Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 1392 (ALL)

Anil Kumar Bind v. State Of U. P.

2021-11-24

AJAI TYAGI, K.J.THAKER

body2021
JUDGMENT : Ajai Tyagi, J. 1. By way of this appeal, the appellant-Anil Kumar Bind has challenged the Judgment and order 30.08.2018 passed by Additional Sessions Judge (Court No.12), Allahabad, in Special Session Trial No.56 of 2016 (State Vs. Anil Kumar Bind) arising out of Case Crime No.119 of 2016 under Section 376 Indian Penal Code and Section 3(2)(V) SC/ST Act and Section 3/4 POCSO Act, Police Station-Handia, District-Allahabad whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for 10 years with fine of Rs.10,000/-and in case of default of payment of fine, to undergo further imprisonment for one year and for life imprisonment and fine of Rs.10,000/-under Section 3(2)(V) SC/ST Act and in case of default of payment of fine, to undergo further imprisonment for one year. Appellant was acquitted under Section 3/4 POCSO Act. 2. The brief facts of the case are that complainant Chote Lal Pasi submitted written report Ex.Ka-1 to the Police Station-Handia, District-Allahabad on 24.03.2016 stating that his daughter prosecutrix, age 15 years, went to ease herself at about 10:00 pm in the night near the pond. From there Anil of his village took her daughter forcible by sequeezing her mouth to nearby hut and committed rape with her. On hearing the noise of crying, his son Hausila Prasad and other people ran towards the place of occurrence and his son caught Anil Bind red handed but he fled away from the spot. On the basis of this report an FIR was registered on Case Crime No.119 of 2016. 3. Ravi Shankar Prasad C.O. took up the investigation, I.O. visited the spot and prepared site-plan, recorded the statements of witnesses under Section 161 Cr.P.C. Prosecutrix was medically examined. Her statement under Section 164 Cr.P.C. was recorded by competent authority. After completing the evidence I.O. submitted charge sheet against the appellant. The case being exclusively triable by court of sessions was committed to the sessions court by competent magistrate for trial. 4. So as to bring home the charge, prosecution produced following witnesses, namely : 1 Chote Lal Pasi P.W.1 2. Nanki Devi P.W.2 3. Prosecutrix P.W.3 4. Hausila Prasad P.W. 4 5. Jai Hind Yadav P.W. 5 6. Dr. Neelu Mishra P.W.6 7. Ravi Shankar Prasad P.W.7 5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused did not examine any witness in defence. 6. Nanki Devi P.W.2 3. Prosecutrix P.W.3 4. Hausila Prasad P.W. 4 5. Jai Hind Yadav P.W. 5 6. Dr. Neelu Mishra P.W.6 7. Ravi Shankar Prasad P.W.7 5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused did not examine any witness in defence. 6. Apart from oral evidence, following documentary evidence was produced by the prosecution and proved by leading evidence: 1. Written Report Ex.ka1 2. FIR Ex.ka4 3. Statement u/s 164 Cr.P.C. Ex.ka2 4. Medico Legal Examination Report Ex.ka5 5. Supplementary Report Ex.ka6 6. Charge-Sheet Ex.ka9 7. Pathology Report - 8. Report of Radiologist - 7. Heard Shri M. A. Siddiqui, learned counsel for the appellant, learned AGA for the State and also perused the record. 8. Learned counsel for the appellant submitted that appellant has been fasely implicated in this case. There is no evidence of rape. It is further submitted that as per prosecution case, prosecutrix was of age of 15 years at the time of occurrence, but when she was medically examined by radiologist, her age was found between 18 and 22 years. It clearly shows that at the time of alleged incident prosecutrix was major. 9. It is next submitted by the learned counsel for the appellant that as per medical examination report of prosecutrix, no evidence of rape was found. Doctor, who medically examined the prosecutrix, has opined that at the time of examination it was not found that any intercourse has been committed with the prosecutrix. In chemical examination report no spermatozoa was found. There were no injury marks on her private part. 10. Learned counsel for the appellant also submitted that prosecutrix is examined as PW3. She has stated in her statement that her father was having enmity with the appellant. Moreover, she has not supported the prosecution version in her cross-examination. Her statement is having so much contradictions that it cannot be relied on. Her statement is exaggerated. 11. Learned AGA submitted that prosecutrix has supported the prosecution version in her statement under Section 164 Cr.P.C. as well as deposition made before learned trial court. It is also submitted that in medical examination Hymen was found torn. Learned trial court has rightly convicted and sentenced the appellant and it was also submitted by learned AGA that prosecutrix belongs to Scheduled Caste. Hence, he was rightly convicted under Section 3(2)(V) SC/ST Act also. 12. It is also submitted that in medical examination Hymen was found torn. Learned trial court has rightly convicted and sentenced the appellant and it was also submitted by learned AGA that prosecutrix belongs to Scheduled Caste. Hence, he was rightly convicted under Section 3(2)(V) SC/ST Act also. 12. At the very outset, it is pertinent in this case, to consider the age of prosecutrix at the time of alleged occurrence. In first information report, the father of the prosecutrix has mentioned her age 15 years but to determine the real age, ossification test was conducted by the radiologist and as per supplementary report prepared by him, her age was found above 18 years and below 22 years. As per supplementary report Ex.Ka6, this fact is established that at the time of alleged incident, prosecutrix was not minor but she was major. 13. We have examined the evidence of prosecutrix produced before learned trial court as PW3. This evidence seems to be exaggerated. In her examination-in-chief she has included two more persons with appellant which were not in the picture before her statement. It is also stated in her cross-examination that she went to ease herself with her mother. But mother was left behind and she reached to the pond by running and when she did not return to the house then her mother raised the alarm. It is further submitted by the prosecutrix that she was forcibly taken away from the pond to the hut by three persons out of which two were hiding their face by cloth. She has also stated that when she was being taken away, she did not raise alarm because she fainted. After that she became conscious and when rape was committed she again fainted. The testimony of prosecutrix does not inspire confidence. Moreover, her testimony is not corroborated by medical evidence. Dr. Neelu Mishra conducted her medical examination and she was produced as PW6. Doctor has stated in her report that no spermatozoa was found. There were no injuries. Doctor has clearly opined that at the time of her internal medical examination, she did not find that intercourse was committed with her. Hence, this statement of Doctor falsifies the factum of rape. Enmity of prosecutrix’s father with the appellant is itself stated by the prosecutrix in her examination-in-chief. Learned counsel for the appellant has relied on Jafar and another Vs. Hence, this statement of Doctor falsifies the factum of rape. Enmity of prosecutrix’s father with the appellant is itself stated by the prosecutrix in her examination-in-chief. Learned counsel for the appellant has relied on Jafar and another Vs. State of U.P. 2009 0 Supreme (All) 3417 and Bibhishan Vs. State of Maharashtra 2007 0 Supreme (SC) 1219. 14. We have gone through the above case laws, which are fully applicable on the facts of this case. 15. We have also considered the judgements of Apex Court in State of Gujarat Vs. B. L. Dave passed in criminal appeal No.99 of 2019 and Guru Dutt Pathak Vs. State of Uttar Pradesh passed in Criminal Appeal No.502 of 2015, in which parameters of reversing the judgments of court below are guided. 16. We have convinced that the doctor has positively opined that she could not find any trace of spermatozoa and, therefore, no injury marks. She further testified that the prosecutrix had not been subjected to any forcible sexual harassment or intercourse. From beginning it was projected that the girl was minor but the learned trial judge came to the finding that provision of POCSO Act will not be applicable in this case because she was not minor. 17. Offence of rape is not proved, hence, the accused could not have been punished under Section 3(2)(V) of SC/ST Act. We are unable to accept the submission of learned counsel for the State that just because the accused was knowing the prosecutrix belonging to the vulnerable caste cannot itself take the matter in that ambit and it is relevant to mention that when offence of rape is not proved then there is no question of punishment under Section 3(2)(V) of SC/ST Act. 18. Hence, after meticulous appreciation of evidence on record and in the facts and circumstances of this case, we are of the considered view that prosecution has failed to prove the charges against the appellant. Learned trial court did not appreciate the evidence in right perspective as far as the rape is concerned and the accused-appellant was wrongly convicted on the basis of perverse finding. 19. Accordingly, the appeal is likely to be allowed. 20. The appeal is allowed. Conviction and sentence of appellant awarded in this case is hereby set aside. Appellant be set free forthwith if he is not wanted in any case. 19. Accordingly, the appeal is likely to be allowed. 20. The appeal is allowed. Conviction and sentence of appellant awarded in this case is hereby set aside. Appellant be set free forthwith if he is not wanted in any case. Fine, if deposited, be refunded to the appellant. Bail bond is cancelled and sureties are discharged, if any. Record of court below be sent back forthwith.