month of May, when her grandmother was in the orchard and mother had gone in relation, at that time accused Shailendra Singh came inside the house, threatened her and committed rape on her. He further said that the prosecutrix specifically said that Shailendra said that if she would divulge to anybody, he would kill her. When Shailendra Singh was confronted, he accepted, and said that he had committed mistake and begged for pardon. He further said that the accused committed rape by threatening her. The prosecutrix did not say that she had become pregnant. When pain started in her stomach, she was examined by Doctor, on which she came to know that she got pregnant. 14. The trial Court did not believe the prosecution story for the reason that when the FIR was lodged, the prosecutrix was in her advance stage of pregnancy, and she was pregnant for 8 and a half months. The trial Court was of the view that it was impossible not to notice the change in the body of the prosecutrix by her mother and family members, when she was in her advance stage of pregnancy. The trial Court was of the view that it was impossible not to notice the change in the body of the prosecutrix by her mother and family members, when she was in her advance stage of pregnancy. The trial Court was also of the view that if the prosecutrix had been subjected to rape by the accused by giving threat, and out of fear, she did not reveal this fact to anybody then how her fear got vanished after she felt pain in stomach, when she was medically examined and it was detected that she was pregnant. The trial Court also noted the discrepancy in the statements of the prosecutrix and her father. The trial Court was also of the view that the conduct of the prosecutrix was not natural and, therefore, the trial Court was of the opinion that the prosecution failed to prove its case beyond reasonable doubt against Shailendra Pratap Singh under Sections 376, 504 and 506 IPC and, therefore, acquitted him. The trial Court also did not find any evidence against accused Ghanshyam Singh, and considering statement of investigating officer, PW-6, the trial Court was of the opinion that charge against him under Section 506(2) IPC was not proved. 15. Heard Mr. Raghvendra Kumar Singh-II, learned counsel representing the revisionist, Mr. Ashwani Kumar Singh, learned Additional Government Advocate as well as Mr. Paritosh Shukla, learned counsel representing private respondent, and perused the lower court record. 16. Learned counsel for the revisionist has submitted that the prosecutrix was minor. Even if she was a consenting party and accused Shailendra Pratap had established sexual relation with her, the consent would become immaterial. He has further submitted that the trial Court had discarded the testimony of the prosecutrix, which remained firm, cogent and unshaken. He has further submitted that if it is believed that the prosecutrix was major, her consent was obtained by putting her under threat and, therefore, the consent would be of no consequence. The prosecutrix was put to fear of death by the accused Shailendra Pratap Singh to commit rape on her. He has further submitted that the impugned judgment and order is against the law and is liable to be set-aside. 17. Mr. The prosecutrix was put to fear of death by the accused Shailendra Pratap Singh to commit rape on her. He has further submitted that the impugned judgment and order is against the law and is liable to be set-aside. 17. Mr. Ashwani Kumar Singh, learned Additional Government Advocate, representing the State, supported the argument of the revisionist, and said that the impugned judgment and order of the trial Court is erroneous, and it is liable to be set-aside. 18. Per contra, counsel for the respondent nos. 2 and 3 has submitted that the prostitution had failed to prove its case against the accused beyond reasonable doubt. He has further submitted that the trial Court examined the evidence in detail, and finding gapping holes in the prosecution story, had acquitted the accused for the offence under Sections 376, 504 and 506 IPC. The trial Court's judgment and order is neither illegal, nor against law, nor the view taken by the trial Court is impossible one and, therefore, this Court, while exercising the power under Sections 397/401 CrPC, should not interfere with the impugned judgment and order of acquittal. He has further submitted that this Court should not interfere with the impugned judgment and order of acquittal unless and until the view taken by the trial Court is perverse or against law or against the evidence on record. 19. I have considered the rival submissions carefully and perused the evidence. 20. In the medical examination of the prosecutrix, her age had been determined to be 18 years. Except for medical examination and evidence of father of the prosecutrix, no other evidence was led in respect of age of the prosecutrix. It is well established that there can be margin of error of plus/minus two years in the age medically determined. No other evidence was produced to show that the prosecutrix was minor at the time of alleged commission of the offence of rape by accused, Shailendra Singh. The prosecution did not produce the evidence of school admission etc to demonstrate that the prosecutrix was minor. As per the medical evidence, the prosecutrix should be treated to be a major and, therefore, the consent would be a relevant factor in the present case. 21. The prosecution did not produce the evidence of school admission etc to demonstrate that the prosecutrix was minor. As per the medical evidence, the prosecutrix should be treated to be a major and, therefore, the consent would be a relevant factor in the present case. 21. The trial Court did not believe the prosecution case that the prosecutrix was being raped by putting her under fear of death by the accused and for that reason, she did not divulge for 8 and a half months to anyone. When she was medically examined, and it was found that she was pregnant for 8 and a half months then only told the offence committed to her by accused Shailendra. It cannot be believed that the fear of threat to life would continue after her parents had arrived from her maternal place. She had parents and other relation in the village. If the prosecutrix was not a consenting party, she could have told about the incident to her mother when she arrived from her maternal home. Therefore, it does not appeal to reason that the prosecutrix would not divulge to anyone, and she would remain silent for 8 and a half months, when her pregnancy was detected. It is also unbelievable that neither the prosecutrix nor her parents would know about the advance stage of pregnancy of the prosecutrix for such a long time. Therefore, the trial Court's view that the prosecution was not able to prove that the prosecutrix was subjected to rape under fear of death appears to be correct. This Court, therefore, is of the view that the impugned judgment and order is not liable to be interfered with. 22. In view of the aforesaid discussions, I am of the view that no interference is required in the impugned judgment and order passed by the trial Court and, therefore, this revision fails, and is dismissed.