Allahabad High Court
Dileep Verma vs State Of U.P. on 31 May, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 27 Case :- JAIL APPEAL No. - 440 of 2016 Appellant :- Dileep Verma Respondent :- State Of U.P. Counsel for Appellant :- From Jail, P.S. Pundir (Ac) Counsel for Respondent :- G.A. Hon'ble Mrs. Ranjana Pandya,J.
1. This appeal has been sent from jail by the accused-appellant Dileep Verma challenging the judgment and order dated 01.10.2015 passed by the learned Additional District & Sessions Judge, Court No. 1, Ballia in Sessions Trial No. 96 of 2014 (State of U.P. vs Dileep Verma) arising out of Case Crime No. 346 of 2014, under Sections 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, Police Station- Sahatwar, District- Ballia, whereby the accused-appellant Dileep Verma has been convicted and sentenced to five years' rigorous imprisonment under Section 363 IPC; five years' rigorous imprisonment under Section 366 IPC; ten years' rigorous imprisonment under Section 376 IPC and ten years' rigorous imprisonment under Section 4 of Protection of Children from Sexual Offences Act. Consolidated fine of Rs. 20,000/- has been imposed on the accused-appellant with default stipulation.
2. In brief the case of the prosecution as set up in the first information report lodged by Smt. Reshami Devi w/o Late Shiv Bachan Verma at Police Station Sahatwar, District- Ballia is that Dileep Verma s/o Ram Kishun Verma, resident of village Chhotaki Seriya, Police Station Bansdeeh Kotwali, District Ballia, who claimed himself to be conjurer used to come to her house for conjuring. He was aged about 35 years. On 05.06.2014, when she had gone to Ballia in connection with her treatment and his daughter, the victim aged about 14 years was alone in the house, then Dileep Verma, the accused enticed her away. Her daughter was having mobile number 9839341137. She along with her family members made hectic search, but whereabouts of the victim could not be known.
3. On the basis of aforesaid report, Ext.Ka-1, chik FIR was registered, Ext. Ka-4, which was entered in G.D. Ext. Ka-6 and case was registered. After registration of the case, the investigation of the case was entrusted to S.I. Ram Phool Yadav, PW-4. He copied the chik FIR and entered the same in the case diary. Thereafter, he recorded the statement of chik scriber Vinod Kumar Pradhan and informant Smt. Reshmi Devi and entered the same in the case diary. On the pointing out of the informant, he inspected the spot and prepared the site plan, which was proved as Ext.Ka-3. High School marksheet of the victim was made available to him by the informant, according to which her date of birth is 18.09.2002. After the recovery of the victim, she was sent for medical examination on 13.09.2014. On 15.09.2014, the statement of the victim was got recorded under Section 164 Cr.P.C., which was entered into the case diary on the order of the court. After completing the investigation, he submitted the charge sheet against the accused-appellant under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, which was proved as Ext. Ka-4.
4. To bring home the guilt of the appellant, the prosecution has examined as many as five witnesses. PW-1 is Smt. Reshmi Devi, the informant and mother of the victim. PW-2 is the victim of the case. PW-3 is Sanjay Verma, the brother of the victim. PW-4 Ram Phool Yadav is the Investigating Officer of the case. PW-5 is Dr. Jyotsana, who conducted the medical examination of the victim.
5. PW-1 is Smt. Reshmi Devi, the informant and the mother of the victim. She has reiterated the version given in the FIR. She further deposed that the accused took the victim to Kolkata and committed rape on her. Her daughter was minor aged about 14 years. She was recovered after three months. After that the victim told the whole incident to her.
6. PW-2 is the victim of the case. She stated that on 05.06.2014, she was alone in the house. Her mother had gone to the hospital along with her brother and sister-in-law. On that date, the accused-appellant Dileep Verma came to her house and inquired about her mother and sister-in-law. On being told that they have gone to Ballia hospital. He said to her that let us come to meet them and took her to Kolkata. At Kolkata, she was confined in a room and he committed rape on her. At Kolkata, the accused ran away after leaving her. She came out and informed her brother. Her brother informed her maternal uncle, who came and took her to his room. When she came back Ballia, she was medically examined and her statement under Section 164 Cr.P.C. was recorded, which she proved as Ext. Ka-2.
7. PW-3 is Sanjay Verma, the brother of the victim. He deposed that on the date of the incident i.e. 05.06.2014, he along with his sister-in-law and mother had gone to Sadar Hospital, Ballia in connection with treatment. His younger sister, the victim aged about 12 years was alone in the house, who was enticed away by the accused-appellant and he took her to Kolkata.
8. The evidence of PW-4, S.I., Ram Phool Yadav has already been discussed above.
9. PW-5 is Dr. Jyotsana, who has medically examined the victim. She deposed that on 10.09.2014, she was posted at District Women Hospital, Ballia as Medical Officer. On that date, the victim was brought by lady constable, Sunita Yadav. She has medically examined the victim. There was no marks of injury on the body of the victim. She proved the medical report as Ext. Ka-7. For ascertaining the age of the victim, she advised X-Ray of her right wrist and elbow. Ultrasound of pelvic was also advised. She also prepared the slides for DNA test. After receipt of all the reports, she prepared the supplementary report, which was proved as Ext. Ka-8. As per the supplementary report, examination of urine was negative. No sperm was found. As per X-Ray report, the age of the victim was opined about 18 years.
10. After the close of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he has denied the occurrence and claimed to be tried.
11. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para-1 of the judgement.
12. Feeling aggrieved, the accused has come up in the present appeal.
13. Heard Shri P.S. Pundir, learned Amicus Curiae appearing on behalf of the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.
14. It has been contended on behalf of the appellant that there is an inordinate delay in lodging the F.I.R., inasmuch as per the chik report, Exhibit Ka-5, occurrence took place on 05.06.2014, whereas the report was lodged on 24.06.2014 at about 13:45 hours. The police station being 4 kms. away from the place of occurrence. Thus, there is delay of about 19 days in lodging the F.I.R. No reason has been assigned for the delay. Hence, it causes a heavy dent in the prosecution case.
15. Perusal of the written report shows that the informant, who is the mother of the victim, has stated that the victim was missing from her house from 15.06.2014. The informant and her family members traced the victim amongst the relatives, but she could not be traced. The victim was carrying Mobile No. 9838341137. It has also been stated that she was taken away by Dileep Verma, the accused whose Mobile No. was 07408571872. There is no whisper in the F.I.R., as to why the F.I.R. was lodged for an inordinate delay except that the victim was being traced amongst the family members. P.W. 1, Smt. Reshmi Devi has also stated that on 05.06.2014 she had gone to the hospital for her treatment. In her absence, the accused enticed away her daughter, the victim. As per the informant after three months the victim was recovered, who narrated the whole incident to her and after that she came to know everything.
16. The informant has further stated that she assured herself about the truthfulness of the matter, she dictated her report to one man, put down her signatures on the report and submitted it at the police station, where case was registered. Although, the F.I.R., does not bear the name of the person, who scribed it, but the son of the informant Sanjay Verma, P.W. 3 has stated that his elder brother went to the police station to lodge the missing report. By that time his mother had returned from the hospital. The elder brother of this witness dictated the report to the Pradhan. The Pradhan also signed the report. This witness also signed the report. Thus, as per this witness, this report was lodged after 30 days, when his mother returned home from the hospital, as this witness has stated that his mother came back from the hospital after a month.
17. This alleged report has neither seen the light of the day inasmuch as it is neither on record nor has been produced by the prosecution. Infact a report dated 24.06.2014 prior in time is on record, which as per the prosecution version, is prior to the recovery and return of the victim to her house. Thus, I presume that there is actually no missing report on the record.
18. In (2015) 7 SCC Page 272: Mohd. Ali @ Guddu Vs. State of Uttar Pradesh, adverting to the issue of lodging of the first information report, the Hon'ble Apex Court has held that "As is demonstrated, the victim missed from the house on 22.11.1996 but the mother lodged the FIR on 3.12.1996 almost after expiry of eleven days alleging the factum of kidnapping by the accused persons, namely, Ali Waris and Md. Ali @ Guddu. It is interesting to note that the mother, had alleged that Ali Waris had left the girl at her door steps. In such a circumstance, if nothing else, the PW-2, the mother, who is expected to have necessitous concern, could have gone to the police station to lodge a missing report which could have prompted the investigation officer to act. It baffles the commonsense that the mother after searching in the neighbourhood as well as amongst the relatives still, for some unfathomable reason that defeats the basic human prudence approached the police station quite belatedly. It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle."
19. Similarly, in (2013) 3 SCC Page 791: Rajesh Patel Vs. State of Jharkhand, the Hon'ble Apex Court has held that inordinate delay of 11 days in lodging the F.I.R. against the appellant is fatal to the prosecution case. This vital aspect regarding an inordinate delay in lodging the F.I.R., not only makes the prosecution case improbable to accept, but makes the whole case untenable, which cannot be accepted.
20. In the cases of sexual offences, there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact as has been held by the Hon'ble Apex Court in AIR 2007 SC Page 155: Ramdas & Others Vs. State of Maharashtra.
21. Thus, this inordinate delay of about 19 days is fatal for the prosecution case and not only causes a big dent in the prosecution case, but makes the complete prosecution case doubtful and unreliable.
22. As regards the age of the victim is concerned, learned A.G.A. has submitted that the victim was minor on the date of occurrence. Hence, the question of her consent if any does not arise at all. He has placed reliance on a paper numbered as 8-Kha. Even the learned lower court has based its judgement on this photocopy bearing paper No. 8-Kha and has virtually convicted the accused-appellant on the basis of this paper, which is a photocopy and by no stretch of imagination could be admitted in evidence or could be looked into. The age of the victim has to be determined as per the provisions laid down in Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, which reads as follows :
"12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
23. In (2010) 3 Supreme Court Cases (Cri) 1081: Satpal Singh Vs. State of Haryana, the Hon'ble Apex Court while dealing with the admissibility of a probative value of documents has observed as under :
"Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Satpal Singh vs State Of Haryana on 28 July, 2010 Indian Kanoon - Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
23. There may be conflicting entries in the official document and in such a situation, the entry made at a later stage has to be accepted and relied upon. (Vide Shri Raja Durga Singh of Solon Vs. Tholu & Ors. AIR 1963 SC 361).
24. While dealing with a similar issue in Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796, this Court held as under:-
"To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
25. A Constitution Bench of this Court, while dealing with a similar issue in Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282, observed as under:-
"The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act."
26. In Vishnu Vs. State of Maharashtra (2006) 1 SCC 283, while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by un- impeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded."
24. According to the aforesaid provisions, the medical evidence could be taken resort to only when the academic report was not available. According to the Rule 12(3)(a)(ii), if the birth certificate from the school first attended is available, then it can be looked into. No doubt, copy of the mark-sheet of class V has been filed, but it appears that the trial court lost sight of the legal position that the document has to be proved before it can be read as an evidence. Although different documents can be looked into otherwise. The I.O., P.W. 4 Ram Phool Yadav, has stated that the informant made him the mark-sheet of class V of the victim available, in which the date of birth of the victim was mentioned to be 18.09.2002, according to which the victim was minor on the date of occurrence. I think that the lower court ignored the provisions of the Indian Evidence Act, 1872.
25. In 2011 (1) SCC (Cri) Page 688: Alamelu & Another Vs. State represented by Inspector of Police, the Hon'ble Apex Court has observed that :
"Date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry, is examined. Even otherwise since this transfer certificate was not accepted, hence it could not read in evidence."
26. Section 35 of the Indian Evidence Act deals with the evidential value or relevancy of a document. The evidential value of the school leaving certificate can only be looked into in certain circumstances. There should be sufficient material on the record to prove that the date of birth was also recorded in the register maintained by the school in terms of the requirement of law as contained in Section 35 of Indian Evidence Act. It has to come in the evidence as to who went to the school to get the date of birth of the victim recorded. The parents who mentioned the date of birth of the victim, who have come-forth before the court, but in the particular case although the mother of the victim has appeared before the court, but she has not stated a word about the date of the birth of the victim. She has only stated that her daughter was minor on the date of the incident. What was the reason for the prosecution in not producing the person who got the date of birth recorded in the school has not been explained by the prosecution. Thus, by no stretch of imagination could the marksheet be relied upon. Thus, the photocopy of the marksheet on record is nothing, but a wasted paper.
27. In the absence of the academic record, as per the rules formulated under Juvenile Justice (Care and Protection of Children) Rules, 2007, the court has to revert back to the medical evidence. The ossification report of the victim marked as Exhibit Ka-7, which was proved by Dr. Jyotsna, P.W. 5. But on the paper itself the lower court did not bother to put down any exhibit number and it just appears that the trial court sat over the matter as a spectator and did not bother to mark the medical report formally. Anyhow as per the medical report, Exhibit Ka-7, the age of the victim was opined to be 18 years. Although taking a margin of two years on either side is not mandatory, but even if that is done, the victim would definitely be above the age of consent i.e. 16 years. Thus, on the basis of all the evidence available on record, the victim is proved to be major on the date of occurrence.
28. As far as the testimony of the victim is concerned, in the case of Ramdas and Others Vs. State of Maharashtra (Supra), it has been held that conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where court is convinced about the truthfulness of the prosecutrix and there exits no circumstances which casts a shadow of doubt over her veracity. As per medical evidence, no external or internal injuries were found on the body of the victim. She was medically examined much after the incident. Obviously, the injuries would not have been found by that time, but the victim has not stated anywhere that she sustained any injuries of any sort. It is true that in rape cases, the accused can be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix, when the entire case is improbable and unlikely to happen as has been held in (2006) 10 SCC Page 92: Sadahiv Ramrao Hadbe Vs. State of Maharashtra.
29. P.W. 1, the mother of the victim was examined, who has stated that her daughter, the victim was taken away in her absence to Kolkata, where she was raped against her wishes by the accused. Her daughter was recovered three months after the incident. She has stated that she used to serve the accused a lot. He used to stay in her house for the whole day and used to have meal. She has further stated that she was admitted in Government Hospital for 14 days, whereas Sanjay Verma, her son with whom she went to the hospital as being P.W. 3 has stated that his mother was admitted in the hospital for a month. Further, she has stated that the victim did not have mobile on the date of occurrence, whereas as per the F.I.R., the victim was having mobile, which was taken away by her at the time of incident. She has stated that the accused himself told her about the incident and the place of incident and further told her that he would return the victim within a day. This conversation took place between Dileep, the accused and her son Sanjay Verma, P.W. 3 does not corroborate this fact, who stated that the victim had telephoned her from Kolkata. The victim was weeping over the phone and told her brother that she was at Kolkata and Dileep, the accused had left her unattended and fled away. Thus, the statement of the mother, PW-1 and his son, PW-3 are contradictory to each other.
30. The star witness of the case is the victim, who has stated that when her mother had gone to the hospital with her brother and sister-in-law, the accused came and asked the victim to accompany him to see her mother and sister-in-law. He took her on the pretext of taking her to Ballia, but he took her to Kolkata. On there she was kept in a small room, where she was raped by the accused. He left her at Kolkata and fled away. She came out and telephoned her brother, who in turn telephoned her maternal uncle, who was living in Kolkata. His maternal uncle came and took the victim to his room and the next day she was made to sit in the train with a lady, who was coming from Ballia. The victim who was missing from his house for the last three months, was taken care of by the family members in this way especially when she was away from her house for three months and she was the victim of rape. This story is not digestible.
31. In cross-examination, the victim has admitted that she knew how to operate her mobile, but she did not know the number of mobile. She has stated that when she went with the accused, she had a mobile, but it was thrown away by the accused-appellant after 2-3 hours, they left. This witness has further stated that the accused came and said that they had to go to Varanasi for the treatment of the mother of the victim. This is a new story incorporated by the victim for the first time before the trial court. If the accused would have enticed her and raped her, there was no reason why the family members of the accused would give her his brother's number, because the victim has stated that she took her brother's number from Dileep's(the accused) sister-in-law (Mami). The victim has clearly stated incorrect facts before the trial court inasmuch as she has stated that "?kVuk ds igys ls eSa fnyhi oekZ dks ugha tkurh gwWaA" Although she has admitted that the accused used to come her house since one month, but he stopped coming to her house after the death of her father. She admitted that when she went out with the accused, she did not raise any alarm nor complained to anybody. A strange thing stated by this witness is reproduced by me as follows :
"esjh efr fnyhi ekj fn;s FksA eq>s dqN ugha le> ik jgh FkhA 20 fnu 1 ekg ij esjh efr Bhd gqbZ Fkh efr ekjus ij eq>s dqN le> ugha ik jgh FkhA"
Thus, this defence taken by the victim to protect her wrong steps makes it clear that the whole prosecution story is unreliable and the statement of the victim is nothing but a bundle of incorrect facts. She has further stated that the brother and sister of the accused told him that Dileep, the accused wanted to sell her. I think that this statement is not digestible.
32. The victim has admitted that since the accused used to work of incantation(>kaM+&Qwd), but her father could not be saved, hence all her family members dispraised with the accused. The victim has gone to the extent of distinguishing the statement given by her to the Magistrate under Section 164 Cr.P.C., in which she has stated that :
"eS eftLVz~sV lkgc dks c;ku ugha nh Fkh vks>k esjs ?kj esjs ls ckr djk;s FksA vxj esjk c;ku esa eftLVz~sV lkgc fy[ks gS rks dkj.k ugha crk ldrhA eSa eftLVz~sV lkgc dks c;ku fn;k Fkk fd cqjs dke dk eryc ifr iRuh dk fj'rk gksrk gSA ifr iRuh ds chp tks dke gksrk gS og eSa dHkh ughsa ns[kh gwWA"
Reference of the statement of the victim recorded under Section 164 Cr.P.C. being Exhibit Ka-2 would be helpful at this stage because the statement of the victim recorded under Section 164 Cr.P.C. and that recorded before the trial court are practically contradictory to each other. She has stated that she lived for 2 days at the house of "Ojha" at Kolkata, when "Ojha" made her conversed by phone with her family members then her maternal uncle (Mama) took her from Kolkata.
33. This statement has also not in consonance with the prosecution story because as per this statement she returned home earlier. But as per the prosecution case she returned home three months after the incident. The brother of the victim is Sanjay Verma, PW-3, who has brought forth completely different version and stated that :
"esjs ekek ghjkyky oekZ dksydrk esa jgrs gSA oks esjh cgu 3 ekg ckn muls feyh mlds ckm esjs ekek esjh cgu dks f'kyk;nk ,Dlizsl Vz~su esa cSBkdj ?kj Hkst fn;k vkSj geyksxks dks Qksu djds crk fn;kA"
Thus, the evidence of the prosecutrix's brother is also far from satisfactory and incapable of offering any corroboration to the evidence of the prosecutrix.
34. In (2014) 1 SCC (Crl) Page 820: Hemraj Vs. State of Haryana, it has been held that :-
"Although the evidence of the prosecution is most vital, but it a duty of the court to scrutinize it carefully because the accused can be convicted on such testimony."
The testimony of the victim is unreliable and unworthy of credence, thus, it would be dangerous to rely upon her testimony.
35. P.W. 4 is I.O. Ram Phool Yadav, who has stated that victim came alongwith her brother to the police station. Thus, the recovery of the victim also became doubtful because as per the statement of the victim and her family members she was recovered at the railway station by the police, whereas as per the statement of the I.O. P.W. 4, the victim came herself with her brother to the police station. The I.O. has admitted that mobile number 07408571872 had been written in different ink in the F.I.R. Some call details were also referred by the I.O., but there is nothing on record to prove the ownership of the mobile or the name of the person in whose name the mobile number was issued.
36. In the statement recorded under Section 313 Cr.P.C., the accused denied the occurrence and stated that he had been falsely implicated due to enmity. The statement of the victim recorded under Section 164 Cr.P.C. and that recorded before the court are contradictory, they do not support each other. Thus, the prosecution has miserably failed to prove the charges framed against the accused-appellant beyond all the reasonable doubt.
37. Thus, on the basis of what has been stated and discussed above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed.
38. Hence, the impugned judgement of conviction and sentence dated 01.10.2015 passed by the learned Additional District & Sessions Judge, Court No. 1, Ballia in Sessions Trial No. 96 of 2014 (State of U.P. vs Dileep Verma), arising out of Case Crime No. 346 of 2014, under Sections 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, Police Station- Sahatwar, District- Ballia is, hereby, set aside.
39. Accordingly, the present appeal is allowed.
40. The appellant is in jail. He shall be released forthwith in this case. However, the provisions of Section 437-A Cr.P.C. shall be complied with.
41. Let a certified copy of this order be sent to the trial court concerned.
Order Date :- 31.5.2016 Sazia/Anurag