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2024 DIGILAW 279 (UTT)

State of Uttarakhand v. Mayank Gairola

2024-04-29

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : RITU BAHRI, C.J. 1. The State has come up in appeal against the judgment dated 06.10.2023, passed by Additional Session Judge, FTSC, Rudrapur, District Udham Singh Nagar, whereby the respondent-Mayank Gairola, has been acquitted in trial facing under Section 376(2) of IPC. 2. The prosecution story is that between 09.11.2021 and May, 021, the accused assured the victim of getting her job s a doctor’s helper and on the pretext of a birthday party, he took the victim to a cafe and mixed intoxicants in her food, and raped her, and thereafter, the accused raped the victim on different dates. 3. On the basis of the complaint, an F.I.R. was registered and the Investigating Officer conducted the investigation, and thereafter, the respondent was chargesheeted under Sections 328 and 376 of IPC. The matter was sent to the learned Magistrate on 10.02.2022. Cognizance was taken, and the case was handed over to the Sessions Court on 25.02.2022. On 25.03.2022, charges for the offence under Sections 328 and 376(2) of IPC were framed against the respondent, and he denied the allegations and sought for a trial. 4. The prosecution has examined the following witnesses: “PW-1 Victim PW-2 Father of the victim PW-3 Mother of the victim PW-4 S.I. Neha Dhyani PW-5 S.I. Supriya Negi” 5. The prosecution has produced tehrir (Exhibit P-1); statement of victim recorded under Section 164 Cr.P.C. (Exhibit P-2); site plan of the incident (Exhibit P-3); charge-sheet (Exhibit P-4) and arrest memo (Exhibit P-6) as documentary evidence. 6. The genuineness of the medical report (Exhibit P5) was accepted by the counsel for the accused, and according to the Forensic Science Laboratory Report form No. 23A/2, semen of the respondent was found. 7. The statement of the respondent under Section 313 Cr.P.C. was recorded, in which, the respondent has admitted that he was living on rent in the neighbourhood of the victim and he also stated that “I used to live on rent in the neighbourhood of the victim and was also acquainted with her family, and he had a friendship with the victim, but he could not get married because he is a Hindu and the victim is Christian. He is innocent and has been falsely implicated.” 8. He is innocent and has been falsely implicated.” 8. The victim appeared as PW-1, and in her examination-in-chief, she stated that she knew the accused-Mayank Gairola, and the accused-Mayank lived next to her house and she had met the accused on the terrace. It is also stated by the witness that the accused took her to F.N.F. Cafe, Kashipur for job and there he ordered Chinese food, water and lemonade. The victim also stated that she had not eater anything and only drank lemon water and she started feeling dizzy. She became unconscious and the accepted picked her up from there and he took her somewhere in a four-wheeler and when she regained consciousness, she found that she was in a hospital room in Jaspur and the accused-Mayank was present in room. Thereafter, the accused used to call her to the terrace everyday and sometimes to the room. He had raped her and kept on having physical relations with her several times and threatened her to make the video viral. The victim further stated that the accused-Mayank had married her in Jaspur, and no marriage papers were made, after which the accused left her and ran away to Delhi. Thereafter, notarized marriage took place in the police station and after the marriage, the accused kept the victim in the room with him. The victim also stated that the accused kept her for 28 days with him after marriage and he left her and ran away in April, 2021. The victim stated that she was studying in B.Com and she became pregnant after having physical relations with the accused. The witness stated in her cross-examination that she knew that the accused since 2021 and she also knew Dr. Rajeev Sharma. It is also stated that she knew Mayank’s cousin, whose name was Kanak. It is also stated that the marriage contract was signed by the victim and the accused. Photocopy of marriage certificate is Form No. 6A/20 and 6A/20, as mentioned in the agreement dated 10.09.2021. The victim had made no complaint regarding the cafe incident. The incident at cafe was first reported on 16.09.2021. She had adopted the surname Gairola on her Facebook, and she believed that she was married with the accused. 9. Photocopy of marriage certificate is Form No. 6A/20 and 6A/20, as mentioned in the agreement dated 10.09.2021. The victim had made no complaint regarding the cafe incident. The incident at cafe was first reported on 16.09.2021. She had adopted the surname Gairola on her Facebook, and she believed that she was married with the accused. 9. PW-2-Father of the victim and PW-3-Mother of the victim, in their examination-in-chief stated that their daughter remained silent for two-three days and when they asked the reason, the victim told that Mayank was trying to get her job. He took her to a hotel and mixed something in her food and raped her. The accused had kept her with him in a rented house for a month, and after that, he used to beat her and after a month, accused-Mayank ran away to Delhi leaving the victim. Both the witnesses stated that their daughter knew that accused-Mayank was a Brahmin and the victim was a Christian. 10. Both, PW-4 Sub-Inspector Neha Dhyani and PW-5 Sub-Inspector Supriya Negi, stated that the victim had given her the stamp paper of her marriage agreement with the accused. No inspection was done of the site, and the victim had not mentioned any date, time, month and year of the incident in her statement, nor had she sought information from the victim about the date, month, time and year of the incident that had happened. 11. The accused, in his statement under Section 313 Cr.P.C. has admitted being the neighbour of the victim and has also stated that he and the victim were in a live-in relationship, and they had sexual intercourse as well. The establishment of the relationship was not in dispute. 12. After going through the entire evidence, the Trial Court observed that, as per the allegations, raped was committed by the accused in April, 2021, but the FIR was registered by her on 09.11.2021, and there was no explanation that why she kept silent for six months. The victim-PW-1 also admitted that there was an agreement of marriage with the accused, and the said agreement was stated to be Form No. 6A/29 to 6A/30. The victim, in her examination-in-chief, also stated that after the marriage, Mayank kept her in the room with him for 28 days. The victim-PW-1 also admitted that there was an agreement of marriage with the accused, and the said agreement was stated to be Form No. 6A/29 to 6A/30. The victim, in her examination-in-chief, also stated that after the marriage, Mayank kept her in the room with him for 28 days. The above statement of PW-1, in her examination-in-chief, also reduced the credibility of her statement that she was raped by the accused. Even, as per the statements of PW-2-father of the victim and PW-3-mother of the victim, when the victim had told them about the allegation of rape, why the parents kept silent for so many months to register the FIR. Finally, the Investigating Officer PW-4-Neha Dhyani also stated that as per the map of the alleged incident Exhibit P-3, the said map was not of the alleged cafe, nor of the alleged hospital where the victim has stated that she was raped. As per the medical report (Exhibit P-5), hymen of the victim was torn, and hence,, the accused had admitted that they were in live-in relationship with the victim, and the victim has also admitted that she was living with the accused in his room for 28 days. As per FSL report, Form No. 23A/2, semen of the accused was not found on the vaginal side of the victim. The medical report (Exhibit P-5) and F.S.L. have not bearing in this case. On the basis of the analysis, the Trial Court comes to the conclusion that the victim was having the live-in relationship with the accused, and they had stayed in the room of the accused for 28 days, and this fact was admitted by her. The marriage agreement was also admitted by her in her examination-in-chief. Even in her Facebook, she had reflected her surname to be Gairola. 13. The victim was a major, and was in a relationship out of her own choice, and hence, the allegation of rape could not be made out. The judgment of the Trial Court has been passed on the correct appreciation of evidence, and the same does not require any interference by this Court. 14. For the reasons stated hereinabove, there is no merit in this appeal, and the same is, accordingly, dismissed. 15. Pending application, if any, also stands disposed of.