Allahabad High Court
State Of U.P. vs Bhola Alias Pramod And 3 Others on 7 March, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 49 Case :- GOVERNMENT APPEAL No. - 463 of 2021 Appellant :- State of U.P. Respondent :- Bhola Alias Pramod And 3 Others Counsel for Appellant :- G.A. Counsel for Respondent :- Vijay Bahadur Shivhare,Vijay Bahadur Shivhare Hon'ble Suneet Kumar,J.
Hon'ble Vikram D. Chauhan,J.
(Per : Hon. Vikram D. Chauhan, J.)
1. Heard Sri Nagendra Srivastava, learned AGA for the State and perused the record.
2. The instant appeal has been filed against the judgment and order dated 21 December, 2019 passed by learned Special Judge (POCSO Act)/Additional Sessions Judge, Court No.1, Hamirpur in Special Case No. 17 of 2015 (State Vs. Bhola alias Pramod and others) arising out of Case Crime No. 403 of 2014, under Sections 363, 366, 376D, 342 and 504 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, Police Station Sisolar, District Hamirpur, whereby the accused-respondents were acquitted.
3. As per the prosecution case, informant - Ramcharan lodged one report that his daughter (victim) who is aged about 15 years; studying in Class-VII at Meerut; residing with his brother-in-law Shyamlal; victim three months prior to occurance went to her uncle's (Mama) - Shayamlal residence at Meerut; Bhola alias Pramod, son of Shrichandra Kori used to talk from mobile no. 73XXXXX755 with informant's daughter having mobile no. 80XXXXX493; information was given by brother-in-law of the informant namely Shyamlal to the informant; informant contacted father of Bhola alias Pramod namely Shrichandra and his brother Santosh with the request to ask accused Bhola alias Pramod to desist from talking to his daughter; however, aforesaid person abused the informant; thereafter Bhola alias Pramod on 2 November, 2014 has abducted the daughter of the informant and the informant is afraid that some untoward incident may happen with the aforesaid girl.
4. On the basis of the aforesaid, report dated 9 November, 2014 at 14:20 hours was lodged under Sections 363 and 366 Indian Penal Code at Police Station Sisolar, District Hamirpur against Bhola alias Pramod and Santosh, both sons of Shrichandra Kori and Shrichandra Kori, son of not known, all resident of Gram Panchayat Bhamai, Police Station Sisolar, District Hamirpur. The aforesaid report was registered as Case Crime No. 403 of 2014.
5. On 4 December, 2014, statement of the victim under Section 164 of the Criminal Procedure Code was recorded. She has stated that on 22 July, 2014 she was travelling along with her uncle Shyamlal to Meerut by train; Santosh and Bhola who are resident of same village have come following the victim to Meerut; for two days the aforesaid persons were harassing and following the victim; Santosh and Bhola went back to the village from Meerut; victim was residing with her Mama; on 2 November, 2014 when the victim was going to school, Santosh, Bhola, Ramsewak and Shrichandra were present along with their vehicle Marshall and when the victim came close to the aforesaid vehicle, Ramsewak abused and shouted to catch the victim and thereafter Shrichandra opened the gate of the vehicle and Ramsewak, Santosh and Bhola caught hold and forcefully took her into the vehicle and gagged the mouth of the victim; thereafter the victim was locked in room at Ghaziabad; Ramsewak and Shrichandra left; Santosh and Bhola residing along with the victim at Ghaziabad; Bhola under intoxication used to come in the night and Santosh would stay outside the room; Bhola committed rape in the night; for five days Bhola committed rape with the victim; on 7 November, 2014 in the afternoon Santosh also committed rape of the victim; on 7 November, 2014 both the accused took the victim from the room at Ghaziabad to the railway station and brought her to Kanpur. The victim thereafter by catching passenger train came back; Santosh and Bhola stayed at Kanpur; when the victim came to Maudaha then she called her father on mobile phone and thereafter her father brought her on 8 November, 2014 to her house.
6. During investigation, investigating Officer received copy of the admission register from Principal, Uchh Prathmik Vidyalaya, Bhamai, Hamirpur wherein the date of birth of the victim was recorded as 20 April, 1999.
7. Victim was medically examined on 22 November, 2014 at District Women Hospital, Hamirpur. The doctor who has examined the victim has recorded in the medical report dated 22 November, 2014 that the victim has informed that one boy with his friend has taken her to Ghaziabad and has locked her in a room and committed rape. No external injury was found on the body of the victim. The hymen was ruptured, old and healed. No internal injuries were found on the body of the victim. There was no bleeding from the private parts. The vaginal smear was taken from the private part of the victim and X-ray was advised.
8. The Investigating Officer has also prepared memo of recovery of the victim on 22 November, 2014. The recovery memo is marked as Exhibit Ka - 7A and proved by Prosecution Witness No. 8. According to the recovery memo, the victim was brought by her father to the police station on 22 November, 2014 and was sent for medical examination and X-ray along with her father.
9. The Investigating Officer thereafter prepared the site plan of the incident on 21 February, 2015. The site plan was marked as Exhibit Ka-6 and was duly proved by Prosecution Witness No. 7.
10. After the completion of the investigation, charge sheet was submitted by the Investigating Officer against Bhola alias Pramod under Sections 363, 366 and 376 IPC and Sections 5/16 and 5-8/6 of the Protection of Children from Sexual Offences Act, 2012. The Charge Sheet was submitted before the Court concerned on 22 February, 2015. The investigating officer after investigation submitted charge sheet against accused Bhola alias Pramod.
11. The Court below by order dated 29 July, 2017 summoned under Section 319 Cr.P.C, accused namely Santosh, Shrichandra, Ramsewak under Section 376D, 342, 504, 363, 366, 120B IPC and Section 4 POCSO Act.
12. On 4 December, 2017 the court concerned has framed charges against Bhola alias Pramod under Sections 363, 366, 376D and Section 6 POCSO Act and against Santosh under Sections 363, 366, 342, 504 and 376D IPC and Section 6 of the POCSO Act. The trial court on 4 December, 2017 has also framed charges against Shrichandra and Ramsewak under Sections 363, 366, 342, 504, 376D and 120B IPC and Section 6 of the POCSO Act. Accused persons denied the charges and claimed to be tried.
13. The prosecution in support of the case testified eight witnesses, namely, (PW-1) Ramcharan, (PW-2) victim, (PW-3) Constable Himanshu Gautam, (PW-4) Dhirendra Singh, Principal, (PW-5) Dr. Asha Sachan, (PW-6) Inspector Abdul Haleem (I.O.), (PW-7) Inspector Nandlal Bharti (I.O.) and (PW-8) Inspector Incharge Bhagwati Prasad Misra (I.O.).
14. The prosecution in support of the case produced the documentary evidence i.e. Complaint Exhibit Ka-1, Statement under Section 164 Cr.P.C. Exhibit Ka-2, FIR Exhibit Ka-3, General Diary Exhibit Ka-4, Admission Register Exhibit Ka-5, Medical Report Exhibit Ka-5A, Site Plan Exhibit Ka-6, Charge Sheet Exhibit Ka-7 and Fard Baramadgi Exhibit Ka-7A.
15. The statement of accused person under Section 313 of Cr.P.C. was recorded. The accused person denied the charges as false and concocted. The accused person claimed that they have been falsely implicated on account of prior enmity. The accused persons did not produce any defence witness.
16. As per the prosecution case, the informant (PW-1) was known to accused Bhola alias Pramod, Santosh and Shrichandra. The daughter of the informant prior to 3 months of the alleged occurrence was living with her uncle Shyamlal at Meerut. Shyamlal informed that informant's daughter used to talk on phone with accused Bhola alias Pramod; Informant thereafter made complaint to the father of accused Bhola alias Pramod namely, Shrichandra that his son is harassing his daughter on phone. On the aforesaid complaint, Shrichandra and both his sons namely Bhola alias Pramod and Santosh started abusing and ran towards the informant for beating him. Thereafter on 2 November, 2014, Shyamlal informed Ramcharan - informant that his daughter went to the school to pick up the children however has not come back. Report about the aforesaid incident was lodged at Police Station - Sisolar, District Hamirpur. On 8 November, 2014, daughter/Victim informed Ramcharan that she was at Kanpur; Informant went to the railway station Maudaha; Daughter of the informant was found at railway station - Maudaha; she informed that on 2 November, 2014 when she went to bring children from the school then accused Bhola alias Pramod, Santosh, Shrichandra and Ramsewak met her with four wheel vehicle and forcefully took in the aforesaid vehicle and locked her in the room; Ramsewak and Shrichandra went back; In the room Bhola alias Pramod and Santosh forcefully raped the victim and kept her in the aforesaid room for 5 to 6 days; thereafter, the victim on getting the chance ran away and reached railway station Maudaha. Informant met his daughter at railway station. The daughter of the informant was aged about 15 years at the time of occurrence.
17. The prosecution further produced Prosecution Witness No. 2 - victim who has stated that she knew Santosh, Bhola alias Pramod, Ramsewak and Shrichandra who belong to her village; she was going along with her uncle Shyamlal by train to Meerut; on the same train accused Santosh and Bhola alias Pramod were following her and reached Meerut. Accused for two days was harassing the victim; on 2 November, 2014, victim went to pick up children from school; near the school, Santosh, Bhola alias Pramod, Ramsewak and Shrichandra were present along with four wheel vehicle namely, Marshall; after abusing victim forcefully took her in the aforesaid vehicle; Shrichandra opened the door of the vehicle and Ramsewak, Santosh and Bhola alias Pramod caught the victim. When victim shouted they gagged the mouth of the victim. They took the victim to Ghaziabad; locked her in one room; Bhola alias Pramod and Santosh were also staying there. Ramsewak and Shrichandra went back; at night Bhola alias Pramod used to come intoxicated in her room and Santosh used to stay outside the room; Bhola alias Pramod raped the victim; Bhola alias Pramod raped victim for five days; on 7 November, 2014 in the afternoon Santosh raped the victim; thereafter they took the victim to the railway station Ghaziabad and went to Kanpur; when Santosh and Bhola alias Pramod were having tea, she boarded the passenger train and came to railway station - Maudaha. Thereafter, she called her father who took her home. She has stated that her date of birth is 20 April, 1999; she has also stated that she had given statement to the Investigating Officer and she was also medically examined. She has also testified that her statement under Section 164 Cr.P.C. was recorded before the Magistrate. The victim has proved the statement made before the Magistrate under Section 164 Cr.P.C and the same was marked as Exhibit Ka-2.
18. The prosecution has further examined Constable Himanshu Gautam as Prosecution Witness No. 3 who has stated that on 9 November, 2014, he was posted at Police Station Sisolar on the post of Constable Moharir. On the said date on the report lodged by the informant he had lodged the First Information Report against Bhola alias Pramod and others under Sections 363 and 366 of the Indian Penal Code. The aforesaid witness has proved the First Information Report and the General Diary and the same are marked as Exhibits Ka-3 and Ka-4 before the trial court.
19. Prosecution in support of the case has further examined Shri Dhirendra Singh as Prosecution Witness No. 4. The said witness was on the relevant date posted as Principal, Poorv Madhyamik Vidyalaya, Bhamai, District Hamirpur for two years and from 1999 was posted as teacher in the aforesaid institution. He has stated that according to the records of the institution the date of birth of the victim is 20 April, 1999. The admission register with the relevant entry being S.R. No. 3002 was filed before the trial court and was marked as Exhibit Ka - 5.
20. Prosecution has further examined Dr. Smt. Asha Sachan as Prosecution Witness No. 5. She has stated that on 22 November, 2014 she was posted at District Women Hospital, Hamirpur as Medical Officer. She had conducted the medical examination of the victim on the said date; victim had informed her that one neighbourhood boy with another person had forcefully taken her; they took her to Ghaziabad in the room and thereafter committed rape; hymen was ruptured, old and healed. Vaginal Smear was sent for pathological examination. She has proved the medical examination report and the same was marked as Exhibit Ka - 5 before the trial court.
21. The prosecution has further examined retired Inspector Sri Abdul Haleem as Prosecution Witness No. 6. The said witness has stated that on 9 November, 2014 he was posted as Incharge Inspector at Police Station Sisolar. In his presence, on the basis of written application of informant First Information Report was lodged under Sections 363 and 366 IPC. Investigation of the aforesaid crime was entrusted to Sub Inspector Purshottam Narayan Tiwari. The First Information Report was also entered in the General Diary and thereafter abovenamed Sub Inspector was transferred and the investigation was handed over to then Police Station Incharge Bhagwati Prasad Mishra. He has stated that on 22 November, 2014 he had recorded the statement of the victim under Section 161 Cr.P.C. On 28 November, 2014 he has recorded the statement of the accused Bhola alias Pramod in the Case Diary. During investigation Section 376D IPC and Section 5 (6/6) of the POCSO Act was added; on 4 December, 2014 statement of the victim under Section 164 Cr.P.C. was recorded. On 16 December, 2014 statement of Smt. Sushila was recorded.
22. Thereafter prosecution has testified retired Inspector Nand Lal Bharti as Prosecution Witness No. 7. The said witness has stated that on 27 January, 2015 he was posted as Prabhari Nirikshak at the Police Station and he had taken the charge of the investigation of Case Crime No. 403 of 2014; on 5 February, 2015, the accused was taken on remand; on 21 February, 2015 after reaching Meerut on the pointing out of Shyamlal, who is the brother-in-law of the informant, the site map was prepared of the place of occurrence and the same was marked as Exhibit Ka-6. On 22 February, 2015 charge sheet was filed against accused Bhola alias Pramod under Sections 363, 366, 376 (2) IPC and 5(1/6) and 5/11 POCSO Act and the same was marked as Exhibit Ka-7.
23. Further the prosecution has examined Prabhari Nirikshak Bhagwati Prasad Mishra as Prosecution Witness No. 8. The said witness has stated that when he was posted on 22 November, 2014 at the concerned police station, the informant - Ramcharan came with his daughter to the police station. He had prepared the recovery memo of the victim and the same was marked as Exhibit Ka-7A.
24. As per the prosecution case, the accused persons have abducted the victim while she was going to school to pick up the children and thereafter committed rape. The accused Bhola alias Pramod is prosecuted under Sections 363, 366 and 376(D) IPC and Section 6 of the POCSO Act. Similarly, accused Santosh is prosecuted under Sections 363, 366, 342, 504 and 376D IPC and Section 6 of the POCSO Act. Further, Shrichandra and Ramsewak were prosecuted under Sections 363, 366, 342, 504, 376D and 120B IPC and Section 6 of the POCSO Act.
25. Objection was raised on behalf of the accused before trial court that as per FIR, the occurrence took place on 2 November, 2014 and FIR has been registered on 9 November, 2014 after the coming back of the victim and prosecution has failed to give any reason regarding delay in lodging of the FIR. Accused had also raised objection that the recovery of the victim on 22 November, 2014 is false and concocted.
26. In this respect, it is to be noted that as per the FIR (Exhibit Ka-3) the informant has stated that his daughter use to talk to accused Bhola alias Pramod on mobile phone; his daughter/victim was staying with her uncle Shyamlal at Meerut; on 2 November, 2014, the accused has taken away her daughter and the informant was under fear that some untoward incident may happen with his daughter. The FIR was lodged on 9 November, 2014 at Entry No. 13/14 at 20:00 hours at the G.D. and the same was marked as Exhibit Ka-4. From the aforesaid, it is evident that the First Information Report was given on 9 November, 2014 and on the aforesaid basis, the Chik FIR was lodged being Exhibit Ka-3 at 14:20 hours. The First Information Report was lodged after 7 days of the occurrence and no reason has been given by the prosecution for the delay. PW-1 - informant has testified before the Court in which he has stated that on 2 November, 2014 his brother-in-law Shyamlal had informed that his daughter went to the school to pick up the children, however, she had not come back. On 3 November, 2014 he had given the information to the Police Station Sisolar by means of an application which is Exhibit Ka-1. The Chik FIR being Exhibit Ka-3. The report was lodged on 9 November, 2014 and the G.D. Entry No. 13/14 at 20:00 hours was lodged. The Prosecution Witness No. 3 - Constable Himanshu Gautam has also in his statement before the trial court has stated that the informant - Ramcharan on 9 November, 2014 had written complaint and on the aforesaid basis Chik FIR being Exhibit Ka-3 was lodged and the GD Entry being Exhibit Ka-4 was prepared. The Prosecution Witness No. 1 in his statement has stated that on 8 November, 2014 he had received information from his daughter that she is at Kanpur and when he had reached the railway station Maudaha at 11:00 hours and thereafter on the next date he had taken the daughter to the police station and after lodging the report he had brought his daughter back. He has also stated that he had brought his daughter to his house on 8 November, 2014. On the aforesaid basis, it is evident that the PW-1 - informant went to the police station along with his daughter and lodged the FIR on 9 November, 2014. PW-1 has further stated that before coming to the police station his daughter had informed all the facts to the informant and the report was lodged on the basis of the information received from his daughter. He has also stated that the Inspector Incharge had enquired from the informant and the victim prior to lodging of the FIR and he had signed the FIR after reading the same. He has also stated that the place where the application was prepared his daughter and his brother-in-law were also present. On the aforesaid basis, the trial court came to the conclusion that the FIR was lodged after the victim was recovered and after receiving the information from the victim about the alleged incident and on account of the aforesaid fact in respect of the alleged occurrence on 2 November, 2014 the FIR was lodged on 9 November, 2014 without explaining the delay. The victim - PW-2 was also examined before the trial court who has stated that after reaching the home she had given all information to her father and mother and on the information provided by her, the informant had lodged the FIR on 9 November, 2014 at Police Station Sisolar; on the aforesaid date she did not went to the police station. On the basis of the statement of the victim, it is evident that the FIR was lodged after she had come back to her home and on the information received from the victim on 9 November, 2014 the FIR was lodged.
27. The Investigating Officer has also prepared the recovery memo showing recovery of the victim on 22 November, 2014 despite the fact that the informant who is the father of the victim and the victim herself has stated that she has reached the house on 8 November, 2014. On the aforesaid basis, the trial court came to the conclusion that the recovery of the victim on 22 November, 2014 is suspicious and cannot be relied upon. The trial court has also recorded that the recovery memo and the statement of the PW-1 and PW-2 are contrary and if the recovery memo is treated to be correct then the statement of PW-1 and PW-2 that the victim was recovered on 8 November, 2014 was false.
28. The prosecution has further examined Inspector Nandlal Bharti (PW-7) who has stated that on 22 November, 2014 he had reached Meerut and had contacted Shyamlal who is brother-in-law of the informant - Ramcharan. He has also stated that on the pointing out of the Shyamlal, investigating Officer reached the place of occurrence and has prepared the site plan which is Exhibit Ka-6. The aforesaid witness has further stated that he had not prepared the site plan on the pointing out of the victim or the informant and has stated that he had tried to take the victim and his father to the place of occurrence but they did not come to the place of occurrence. In this respect, it is to be noted that Shyamlal is not the eye witness of the alleged occurrence and the site plan was prepared in the presence of Shyamlal and as per the description given by the Shyamlal. The Prosecution Witness No. 1 in his statement before the trial court has stated that the police had never taken him or his daughter to Meerut. He has also stated that PW-2 had not shown the place of occurrence to the Investigating Officer. The aforesaid witness has further stated that the Investigating Officer never came to take the witness to Meerut. On the aforesaid basis, it is evident that the site plan that has been prepared was prepared on the basis of information and pointing out of the Shyamlal who is not the witness of the alleged occurrence and the site plan was not prepared on the pointing out of the victim. The victim never went to the Meerut along with the Investigating Officer. The Investigating Officer PW-6 Abdul Haleem in his statement has stated that when he asked the informant to come to Meerut for inspection of the place of occurrence then he replied that he will talk to his lawyer and will respond. The actual place of occurrence could have only be identified by the victim. Further the site plan prepared does not disclose the place at Ghaziabad where the alleged rape is said to have been committed nor the prosecution has led any evidence to show the place of occurrence of rape.
29. Prosecution Witness No. 1 - informant has stated that the accused Bhola alias Pramod use to talk on phone with her daughter and the aforesaid fact was informed by Shyamlal and thereafter he went to the house of the accused Bhola alias Pramod and met with his father Shrichandra. Shrichandra and his two sons, namely, Bhola alias Pramod and Santosh started abusing and beating. Thereafter, his brother-in-law Shyamlal on 2 November, 2014 informed that his daughter went to the school to pick up the children, however, she did not come back and on the aforesaid basis the FIR was lodged. The aforesaid witness has further stated that on 8 November, 2014 daughter/victim had called him and informed that she was in Kanpur. Victim was recovered at Railway Station - Maudaha. The said witness has further stated that after recovery of the daughter, she had informed about the alleged occurrence. On the aforesaid basis, the Prosecution Witness No. 1 came to know about the alleged incident. The Prosecution Witness No. 1 is not the eyewitness of the alleged occurrence. The said witness has given statement on the basis of the information given by Shyamlal and victim. In the cross-examination the said witness has stated that prior to the information received from his daughter, no person had informed him about the alleged occurrence. The said witness has further stated that his brother-in-law - Shayamlal did not come to his house and that, as per as informant, his daughter did not have any mobile phone prior to alleged incident. The mobile number being 80XXXXX493 was written in the FIR on the basis of the information given by Shyamlal. It is to be noted that the aforesaid witness on one hand has stated that his brother-in-law Shyamlal did not visit his house and on the other hand he has stated that he had given the mobile number in the FIR on the basis of the information given by Shyamlal. It is further to be noted that the witness has further stated that his daughter did not have any phone prior to the alleged incident. The witness has further testified that he does not keep any mobile phone and has not given any mobile number of his daughter in the FIR. He has further stated that the mobile number given in the FIR has not been given by the informant but the same has been inserted by some other person or his brother-in-law.
30. PW-1 - informant has stated that he does not keep mobile phone. The victim in her statement has stated that her father/informant has mobile phone bearing mobile number 96XXXXX314. On the aforesaid basis, it is not known as to why the Prosecution Witness No. 1 is hiding his mobile number.
31. The Prosecution Witness No. 1 further in his statement has stated that the victim did not accompany him to the police station when the FIR was lodged. He has further stated that he never took the victim to the police station; Shyamlal on 2 November, 2014 on phone informed that his daughter went to the school to pick up the children, however, has not returned; on 3 November, 2014, the informant informed the Police Station - Sisolar and the report was marked as Exhibit Ka-1 before the trial court; on the other hand, the Prosecution Witness No. 1 in cross-examination has stated that after the recovery of the victim on 8 November, 2014, the FIR was lodged on the basis of the information received from the victim. The informant has made contradictory statement that the FIR was lodged on 3 November, 2014 on the information received from Shyamlal whereas on the other hand he has stated that the FIR was lodged after the victim was recovered on 8 November, 2014 and on the basis of information received from the victim, the FIR was lodged on 9 November, 2014.
32. The Prosecution Witness No. 1 has further stated that on 8 November, 2014, victim was recovered and thereafter the FIR was lodged, however, the recovery memo in respect of the victim being Exhibit Ka-7A which is prepared by Prosecution Witness No. 8 shows that the victim was brought to the police station by the informant on 22 November, 2014. Thereafter, the statement of the victim under Sections 161 and 164 Cr.P.C. and medical examination was effected. Victim was recovered on 8 November, 2014 and the FIR was lodged on 9 November, 2014, however, the victim was brought to the Police Station on 22 November, 2014. There is no explanation offered by the prosecution with regard to the period from 8 November, 2014 to 22 November, 2014 during which the victim was not produced before the Police/Investigating Officer. On the aforesaid basis, the trial court came to the conclusion that the statement of the Prosecution Witness No. 1 are not reliable and trustworthy.
33. In the present case, the only eyewitness to the alleged occurrence is the victim and on the basis of the statement of the victim, it is to be seen whether the offence alleged is made out against the accused person. It is trite of law that conviction can be founded on the sole testimony of the prosecutrix where the statement of the prosecutrix inspires confidence and is accepted by the court. The conviction can be founded on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which are necessary for the court for corroboration of the statement of the prosecutrix. The corroboration is required as a matter of prudence under the given facts and circumstances of the case. The court while acquitting the accused on the benefit of doubt should be cautious to see that the doubt be a reasonable doubt and it should not reverse the finding on the basis of irrelevant circumstances or mere technicalities.
34. On the aforesaid basis, it is first to be seen whether the statement of the prosecutrix is believable. It is to be noted that the FIR was lodged on 9 November, 2014 at 4:20 pm. The informant was present at the police station at the time of lodging of the FIR and the victim was not present along with the informant. The victim was said to have been recovered on 8 November, 2014. The victim in her statement has stated that she had reached Maudaha at 11:30 AM and had made a phone call to the informant (father of the victim) and thereafter on reaching the home narrated the incident to the informant and her mother. On the basis of the information received from the victim, the FIR was lodged on 9 November, 2014. On the aforesaid date, the victim did not accompany the informant to the police station. The medical examination of the victim was held 10 to 15 days after the FIR was lodged. The statement of the victim before the Chief Judicial Magistrate under Section 164 Cr.P.C. was held on 4 December, 2014. As per the prosecution case, the informant lodged the FIR on 9 November, 2014 after the victim was recovered on 8 November, 2014 with the allegation that on 2 November, 2014, the accused Bhola alias Pramod has enticed his daughter. When the victim was recovered on 8 November, 2014 thereafter the FIR was lodged by the informant after receiving information from the victim. FIR was lodged on 9 November, 2014, however, despite the fact that the details of the alleged occurrence were in the knowledge of the informant on the basis of the information received from the victim. Informant in the FIR did not submitted any request for search of the victim. Further, as per the recovery memo being Exhibit Ka-7, it is evident that on 22 November, 2014, victim was brought by the informant to the police station and on the basis of the aforesaid, recovery memo was prepared by the Investigating Officer. The prosecution has failed to explain the delay as the victim was recovered on 8 November, 2014 then why she was produced before the Investigating Officer on 22 November, 2014 and why the aforesaid fact was not disclosed to the Investigating Officer. The trial court on the aforesaid basis came to the conclusion that the informant is trying to hide facts and have not brought on record all the facts before the court.
35. As per the FIR, the accused used to call on the mobile number of the victim. The first information report was lodged by the father of the victim. The victim in her statement before the trial court has stated that she did not had any mobile phone at the time of alleged occurrence. She has also stated that when she was at Meerut at her uncle's house she did not personally had any mobile phone. She has also stated that she did not remember the number of the mobile phone which was at the house at Meerut which was being used by all the family members. The Investigating Officer on the basis of the mobile number stated in the FIR has taken call details of the mobile number. The victim is denying having the mobile number as stated in the FIR which is indicative of the fact that the victim is hiding the truth from the court despite the fact that there is material indicating the call details of the mobile number.
36. The prosecution case as per the FIR is that the victim was residing at my right along with her uncle. The accused used to call the victim from mobile number 737XXXXX55 on the mobile number of the victim 805XXXXX93. Shyamlal informed that the victim was talking on phone to the accused. Thereafter, the informant went to the father of the accused asking him to instruct the accused to desist from talking with the victim. In this respect the call details of the victim are to be noted which are detailed in trial court judgment. The details of the call are as under :
"दिनांक 03.07.2014 को अभियुक्त द्वारा पीडिता को दो बार काल किया गया। दिनांक 03.07.2014 को पीड़िता द्वारा अभियुक्त को एक बार काल किया गया। दिनांक 03.07.2014 को पुनः अभियुक्त द्वारा पीडिता को एक बार काल किया गया। दिनांक 04.07.2014 को अभियुक्त द्वारा पीड़िता को सात बार काल किया गया। दिनांक 05.07.2014 को अभियुक्त द्वारा पीड़िता को तीन बार काल किया गया। दिनांक 06.07.2014 को अभियुक्त द्वारा पीड़िता को दो बार काल किया गया। दिनांक 07.07.2014 को अभियुक्त द्वारा पीडिता को आठ बार काल किया गया। दिनांक 08.07.2014 को अभियुक्त द्वारा पीडिता को पांच बार काल किया गया। दिनांक 09.07.2014 को अभियुक्त द्वारा पीड़िता को पांच बार काल किया गया। दिनांक 10.07.2014 को अभियुक्त द्वारा पीडि़ता को सात बार काल किया गया। दिनांक 11.07.2014 को अभियुक्त द्वारा पीड़िता को दस बार काल किया गया। दिनांक 12.07.2014 को अभियुक्त द्वारा पीडिता को तीन बार काल किया गया। दिनांक 13.07.2014 को अभियुक्त द्वारा पीडिता को दो बार काल किया गया। दिनांक 14.07.2014 को अभियुक्त द्वारा पीडिता को ग्यारह बार काल किया गया। दिनांक 15.07.2014 को अभियुक्त द्वारा पीडिता को छः बार काल किया गया। दिनांक 17.07.2014 को अभियुक्त द्वारा पीडिता को चौदह बार काल किया गया। दिनांक 18.07.2014 को अभियुक्त द्वारा पीडिता को सात बार काल किया गया। दिनांक 19.07.2014 को अभियुक्त द्वारा पीडिता को दस बार काल किया गया। दिनांक 20.07.2014 को अभियुक्त द्वारा पीडिता को बारह बार काल किया गया। दिनांक 21.07.2014 को अभियुक्त द्वारा पीडिता को बारह बार काल किया गया। दिनांक 22.07.2014 को अभियुक्त द्वारा पीडिता को चार बार काल किया गया। दिनांक 23.07.2014 को अभियुक्त द्वारा पीडिता को चौबीस बार काल किया गया। दिनांक 24.07.2014 को अभियुक्त द्वारा पीडिता को पांच बार काल किया गया। दिनांक 25.07.2014 को अभियुक्त द्वारा पीडिता को तीन बार काल किये गये है। दिनांक 25.07.2014 को पीडिता द्वारा अभियुक्त को एक बार काल किया गया। दिनांक 25.07.2014 को पनः अभियुक्त द्वारा पीडिता को एक बार काल किया गया। दिनांक 26.07.2014 को पीडिता द्वारा अभियुक्त को एक बार काल किया गया। दिनांक 27.07.2014 को पीडिता द्वारा अभियुक्त को छः बार काल किया गया। दिनांक 28.07.2014 को अभियुक्त द्वारा पीडिता को छः बार काल किया गया। दिनांक 29.07.2014 को पीडिता द्वारा अभियुक्त को पांच बार काल किया गया। दिनांक 30.07.2014 को पीडिता द्वारा अभियुक्त को आठ बार काल किया गया। दिनांक 31.07.2014 को पीडिता द्वारा अभियुक्त को सात बार काल किया गया। दिनांक 31.07.2014 को अभियुक्त द्वारा पीडिता को एक बार काल किया गया। दिनांक 31.07.2014 से दि० 10.11.2014 पीडिता के इस मोबाईल पर कोई काल नही आई है , न ही की गयी है। जिससे स्पष्ट है कि दिनांक 31.07.2014 से 10.11.2014 तक पीडिता का मोबाईल स्वीच आफ कर दिया गया है।"
37. On the basis of aforesaid call details, it is evident that between the victim and the accused there were talks going on for a substantial period of time. In case the accused was talking to the victim without her consent then the FIR should have been lodged at the earlier point of time. There was a regular communication between the victim and the accused for a substantial period of time is indicative that the victim was taking interest in talking to the accused and the aforesaid fact was not disclosed by the victim before the trial court which creates doubt on the testimony of the victim.
38. The PW-2 (victim) in her statement has stated that on 22 July, 2014 she went to her uncle's home. When she was proceeding for Meerut then accused Santosh and Bhola alias Pramod were also travelling in the same compartment; on reaching Meerut they met on the next date; when she was going to school to bring the children of her uncle, she met the accused; for the first time when she went to Meerut she had seen the Bhola alias Pramod in the train; accused Bhola alias Pramod did not come to the house of the victim at Meerut; on 22 July, 2014, the mobile location of the victim at 6:12 am was at Village Sisolar Ajay Kumar Oamar Gate 259 Tehsil Maudaha Near Hospital Hamirpur and on 22 July, 2014 at 20:59 hours, the mobile location was at Shivnarayan, son of Late Bhairam Singh, Village Post Chichara, Tehsil Sadar, District Hamirpur.
39. On the aforesaid basis, it can be said that the victim on 22 July, 2014 was in Hamirpur and Mahoba area; on 23 July, 2014, the mobile location at 17:48 hours of the victim was at Poorvi Taraus Mahboob Ahmad Gate No. 2762/2, Village Tehsil Maudaha, Near Masjid Hamirpur; on 23 July, 2014 at 19:8 hours, the mobile location of the victim was Patara Abhinath Singh Kushwaha 2759 Patara Ghatampur Kanpur; on 23 July, 2014 at 21:25 hours, mobile location was at Anil Kumar Gupta Sataghar, Tehsil and District Hamirpur; on 24 July, 2014 at 7:40 hours, the mobile location of the victim was at Aligarh and on 24 July, 2014 at 16:57 hours, the mobile location was at Meerut. The victim on 22 July, 2014 was in Hamirpur area and thereafter on 23 July, 2014 was at Ghatampur Kanpur and thereafter at Aligarh and she reached Meerut at 16:57 hours.
40. On the aforesaid basis, the trial court came to the finding that on 22 July, 2014 the victim was not at Meerut whereas she went to Meerut on 23 July, 2014 and reached Meerut on 24 July, 2014. Thereafter, the mobile location of the victim was at Meerut.
41. So far as on 22 July, 2014, mobile location of accused Bhola alias Pramod was at Sisolar Ajay Kumar Oamar, Tehsil Maudaha Near Hospital Hamirpur; on 23 July, 2014 at 8:51 hours, the accused was in the same location. Thereafter on 23 July, 2014 at 21:25 hours, the location of the accused was at Hamirpur. In the intervening period, the accused had made 50 calls and received the same; out of which 24 calls were made to the victim and all the locations were of Maudaha.
42. On the aforesaid basis when the victim on 23 July, 2014 reached Kanpur via Ghatampur, at that point of time, accused Bhola alias Pramod mobile location was at Maudaha. On 24 July, 2014 the victim reached Meerut and at 16:57 hours SMS was received at Meerut. On 24 July, 2014 the location of mobile phone of accused was at Maudaha and thereafter at Banda and further thereafter at Maudaha at 16:54 hours. Further, in the night at 22:30 hours, the mobile location of the accused was at Maudaha. On 25 July, 2014 the mobile location of the accused was at Maudaha; on 26 July, 2014, 27 July, 2014, 28 July, 2014 and 29 July, 2014, the mobile location of all the accused was at Maudaha.
43. On the aforesaid basis, the trial court came to the conclusion that the accused was not travelling with the victim in the train while she was going to Meerut nor the accused went to the Meerut and as such, the statement of the victim that the accused Bhola alias Pramod came to Meerut along with the victim does not corroborate with the call details.
44. The PW-2 (victim) in her statement has stated that on 2 November, 2014, accused met her between the crossing and the school; accused was sitting in his Marshall car; she (victim) did not know who was driving the car; she (victim) first saw Shrichandra who opened the door of the vehicle; when she came near to the vehicle, Shrichandra shouted to catch hold the victim and thereafter Ramsewak, Bhola alias Pramod and Santosh forcefully caught her and forced her into the vehicle; in the vehicle Bhola alias Pramod and Santosh were sitting with the victim and Ramsewak and Shrichandra were sitting at the back of the vehicle; victim stayed at the room in Ghaziabad; thereafter the victim went from Ghaziabad along with Bhola alias Pramod to Kanpur; on 8 November, 2014 between 6 to 7 a.m. she came to Kanpur; she has stated that she came on Auto to the railway station; she has stated that when she was boarding the train she had shouted for help and also desisted forceful boarding of the train, however, she did not received any injury; she has stated that she was kept at Ghaziabad for five days.
45. From perusal of the mobile call details of the victim, it is evident that upto 31 July, 2014 the mobile phone of victim was working and thereafter the mobile phone started working on 10 November, 2014. On the aforesaid basis, the trial court came to the conclusion that from 31 July, 2014 to 10 November, 2014, the mobile phone of the victim was switched off. The location of the mobile phone of the victim on 31 July, 2014 was in Meerut area and on 1 November, 2014 the location of the mobile phone of the accused at 21:11 hours was at Sisolar, Tehsil Maudaha, Near Hosptial Hamirpur; on 2 November, 2014, the accused made six calls and received the same and mobile location of the call of the accused was at Sisolar.
46. On the aforesaid basis, the trial court came to the conclusion that the time which the victim alleges that the accused forcefully took her into the vehicle and took her to Ghaziabad, at that point of time, the mobile phone location of the accused was at Kanpur and it is not possible that the accused reached to Meerut on 2 November, 2014 and as such the fact that accused Bhola alias Pramod took the victim forcefully in the vehicle from Meerut is against the call details. From 4 November, 2014 to 7 November, 2014, the mobile phone location of the accused was at Delhi and on 8 November, 2014 at 20:7 hours, the mobile phone location of the accused was at Kanpur and on the aforesaid basis, the trial court came to the conclusion that the narration of events by the victim does not match with the call details and the presence of the accused at the place of occurrence has not been proved by the prosecution.
47. It is further been noted that the victim was medically examined on 22 November, 2014 at District Women Hospital by Dr. Asha Sachan (PW-5). The aforesaid witness has duly proved the medical examination report dated 22 November, 2014. The witness has testified that the victim had informed the aforesaid witness that one neighbourhood boy and others had abducted her and has taken her to Ghaziabad where they have committed rape. The aforesaid witness has stated that the hymen was ruptured, old and healed. The said witness has proved the medical examination report as Exhibit Ka-5A. No external injury was found on the body of the victim during medical examination nor there was any bleeding. The said witness has testified that the victim has not given the name of the accused person. The case of the prosecution is to the effect that the victim was forcefully abducted and thereafter against her consent and forcefully raped. However, the medical evidence does not support the prosecution case.
48. On the aforesaid basis, the trial court came to the conclusion that the victim has not disclose the complete facts and have hidden the actual facts from the court and as such, the statement of the victim is not reliable.
49. Insofar as the allegation with regard to rape of victim is concerned, the victim in her statement has stated that she was taken to Ghaziabad in Marshall vehicle and was kept in one room where the accused Bhola alias Pramod had committed rape. She has stated that the accused use to bring food for victim in the night and use to beat her. She has stated that she did not take bath for six days and use to attend the natural call in the room. She has also stated that she did not shout for help as the accused Bhola alias Pramod use to threaten her. The statement of the victim is not believable as when the accused forcefully asked the victim to have food then there was no occasion that the victim could have been left without food. On the basis of the statement of the victim alone, it cannot be said that the victim was subjected to rape and the prosecution has failed to prove its case beyond reasonable doubt.
50. Insofar as the other accused persons are concerned, in the FIR only the name of the Bhola alias Pramod was given as the person who has taken away the victim. However, the victim was produced before the court. She has stated that the name of brother of main accused, Santosh, father Shrichandra and Ramsewak. When the statement of the victim in relation to the main accused Bhola alias Pramod is doubtful then it is not open that the same evidence be considered for prosecution of the other accused persons.
51. On the basis of the aforesaid, the trial court came to the conclusion that the prosecution has failed to prove the fact that when the victim was going to Meerut then the accused Bhola alias Pramod and Santosh also went to Meerut along with the victim.
52. The prosecution has also failed to prove that the accused forcefully took the victim in the Marshall vehicle and that she was taken to Ghaziabad by the accused persons. The prosecution has also failed to prove that the victim was subjected to rape. The victim met her father/informant on 8 November, 2014. However, as per the recovery memo dated 22 November, 2014, the victim was brought to the Police Station on 22 November, 2014 and there is no explanation as to why the victim was not produced before the Investigating Officer on 9 November, 2014. There is no evidence with regard to any abuse being made by the accused persons. On the aforesaid basis, the trial court acquitted the accused persons for offence under Sections 363, 366, 376 D, 342 and 504 IPC and Section 6 of the POCSO Act.
53. Considering the overall circumstances and submission of learned A.G.A. and after going through the evidence and lower court record, we are unable to persuade ourselves in taking a different opinion from that of trial court. The trial court was fully justified in acquitting the accused-respondent.
54. Learned AGA failed to point out any illegality, infirmity or perversity in the judgment of the trial court.
55. The leave to appeal application is, accordingly, rejected.
56. The appeal, in consequence, stands dismissed.
57. Let the lower court record be transmitted back to court below along with a copy of this order.
Order Date :- 7.3.2022
VMA
(Vikram D. Chauhan, J.) (Suneet Kumar, J.)