Allahabad High Court
Bhoora Yadav @ Rahul And Another vs State Of U.P. on 10 February, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 27 Case :- CRIMINAL APPEAL No. - 360 of 2015 Appellant :- Bhoora Yadav @ Rahul And Another Respondent :- State Of U.P. Counsel for Appellant :- Ashish Pandey, Satya Prakash Rathor Counsel for Respondent :- Govt.Advocate, Virendra Kumar Gupta CORAM: Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the Judgment and order dated 1.11.2014 passed by the Additional Sessions Judge, Court No. 1, Mahoba in S.T. No. 72 of 2013, (State Vs. Bhoora Yadav @ Rahul and others) arising out of Case Crime No. 367 of 2013 under Sections 363, 366 & 376 I.P.C. Police Station Charkhari, District Mahoba whereby the accused Brij Lal Dhimar was acquitted of all the charges whereas Bhoora Yadav @ Rahul and Ramjan were found guilty under Sections 363, 366 & 376 I.P.C. and each of them was sentenced to undergo ten years rigorous imprisonment alongwith fine of Rs. 10,000/- under Section 376 I.P.C.; five years rigorous imprisonment along with fine of Rs.10,000/- under Section 366 I.P.C.; and three years rigorous imprisonment along with fine of Rs.5,000/- under Section 363 I.P.C. with default stipulation.
2. As per the prosecution version brief facts of the case are that a written report was presented by informant Gorey Lal to the S.P., Mahoba on 17.4.2013 stating that he is resident of Imilya Dang, Police Station Charkhari, District Mahoba. On 9.4.2013 the daughter of the informant aged about 14-15 years had gone with him to get her medicine. After getting medicine, the informant was standing on the bus-stand and was waiting for some conveyance. But, he had forgotten to take some household goods, as such, as soon as he started going towards the market at 4 O'clock in the day time, the accused Bhoora Yadav, Brij Lal and Ramjan came on motorcycle and forcibly took away the victim on motorcycle. The informant raised hue and cry and informed the police on the same day but neither the report was registered nor her daughter was traced. Prior to this incident also, the accused threatened to kidnap the victim. On the basis of the written F.I.R., chik report was scribed by P.W.4 Constable Rameshwar Prasad, which was proved as Ext. Ka-6. Further this witness scribed the G.D. which was proved as Ext. Ka-7. The victim was medically examined by Dr. Rashmi Sharma (P.W.5), who did not find any external or internal injury on the body of the victim. The hymen was old torn. There was no discharge from vagina. This witness proved her medical report besides the supplementary report and pathological report as Exts. Ka-8, Ka-9 & Ka-10.
3. Investigation was entrusted to P.W.6 Ramlal Kaithal. He copied the chik report in the case diary along with the order of the S.D.M. Charkhari, who recorded the statement of the victim under Section 164 Cr.P.C. which was copied in the case diary along with other medical reports. On 28.4.2013 the statement of the informant Gorey Lal was recorded in the case diary and, on his pointing out, he inspected the spot and prepared the site plan, which was proved as Ext.Ka-14. On the same day, he obtained photo copy of the mark-sheet of the victim and made a mention of the same in the case diary. The copy of the mark-sheet was proved as Ext. Ka-3. On the same day, hearsay evidence was recorded. On 1.5.2013 the supplementary report of the victim was perused and copied in the case diary and the statement of the witness Kalla was recorded. On 3.5.2013 the statement of the victim was recorded. After that, this witness was transferred due to which further investigation was conducted by P.W. 7 Sri Prakash Singh. On 27.5.2013 he arrested accused Brij Lal and recorded the statement of Brij Lal in the case diary. On 28.5.2013 the accused Ramjan was arrested and his statement was recorded in the case diary. On 6.6.2013 after obtaining permission from the court, he recorded the statement of the victim recorded under Section 164 Cr.P.C in the case diary and on the same day, accused Bhoora was arrested and his statement was recorded. On 9.6.2013 the statement of the previous Investigating Officer was recorded and charge sheet was submitted against the accused which was proved by this witness as Ext.Ka-12. The papers relating to the arrest of the accused was proved by this witness as Ext. Ka-12 wrongly numberd Ka-13 and Ka-14.
4. The prosecution examined as many as seven witnesses in this case. P.W. 1 is Gorey Lal informant, who has proved written report as Ext. Ka-1. P.W. 2 is the victim who has proved her statement recorded under Section 164 Cr.P.C. as Ext. Ka-2. P.W. 3 is Sita Ram, principal, who has proved the copy of mark-sheet relating to the victim as Ext. Ka-3. The statements of P.W. 4 constable Rameshwar Prasad, P.W.5 Dr. Rashmi Sharma, P.W.6 S.I. Ram Lal and P.W. 7 Sri Prakash Singh, Station Officer has been discussed by me earlier.
5. After close of the prosecution evidence, the statements of the accused was recorded under Section 313 Cr.P.C. in which they denied the occurrence and pleaded false accusation. However no evidence was sffivrf in defence.
6. The learned lower court, after perusing the record and hearing the counsel for the parties, acquitted the accused Brij Lal and convicted the appellants as stated in para 1 o f the Judgment. Feeling aggrieved the accused have come up in the present appeal.
7. I have heard learned counsel for the parties at length and perused the trial court record.
8. The counsel for the appellant has submitted that the learned lower court has based its findings on inadmissible evidence, thus, the conviction is bad in the eyes of law.
9. Per contra the learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the victim and no corroboration was required when the testimony of the victim was clear, cogent and convincing. He has further contended that there was nothing to show that the victim has falsely implicated the accused and the appeal is liable to be dismissed.
10. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
11. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her persons even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & others Vs. State of Maharashtra, (1999) 1 SCC 220.
12. A primary objection has been raised by the counsel for the appellants that there is inordinate delay in lodging the FIR, which has not been reasonably and sufficiently explained by the prosecution.
13. As per the chik report, the victim was taken away in front of her father's eyes on 9.4.2013 at 1 O'clock at day time, whereas as per Ext.Ka-1 it reveals that an application was moved before the S.P., Mahoba on 17.4.2013. Although in the F.I.R. itself the informant has stated that the on the day of the occurrence itself, he had informed the police Charkhari about the incident and is running from pillar to post since that date but his report was not lodged and his daughter was also not traced, the averments in the F.I.R. cannot take the place of proof for which the court has to revert back to the statement of the informant (P.W. 1) Gorey Lal. He has stated that he went to the police station on the same day after the occurrence to lodge his report but his report was not lodged and the police asked him to trace his daughter. Eight days after the incident, on Tehsil diwas, he submitted an application to the S.P., Mahoba and after that the matter was investigated. Once any witness states before the court on oath, the only method to test his veracity is cross-examination. The averments of the F.I.R. are falsified from the cross-examination of the P.W. 1 Gorey Lal, who states, "eq>s **** ?kVuk ds 8&9 fnu ckn Fkkuk egksck esa feyh FkhA Fkkuk pj[kkjh eq>ls dgrh Fkkh fd yMdh **** dks egksck Fkkuk vius lkFk ys tkvks rks bl ij eSaus yMdh ys tkus ls euk dj fn;k Fkk D;ksafd esjk eqdnek ugha fy[kk FkkA" Thus, it is evident that the F.I.R. was not in existence even 8-9 days after the occurrence. The F.I.R. was lodged on the basis of the application submitted to the S.P. in which it has been stated that till the date of presenting of the application, i.e., 17.4.2013, his daughter was not traced. But, contradicting his averment, this witness has stated that the girl was traced before the application was submitted to the S.P. and the police of the Police Station Mahoba had already informed him about the recovery of the girl. What the witness P.W. 2, who is victim of the case, has said is very important, inasmuch as she has stated that on the date of occurrence, she had brought her blind father to Charkhari. This gives an impression that as per the version of this witness, her father was blind who could not have seen any occurrence. Thus, the F.I.R. appears to be ante time.
14. Counsel for the appellants have further submitted that the whole prosecution story is not reliable, inasmuch as according to the prosecution case itself, the name of Brij Lal was incorrectly mentioned in the F.I.R. As per version of the informant ,he had not stated the name of Brij Lal and even as per the victim Brij Lal was not involved in the offence. Hence, the facts cannot be bifurcated, in such a way, so as to convict some of the named accused, moreso, when the F.I.R. itself becomes suspicious and is antetimed.
15. It is trite law that absence of injuries on the internal or external parts of the victim will not by itself falsify the case of rape nor it can be construed as evidence of rape. Besides, I am conscious of the fact that in a matter of rape the statement of the prosecutrix must be given primary consideration but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt, applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully. I have also not lost sight of the fact that a young girl suffering from rape trauma syndrome has to pass a very hard time because when a lady is raped, it shatters her life. I am also aware that in the traditional non-permissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only this, she would be sacrificing her future prospect of getting married and having family life but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle.
16. In (2007) 12 SCC 57, Radhu Vs. State of Madhya Pradesh, the Hon'ble Apex Court has laid down as under:-
" It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecturix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a "rape", if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
17. No doubt a victim of rape suffers a shock and horror due to the incident. But the Apex Court in State of U.P. Vs. Naresh, (2011) 4 SCC 324, as far as the evidence of P.W.1 Gorey Lal, father of the victim, is concerned, has laid down as under:-
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crudible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statements made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
18. Even otherwise, it is well settled that the criminal court should not expect a set reaction from the eye witness on seeing an incident like murder and minor contradictions are likely to occur in the statement of truthful witness. The testimony of eye witness should only be rejected if it is so improbable and so inconceivable from any human being pitted in such a situation. But, as has been laid down in Radhu Vs. State of Madhya Pradesh (supra), there are also rather instances where false cases of rape have been lodged. P.W.1 Gorey Lal is also said to be a witness, who saw the accused persons taking away the victim in front of his eyes. He has stated that some household articles were left to be purchased and he was going to take them. The same has been stated by the witness in a statement before the court. The victim (P.W.2) has also stated that her father went to bring remaining household goods whereas in the statement under Section 164 Cr.P.C. (Ext. Ka-2), the witness has stated that her father left her at the bus stand to find conveyance. As far as the resiling of the victim from her statement under Section under 164 Cr.P.C. is concerned, the Hon'ble Apex Court in Criminal Appeal No. 879 of 2000, Musauddin Ahmad vs State of Assam decided on 6th July, 2009 has laid down that if there are material contradiction in the statement of the victim recorded under section 164 Cr.P.C. and the statement recorded before the Court, for which the prosecutrix could not furnish any explanation in her cross-examination, the benefit would definitely go to the accused.
19. As far as the taking away of the victim by the accused is concerned, as per averment in F.I.R. (Ext.Ka-1), the accused Bhoora, Ramjan and Brij Lal came on motorcycles and took away the victim. In cross-examination, the informant has stated that he did not mention in the written report that the accused came by motorcycles and he had also never seen four people travelling on one motorcycle. In fact on the place of occurrence, the accused had come on motor cycle. P.W. 2 victim has also stated that only Bhoora and Ramjan came by motorcycle. Although P.W.1 Gorey Lal father of the victim has stated that he turned back and saw the accused persons taking away the victim, but he has stated that Brij Lal was not there amongst the accused. Now, as far as the false accusation of Brij Lal is concerned, although his name finds place in the F.I.R. but P.W. 1 Gorey Lal has stated that Brij Lal was not named by him in the F.I.R. He had read his typed application and then put his thumb impression on it. The prosecution declared the witness hostile and cross-examined this witness, in which he stated that the typist had only read over the name of Bhoora and Ramjan and name of Brij Lal was not read over to him. No enmity of the informant with the typist has been pleaded. Thus, there is no reason why the typist would include the name and parentage of the accused Brij Lal without having enmity with him or without any plausible reason. When the victim was cross-examined on this point, she stated that although the accused Brij Lal was not involved in the incident but she named him because the police personnel asked her to do so. She admitted that she stated the name of Brij Lal before the Magistrate when her statement under Section 164 Cr.P.C. was recorded. The victim has further stated that the name of Brij Lal was tutored to her by the police. Prior to that, she did not know Brij lal. Stating on this point, she has stated "c`tyky uke eq>s iqfyl us fl[kk;k Fkk blds igys eSa ugh tkurh FkhA iqfyl okys /kedkrs jgs fd c`tyky dk crkvks ugha rks rqEgs tsy Hkst nsaxs"
20. Thus, it has been stated that name of Brij Lal was wrongly typed by the typist, but perusal of the record shows that the parentage of Brij Lal has been mentioned to be Kali Charan, which is admitted by PW-1 Gorey Lal and no one has come forward to even suggest that the informant had any enmity with the typist. Even the name of the typist has not come forth and a million dollar question arises as to how the typist came to know the parentage of all the three accused, which have been afterwards added by hand by a pen. This is not a case, in which the witnesses cannot be termed to be partially reliable or partially truthful, inasmuch as right from the beginning when the whole machinery was set into motion, the prosecution came up with definate case that all the three accused were involved in the incident and it appears that due to some extraneous consideration, the informant and his daughter tried to exonerate the accused Brij Lal, whose name was mentioned in the written report, which was on record.
21. As far as the evidence of the informant regarding the accused Ramjan and Bhura Yadav alias Rahul is concerned, as per FIR there were many motorcycles, but as per statement of PW-1 Gorey Lal and PW-2, the victim, the accused persons went on one motorcycle. The victim stated that her mouth was pressed and she was taken away on the motorcycle. In cross-examination, PW 1, Gorey Lal has stated that while going to the market, he turned back and saw that the accused were taking his daughter on a motorcycle. He did not come to the police station with the written report.
22. The sole statement of the victim can be relied for convicting the accused, if her testimony is convincing, probable and worthy of credence. PW-2, the victim has stated that when she was waiting at the bus-stand, Bhura Yadav alias Rahul and Ramjan came by motorcycle and no third person was there. The mentioning of this fact that "no third person" was at the inset raises a doubt since there was no necessity of stating that in fact she has gone to extent this by saying that she did not recognise the third person, meaning thereby that one stand taken by the prosecution is that Bhura Yadav alias Rahul, Ramjan and Brij Lal were present, but the victim has stated that Bhura Yadav alias Rahul and Ramjan and one more unknown person were there, whereas in her next breath, she has stated that only Bhura Yadav alias Rahul and Ramjan were there and no third person came to kidnap her. Further the victim has stated that she was threatened by Bhura Yadav alias Rahul and Ramjan. The motorcycle was being driven by Ramjan. She was sitting in between. She was caught hold by Bhura Yadav alias Rahul from behind. As per statement of this witness, both the accused brought her to Mahoba and from Mahoba they took her to Delhi by train. She was intoxicated as she was administered tablets of intoxication. At Delhi she was raped by Bhura Yadav alias Rahul and Ramjan. After 6-7 days, she was left at Mahoba Bilvai Tigaila.
23. The best way to test the veracity of this witness is cross-examination besides noting her demeanour. It appears that this witness has left no stone unturned to mislead and misguide the court, inasmuch as going against the moral values she has stated that " esjs firk va/ks gSa mUgsa fcydqy fn[kkbZ ugh nsrk gS A eSa ?kVuk ds ckn 7 fnu rd yxkrkj csgks'k ugh jghA" If the father of the victim was blind, how he could see the appellants taking away the victim and how he could go alone to the market without anybody's assistance. Nowhere the informant has himself stated that he is blind. The victim has admitted that the train by which she traveled to Delhi, in that coach many people were there. Suddenly, it appears that this witness realized that what she had stated before the court could damage her case, hence, rectifying her mistake, she has stated that the accused had gagged her mouth and threatened her. When the accused was threatening her in the train, all the passengers were hearing. In her next breath, she has contradicted herself by saying that her mouth was gagged till Mahoba and thereafter her mouth was opened.
24. As far as the stay of 6-7 days in Delhi is concerned, she has stated that she took bath in the room, where she was detained. The room bore one door and one window. When the window was opened, many people were visible, but she did not come out.
25. A very interesting statement given by this witness is " eqfyt+eku esjs fy;s iqjkus diM+s yk;s Fks eSa mUgh dks igudj cny ysrh FkhA" This is an absolutely improbable conduct and it appears that this witness used to change her clothes when she took bath while staying with the accused. The prosecutrix was all along traveling in public conveyance for many days, but she did not raise any alarm. This fact is speaking volumes for itself. There is no such case of the prosecution that the accused were armed with any weapon. In the absence of any such case of the prosecution, the story of threatening does not appeal to the Court.
26. In Mohammad Ali Vs. State of UP, reported in 2015 (7) SCC 272, the Hon'ble Apex Court has laid down as follows:
"21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval to the same.
22. Resultantly, the appeals are allowed, judgment of conviction and order of sentence are set aside and as the appellants are on bail, they be discharged of their bail bonds."
27. Coming to the statement of Dr. Rashmi Sharma, PW-5, perusal of the statement shows that victim's hymen was torn, vagina was admitting two fingers easily and there was no injury on external or internal parts of the body.
28. In Lalliram vs State of M.P. reported in 2008(10) SCC 69, it has been laid down as follows:
"It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra and others v. State of Orissa (1977 (3) SCC 41) where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration".
29. In the present case, the testimony of the prosecutrix does not find support from the medical evidence. Besides the testimony of the prosecutrix is unreliable and shaky. There are many lacuna appearing in the FIR and oral statement before the police and the statement before the Court, which certainly leaves a room of doubt as to the witness being tutored and tainted, which leads to a positive conclusion that the act of sexual intercourse, if any, was not by force.
30. It has been contended by learned AGA that even if it is presumed that the victim was a consenting party, but since she was a minor at the time of occurrence, her consent would carry no value. He has further submitted that the age of consent on the relevant date was 18 years, whereas the victim was below 18 years, hence the appeal is liable to be dismissed.
31. As far as the age of the victim is concerned, PW 3 Sita Ram has been produced by the prosecution who has stated the date of birth of the victim to be 2.7.1999 and according to which the age of the victim as on the date of occurrence would come to less than 14 years. There is no ossification report of the victim regarding her age. Father of the victim Gorey Lal is an illiterate rustic villager who could not give any details about the age of the victim. In this respect the victim PW 2 has specifically stated that she is illiterate. The marks sheet attached with the file did not relate to her and some body had forged this paper and filed it on record. Another glaring statement given by this witness is that "eSa gj txg viuk vaWxqBk gh yxkrh gwaWA" Although the statement of the victim recorded before the court has been signed by this witness and although the statement recorded under section 164 Cr.P.C. was not signed by her, but it bore the thump impression. In this way this witness is trying to sway the judicial balance which shakes the conscience of the court and this witness can safely be termed to be a liar.
32. So far as the recovery of the victim is concerned, she has stated that she was left at Mahoba Bilvai Tigaila. What her father has to say in the matter has also to be looked into. He has stated that he met his daughter at Kotwali, the police informed him that his daughter was at Kotwali, after which he went to Kotwali, where the victim was present. The Mahoba police did not inform anything as to how the victim reached the police station.
33. The statement of PW 6, investigating officer SI Ram Lal is significant who has stated that " ihfM+rk fnukaWd 19-04-13 dks Fkkus ij vkbZ Fkh A ihfM+rk us ,d izkFkZuki= Fkkuk/;{k dks fn;k FkkA ihfM+rk blfnu Fkkus ij vdsys vkbZ FkhA ml izkFkZuki= dh udy eSus dsl Mk;jh esa vafdr fd;k FkkA ;g udy jiV ua0 35 fn0 19-4-13 gSA" He has stated that the incident took place at Charkhari bus stand where there were many shops, which remained open till 7.00 to 8.00 PM. He has also submitted that the victim stated to him that all the three accused kidnapped her. Thus, the recovery of the victim becomes a puzzle, which remained unsolved throughout the trial. When the victim had herself gone to the police station and had given an application, it was the duty of the prosecution to produce that application before the trial court. Non-production of that application or withholding of that application would compel the court to draw an adverse inference against the prosecution as envisaged under section 114 (g) of the Indian Evidence Act.
34. Another very glaring feature of this case is that the informant has specifically stated that as per the version of the informant PW 1, he has stated that after the incident he met his daughter for the first time, 8-9 days after, at Mahoba police station. This witness has further stated that " Fkkuk pj[kkjh eq>ls dgrh Fkh fd yM+dh **** dks egksck Fkkuk vius lkFk ys vkvks rks bl ij eSus yM+dh ys tkus ls euk dj fn;k Fkk D;ksafd esjk eqdnek ugh fy[kk FkkA pkj ikaWp fnu rd *** dks Fkkus ij gh jgus fn;kA iz'u %& **** vkils ?kj tkus ds fy;s jks jgh Fkh ;k ugh\ mRrj %& [kwc jksrh jgs ge D;k djsaA"
35. This conduct of this witness and the answer given by the witness, the way he reacted to the question shows that since the victim had gone on her own account, the conduct of the father had become indifferent towards the daughter inasmuch as he was not at all eager to take his daughter back home. Rather, he preferred to leave her at police station at the mercy of the police personnel just because the report was not lodged. He did not even bother to take care to stay with his daughter. He did not even feel sensitive towards the tears of his daughter.
36. The victim has denied to the suggestion given to her that she refused to go with her father because she wanted to marry her lover. As far as the age aspect of the victim is concerned, I do not think, it needs consideration at this stage because even it is presumed that the victim was below 18 years, it would be of no consequence because she herself is an absolutely unreliable witness, whose conduct throughout the case has been awful. The father has gone to the extent of having an indifferent attitude towards his daughter. The daughter has gone to the extent on declaring her father to be a blind person.
37. Thus, the whole prosecution story is a bundle of lies. The prosecution witnesses PW-1 and PW-2 are unworthy of credence and not at all trustworthy.
38. The accused persons in the statement under section 313 Cr.P.C. have denied the occurrence. Although no defence evidence has been adduced, but since the prosecution has miserably failed to prove the case against the accused, the conviction passed by the learned lower court is bad in the eye of law.
39. Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused Bhoora Yadav alias Rahul and Ramjan, and as such the accused are entitled to be acquitted and the appeal is liable to be allowed.
40. Hence, the impugned judgement of conviction and sentence dated 01.11.2014 passed by the learned Additional Sessions Judge, Court No. 1, Mahoba in Sessions Trial No. 72 of 2013, under sections 376, 366, 363 IPC is hereby set aside.
41. Accordingly, the appeal is allowed.
42. The appellants Bhoora Yadav alias Rahul and Ramjan are in jail. They shall be released forthwith unless wanted in any other case. The provision of Section 437-A Cr.P.C. shall be complied forthwith.
43. Let a copy of this order be sent to the trial court concerned.
Order Date :- 10.2.2016 Ram Murti/Sazia