Allahabad High Court
Smt. Noor Jahan vs State Of U.P. And 3 Others on 9 March, 2017
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 52 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 50 of 2014 Applicant :- Smt. Noor Jahan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Zafar Abbas Counsel for Opposite Party :- Govt. Advocate,Awadh Behari Singh,Manish Singh Connected with Case :- GOVERNMENT APPEAL No. - 1149 of 2014 Appellant :- State Of U.P. Respondent :- Anis And 2 Others Counsel for Appellant :- G.A. Hon'ble Harsh Kumar,J.
Heard Shri Zafar Abbas, learned counsel for the applicant and Shri Awadh Behari Singh, learned counsel for the opposite party in Criminal Appeal/Criminal Misc. Application u/s 372 Cr.P.C. (Leave to Appeal) No.50 of 2014 and learned A.G.A. for the appellant in Government Appeal No.1149 of 2014 u/s 3783 (3) Cr.P.C. against the judgement and order of acquittal dated 10.12.2013 passed by Additional Sessions Judge, Moradabad in S.T. No.680 of 2013 arising out of case crime no.91 of 2013 under sections 376, 452 and 506 IPC and perused the record as well as the record of lower court, which has been summoned.
The learned counsel for the applicant-appellants contended that as per F.I.R., "on 12.4.2013 at 11.00 p.m. when the first informant was sleeping in her house with her two daughters, and her husband had gone out for work, the accused respondents Anees, Talib and Sharik, entered the house by leaping boundary wall and just after entering in the house they caught hold of the daughters of first informant and Anees forcibly committed rape with one daughter while Talib committed rape with another daughter and at the time of leaving, threatened the first informant and her daughters of life in case of reporting; that the miscreants were identified in the light of Dibbi (kerosene lamp) and upon alarm raised by first informant Jabuddin, Naim and several other persons arrived at the spot who seen the miscreants leaving from the spot and identified them; that next day in Panchayat pressure was created upon the first informant that if she lodged report her entire family will be finished, for which reason she could not lodge the report immediately; that during the entire incident accused Sharik remain standing by her side."
Learned counsel for applicant-appellants Shri Zafar Abbas and learned A.G.A. contended that after framing of charges prosecution produced as many as 10 witnesses including the formal witness, first informant and both the prosecutrixes; that the statements of first informant and two prosecutrixes were consistent and duly supported by the evidence of medical officer and the eye witness Naim P.W.-4; that the learned trial court has acted wrongly in disbelieving 1the trustworthy and reliable evidence of prosecution and acquitting the accused persons merely for the reason that F.I.R. was lodged with a delay of five days; that in cases of sexual offences, the delay of five days may not be material to disbelieve the prosecution case.
Per contra learned counsel for accused respondents contended that the accused respondents were falsely implicated due to political rivalry; that no such offences as mentioned in F.I.R. even taken place and neither the accused respondents entered the house of first informant by over leaping the wall nor committed any rape with any of the two prosecutrixes; that in F.I.R. the accused respondents are not alleged to have been armed with any weapon; that the accused respondent Sharik has not been assigned with any role of committing of rape or catching hold of first informant or any of the two prosecutrixes; that during evidence several improvements were made by the prosecution and it was stated that accused respondents Anees and Talib were carrying knife at the time of incident which improvement is not permissible; that moreover, in the F.I.R. there is no mention that two prosecutrixes or first informant made any resistance or raised any alarm before committal of alleged rape with two prosecutrixes; that after the alleged incident dated 12.4.2013 F.I.R. has been lodged after deliberations with inordinate delay of five days on 17.4.2013 and thereafter medical examination of the two prosecutrixes has been conducted on 18.4.2013; that it is noteworthy that though there is no averment in the F.I.R. that during the course of rape any injuries were caused to the two prosecutrixes, with the knife, by the accused respondents Anees, Talib, however, multiple abrasions are alleged to have been found on the person of the two prosecutrixes as per injury reports, regarding which the medical officer P.W.-10 Dr. Shiv Singh has stated that two prosecutrixes were all the injuries of two prosecutrixes were simple in nature, which can be caused by some pointed weapon, and were about 1 to 2 days old at the time of their medical examination on 18.4.2013 between 1.30 p.m, to 2.00 p.m; that the lady doctor has stated on oath that no definite opinion about rape on two prosecutrixes may be given and there was no injury on their private parts at the time of examination; that the statement of alleged eye witness Naim is in contradiction with the first informant and the two prosecutrixes who has gone upto the extent of saying that the accused respondent Sharik was threatening with the pistol in his hand at the time when Anees and Talib were committing rape with the two prosecutrixes and that after threatening him Sharik fled away by leaping the wall.
Upon hearing the counsel for the parties and perusal of record, I find that it may not be disputed that in cases relating to sexual offences, the delay of five days may not be material to disbelieve the prosecution story. However, in view of the evidence on record, I find that there are material discrepancies on each and every point and on account of material contradictions between the statements of prosecution witnesses of fact, the prosecution version appears to be false and highly improbable. It is noteworthy that while there is no whisper in the F.I.R. about any resistance by any of the two prosecutrixes or the first informant, no whisper about any weapon with the accused persons in the evidence and no whisper of any injury sustained by any of the two prospecutrixes, the development made with regard to knife in the hands of accused Anees and Talib, pistol in the hand of accused respondent Sharik as alleged by witness Naim and not so alleged by first informant or two prosecutrixes, may not be permitted. Moreover, in view of the statement of medical officer P.W.-10 since the injuries were about 1 to 2 days old at the time of their examination of two prosecutrixes as on 18.4.2013, the alleged injuries appears to have been sustained on 16.4.2013 and definitely have no nexus with the alleged incident in question dated 12.4.2013. It is also pertinent to mention that the medical officer has stated that these injuries may be self-inflicted with the help of pointed Alpins. It is pertinent to mention that no such injuries are alleged to have sustained by the two prosecutrixes in the F.I.R. In the circumstances the delay of five days in lodging of F.I.R. becomes material. It is also pertinent to mention that the two prosecutrixes have stated that during the committal of offence blood oozed from their private parts but in the evidence it has been contended that the concerned bed-sheet stained with their blood and sperms of accused persons was taken away by the monkey, which may not be believed.
Upon careful consideration of evidence on record of appeal as well as trial court and the impugned judgement I also find that prosecution does not say that during the commission of offence of rape by the two accused persons out of three, the first informant was caught hold or detained by the third one or any of them. Being mother of the two prosecutrixes it was quite natural for a mother to open the main door of her house and raise alarm but there is no such whisper in the F.I.R. which unnatural conduct of mother, the first informant also creates doubt over the prosecution case and makes the prosecution case highly improbable.
It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/ misappropriation of evidence on record, reversal thereof by High Court was not justified".
In view of discussions made above, I have come to the conclusion that the learned AGA has failed to show any legal infirmities, incorrectness or perversity in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the impugned order of acquittal and substituting it with conviction order. The application for leave to file appeal by first informant Smt. Noorjahan u/s 372 Cr.P.C. and application u/s 378 (3) Cr.P.C. for leave to file appeal by State of U.P., have no force and are liable to be dismissed.
The application for leave to file appeal u/s 372 Cr.P.C. and application u/s 378 (3) Cr.P.C. for leave to file appeal are dismissed accordingly and the two appeals filed by first informant and Government also stands dismissed.
Order Date :- 9.3.2017 VS