HIGH COURT OF JUDICATURE AT ALLAHABAD
Criminal Appeal No. 5029 of 2005
State of U.P. ………………………………………..Respondent
Criminal Revision No. 723 of 2006
Sarju Prasad Mishra……………………………………….Revisionist
State of U.P. and another………………………………Respondents.
Hon Vinod Prasad, J
Appellant Raj Kumar Shukla, in Criminal Appeal No. 5029 of 2005, has challenged his conviction u/s 363, 366,376 IPC and implanted sentences of three years RI with fine of Rs. 2000/- on first count, five years RI with fine of Rs. 3000/- on the second count and ten years RI with fine of Rs. 5000/- on the last count, recorded by Additional Session’s Judge, Court No. 2, Basti, in Session’s Trial No. 56 of 04, State Vs. Raj Kumar Shukla and another, relating to Police Station Kotwali, district Basti. Trial Judge had further ordered that in default of payment of fine appellant shall under go one year further RI on all the counts, and that all his sentences shall run concurrently. By the same impugned judgement, trial Judge had acquitted Mahant alias Hanuman, another accused and consequently informant Sarju Prasad Mishra has challenged acquittal of the said accused Mahant alias Hanuman in connected Criminal Revision No. 723 of 2006. Since both the aforesaid cases arose out of the same impugned judgement and order, they are clubbed together and are being decided by this common order.
Charge against the accused appellant, as was levelled by informant Sarju Prasad Mishra in his 156(3) Cr. P.C. application dated 16.10.2003, Ex. Ka 1, which was filed before Chief Judicial Magistrate, Basti, were that informant was the resident of village Lighara, P.S. Rudhauli, district Basti and was an assistant teacher in Ganesh Sanskrit Primary School, Dakshin Darwaja, Basti and was residing with his family in the house of late Indra Deo Mishra, situated at district hospital crossing, Basti. Appellant Raj Kumar Shukla was his neighbour in the same premises. On 12.10.2003, appellant with his other socio criminises, at 6.30 p.m. kidnapped informant’s daughter Km. Suman aged about 15 years from the banks of a nearby bond, when she had gone there to attend nature’s call. Vishnu Deo Mishra had seen accused and the abductee near the place of the incident. After return to his house informant located for his daughter but could not find her and then he started searching for her, when aforesaid Vishnu Deo Mishra informed him about the incident. Informant went to appellants house but could not find him and his relatives informed that appellant too was not traceable since evening. Same day informant gave an application at P.S. Kotwali but his FIR was not registered and consequently informant moved another application on 15.10.2003 through registered post to SSP Basti but even then his FIR was not taken down. Relatives of accused were constantly hurling threats to the family members of the informant, and therefore, left without no other option, informant approached Chief Judicial Magistrate, Basti u/s 156 (3) Cr. P.C., as mentioned above, by moving an application Ex.Ka1. Chief Judicial Magistrate, Basti on the said application directed the Station Officer, Kotwali to register and investigate the offence, but not to arrest the accused without his permission.
Sub Inspector, Ram Achal Mishra, working as Head Moharrir at P.S. Kotwali, on the basis of Ex. Ka1, registered FIR of crime no. 43 of 03, u/s 363, 366 and 506 IPC by preparing chick FIR Ex. Ka 4 on 19.10.2003 at 8.05 p.m. and corresponding GD entry Ex. Ka 5. Investigation into crime was commenced by Sub Inspector Ram Vilas Yadav, who recorded statements of Head Moharrir Ram Achal Mishra P.W. 5 and Vishnu Deo Misra, sole eye witness, and thereafter conducted spot investigation and prepared side plan Ex.Ka2. On 22.10.2003 victim Km. Suman returned back to her parental house and receiving the said information, P.W.4 came to her at her parental house and recovered her and prepared recovery memo Ex. Ka 3. Thereafter victim was sent for medical examination through lady constable. P.W. 4 also recorded 161 Cr.P.C. statements of victim Km. Suman Mishra and witnesses of recovery memo Shyam Prakash and Hari Shanker Mishra. Further investigation into the crime was conducted by SI P.K. Maurya P.W. 6, who copied medical examination report of the victim and handed over victim to her parent’s custody under the orders of the court. He copied 164 Cr.P.C. statement of the victim. On 8.11.2003, P.W. 6 interrogated appellant and penned down his statement. On 20.11.2003, he recorded 161 Cr.P.C. statement of witness Badri Vishal, Smt. Geeta Devi (mother of victim) and that of victim herself. Subsequently, I.O. recorded investigatory statement of Manish Upadhyay. After some days, under the orders of C.J.M., he recorded 161 Cr.P.C. statement of co-accused Mahant @ Hanuman. Thereafter I.O. interrogated Asha Devi, aunt(Bua) of appellant and concluding investigation, charge sheeted appellant, as well as co-accused Mahant @ Hanuman, vide charge sheet no. 311 of 2003, under sections 363, 366, 376, 506 I.P.C. vide Ext. Ka-6.
Medical examination of victim Km. Suman Mishra, P.W. 2 was conducted on 23.10.2003 by Dr. Alka Shukla, P.W.7, M.O., Women Hospita, Basti at 12.35 p.m., who was brought to her by lady constable C.P. No. 626 Sarita Singh. Doctor had noted following facts in her primary medical examination report Ext. Ka-7:-
“Examined police medico legal case Km. Suman Mishra D/o Sri Sarju Prasad Mishra R/o Lighara, P.S. Rudhauli, Basti on 23.10.2003 at 12.35 p.m.
B/B- Sarita Singh CP 626 on matter of UMSUR=
M/I- A Black mole-1.5 cm below lower lip.
General 4/5 feet wt. 32 kg, teeth 13/14 gest normal. No external injury seen.
On examination axillary and pubic hair well developed. Breast not fully developed. Avera dark brown in colour, Valva looks normal lebia majora and minora not fully developed. Hymen old, healed seen but vagina admit two finger easily. Vaginal smear taken and send to pathological examination.
For age determination send to radiological examination for left ankle, rt. wrist elbow, knee joint and radiological opinion of age.
EMO Women Hospital, Basti. 23.10.2003.”
Dr. R.A.L. Gupta, Senior Radiologist P.W. 8 had got the victim X-rayed under his supervision on 24.10.2003 vide X-ray Registration No. 411041114112 for her elbow joint, right knee joint, right wrist etc. and had given his report Ext. Ka-10, contents of which are noted herein below:-
“Suman Mishra, D/o Sarju Prasad, R/o Lighara, P.S. Rudhauli, District Basti.
X-rayed No. 411041114112
A.M.- 106/96 Ref. By Women Hospital, Basti.
B/B- PC Sarita Singh CP No. 626 P.S. Kotwali.
M.I.- Bm on chin 1-5 cms lower lip.
Part X-red- Rt. Wrist, Rt. Elbow, Rt. Knee.
Rt. elbow joint- Epiphysis and the elbow joint are fused.
Rt. knee joint- Epiphysnal fusion and the knee joint is started but not completed.
Rt. wrist joint- Epiphysis at the lower end of radius and ulna is not fused.
Radiologicaly the age of the girl appears to be 16 years.
Radiologist- District Hospital, Basti.”
P.W. 8 further proved the X-ray plate as material Ext. 1. In the estimation of radiologist also, victim was about 16 years of age.
Pathologist report regarding victim vide Ext. Ka-9 dated 23.10.2003 prepared by EMO, Women Hospital, Basti indicated that no spermatozoa was seen in the victim’s vaginal smear.
On 27.10.2003, PW7, after receipt of X-ray report and plate, prepared supplementary report Ext. Ka-8 and opined that the radiological age of the victim appeared to be about 16 years.
On the basis of charge sheet Ext. Ka-6, CJM, Basti registered case no. 507 of 2004, State Vs. Raj Kumar Shukla on 3.2.2004 taking cognizance of the offence and finding the offence triable by Session’s court, vide committal order dated 12.2.2004, committed case of both the accused Raj Kumar Shukla and Mahant @ Hanuman to Session’s court, where it was registered as S.T. No. 56 of 2004, State Vs. Raj Kumar Shukla and one another on 24.2.2004.
Additional Session’s Judge, F.T.C. Court No. 1, Basti, in the aforesaid S.T. charged both the accused for offences under sections 363, 366 I.P.C. Appellant was additionally charged under section 376 I.P.C. on 10.3.2004. Both the accused denied the charges and claimed to be tried and hence to establish their guilt, prosecution tendered in all eight witnesses during their trial, out of whom informant Sarju Prasad Mishra P.W. 1, victim Km. Suman Mishra P.W. 2 and Manish Upadhyay P.W. 3 were the fact witnesses. Prosecution formal witnesses included first I.O. Ram Vilash Yadav P.W. 4, head moharir Ram Achal Mishra P.W. 5, second I.O. P.K. Maurya P.W. 6, Dr. Alka Shukla P.W. 7 and radiologist Dr. R.A.L. Gupta P.W. 8.
In their statements under section 313 Cr.P.C., both the accused denied prosecution charges and pleaded defence of their false implication. They in their defence however, did not examine any witness.
Additional Session’s Judge, Court No. 2, Basti after examining facts and circumstances of the case, critically appreciating evidences, both oral and documentary, tendered before it, held that prosecution had failed to establish it’s charge against Mahant @ Hanuman and, therefore, conferred benefit of doubt and acquitted him. It however concluded that charged offences were established to the hilt beyond any doubt against appellant Raj Kumar Shukla and, therefore, convicted him for all those offences under sections 363, 366, 376 I.P.C. and implanted sentences, which has already been mentioned in the opening paragraph of this judgment by passing impugned judgment of conviction and sentence, which is now been questioned by the convicted accused appellant in the instant appeal. Since, informant was aggrieved by acquittal of Mahant @ Hanuman and, therefore, he filed connected criminal revision against acquittal.
On the above background facts, I have heard Sri Haridwar Singh, learned counsel representing both the accused Raj Kumar Shukla and Mahant @ Hanuman and Sri J.P. Mishra, learned counsel for the informant as well as Sri A.P. Singh, learned AGA for the State.
Criticizing the impugned judgment of conviction and sentence, learned counsel for the appellants submitted that the entire background facts along with evidences of victim indicate that she was a consenting party to the entire episode and she escaped from her parental house on her own volition and stayed with the appellant for about nine days and when the FIR was lodged, she returned back to her house and leveled false charge of kidnapping, abduction and rape against the appellant. It was further submitted that victim P.W. 2 is not a reliable witness as she had embellished her testimony from what she had stated during investigation before the I.O. Next submission is that informant P.W. 1 is not an eye witness of the incident, which was divulged to him by Vishnu Deo Mishra but very surreally, prosecution could not muster courage to examine said Vishnu Deo Mishra as a witness and, therefore, prosecution story that the incident was informed to the informant P.W.1 by Vishnu Deo Mishra remains an unsubstantiated allegation. It is further submitted that the entire deposition of P.W. 1 in respect of the incident is incredible as it is hearse and, therefore, cannot be relied upon. It is next submitted that appellant was a tutor of the victim since last two years during course of which, because of infatuation, physical relationships between them developed because of which P.W. 2 had eloped from her parental house along with the appellant and, thereafter cooked up and manufactured a false story. It was further submitted that according to the own showing of P.W. 1, his FIR was not registered on 12.10.2003 and yet informant waited for another couple of days and filed his application Ext. Ka-1 only on 16.10.2003 after a gap of three days. It is therefore, submitted that the only evidence against the appellant remains is that of victim P.W.2.
Criticizing P.W.2’s depositions it was submitted that she had narrated altogether a different story to the Investigation Officer during investigation, according to which, she had developed physical relationship with the appellant when he was tutoring her. She had further informed the I.O. that from tempo she was brought outside the city and thereafter in a car she was taken to Bansi at the house of aunt (Bua) of the appellant. Aforesaid statement, given by the victim during investigation, was eschewed by her and she embellished her version by testifying in court that she had fainted when she was carried in the tempo. Learned counsel submitted that this summersault, during trial, was taken by the victim only for the reason that her entire deposition was false and cooked up. Medical report indicated that she was 16 years of age, which is corroborated by the depositions of PW2 herself. Learned counsel, to castigate and criticize P.W.2, further referred to her investigatory statement wherein, she had deposed that she was 16 years of age. It was next submitted that the secondary characters noted by P.W.7 along with testimony of P.W.8 unerringly established that P.W.2 could not have been less than 16 years of age. It was submitted that she is untruthful, unreliable and untrustworthy witness on whose statement, no credibility can be attached. Learned counsel, therefore castigated the depositions of P.W.2 as being totally incredible unnatural and unconvincing. Turning towards reliability of P.W.3, he was criticized for the reason that his depositions does not farther prosecution case at all. P.W.3 is the friend of younger brother of informant and therefore, he is interested and related witness. His name does not figure in FIR exhibit Ka-1 and therefore, he is a got up witness. Interrogatory statement of this witness was recorded only after recovery of the victim after enormous delay on 7.12.2003. It was next argued that the deposition of P.W.3 does not anoint any charge on the appellant as his seeing of two accused in conversation with each other is not an incriminating circumstances against the accused as both the accused were uncle and nephew and closely related. There standing in conversation with each other, therefore, is not indicative of the fact that they were conspiring or had a common motive & intention. Learned counsel therefore, submitted that evidence of P.W.3 is of no value in holding the appellant guilty. It was next submitted that the evidence of the two doctors does not at all establish that victim was subjected to rape against her will and consent. She was found to be used to sexual intercourse. None of her muslin was seized to lend credence to the prosecution version. No internal or external injury was found on her body and therefore, the charge of forceful intercourse with her is absolutely false. It was further contended that acquittal of accused Mahant @ Hanuman is well merited and the opinion by the trial Judge cannot be said to be patently absurd or not borne out form the record and therefore, in revision, the same cannot be upturned. Learned counsel further submitted that in revision reappraisal of evidence is impermissible and informant had failed to point out any illegality in recording acquittal and therefore, revision against acquittal preferred by the informant being without substance deserve to be rejected. It was on these submissions that it was contended by accused counsel that appeal of appellant Raj Kumar Shukla be allowed and he be acquitted of the charges and the revision preferred by the informant be dismissed.
Learned counsel for the informant as well as learned AGA argued to the contrary and submitted that the accused by taking undue advantage of his position, as a tutor had enticed away victim P.W.2 with whom he had committed rape and therefore, the impugned judgment of conviction does not suffer from any error of law or that of fact. It was argued by informant’s counsel that acquitted accused Mahant @ Hanuman was present at the scene of the incident at or about when victim was kidnapped and it was he who had brought the victim from the house of aunt(Bua) of the appellant and therefore, at every stage of the incident he is present and therefore, his complicity in the crime was also established and trial court erred in not holding him guilty. It was therefore, submitted that revision of the informant be allowed and the case of Mahant @ Hanuman be remanded back to the trial court for retrial.
I have considered the arguments raised by both the sides and have perused and vetted evidences on record as well as other material exhibits and the case diary. In the present appeal, it is allegated that the appellant had enticed away the victim. Neither in the FIR nor in his deposition father informant had disclosed any reason for kidnapping. From the cross-examination of the victim P.W.2, it is clear that she had left her parental house to attend call of nature. Argument of appellant’s counsel is also that P.W.2 had left her parental house on her own volition. It was never the prosecution case that accused had knowledge about victim’s going to attend nature’s call at that time and place. On this aspect, when evidence of PW2 is scanned it transpires that according to her claim nobody had any idea that she will go to attend call of nature at that particular time and place. According to her testimony her nose was gaged with anesthetic smell because of which she had fainted. On such fact it is not convincing that accused will wait for her arrival with a tempo at that spot unless they were knowning about victim’s arrival at that time. Further if she had fainted immediately how could she knew that she was brought to Bansi at appellant’s Bua house in a tempo. During investigation she had divulged altogether a different story that she was brought out of the city on tempo and from there she was taken to Bansi in a car. Hence what she had stated in court was not stated by her in her first disclosure statement to the I.O. Victim had also not informed the I.O. that she had fainted and that she had regained consciousness at Bansi and thus she had embellished and improved upon her version which does not inspire any confidence and is contrary to her initial statement u/s 161Cr.P.C. Her deposition that when she was put in the tempo she was unconscious and therefore she could not state as to whether she was lifted in tempo or that she was forced inside it is contradicted by her statement in court. Hence charge of kidnapping seems to have not been established. This view is also supported by the fact that during investigation she had stated that sexual contact between her and appellant occurred with her consent albeit on a false allurement of marriage. She had stated so in her 164 Cr.P.C. statement as well. Trial court also noted contradiction in her such statements and had even recorded opinion that accompanying of victim with the appellant was not unnatural. If such a conclusion was drawn by the trial judge there was no occasion for it to convict the appellant for the charge of abduction and kidnapping by taking a view contrary to the settled canons of law that it was for the prosecution to establish the charge to the hilt and accused is entitle to the benefit of each and every reasonable doubt. It was also brought on record through deposition of PW3, Manish, that on the date of the incident he (Manish,PW3) had seen both appellant and victim having conversation with each other near the place of abduction, which statement belies victim’s testimonies of abduction after making her unconscious. Victim had never put up such a case that she had any conversation with the appellant. In such a view it is not convincing and reliable to believe that victim was kidnapped by the appellant and conversely, what seems most likely is that she had gone with the appellant on her own volition because of marriage assurance. This view is further lend credence by the fact that she had informed in her 161 and 164 Cr.P.C. statements that sexual act was performed with her with will and consent on false pretext of marriage.
Regarding charge of rape victim’s version is full of un-naturality. She contradicted herself and resiled from her earlier statement according to which she had entered into sexual intercourse with the appellant on false pretext of getting married when appellant had called her in his room. There was no force applied nor her hands were tied at the back, but in the court she deposed that she was raped forcefully by tying her hands. This was never her case during investigation. Why she created such a story for the first time in court is not understandable and does not inspire any confidence for it’s truthfulness. Considering from another angle if she was not enticed away for forceful marriage charge of abduction u/s 366 IPC fails. Such a summersault by her bracket her in the category of not wholly a truthful witness and hence no implicit reliance can be placed upon her. Charge of rape is also supported by the evidence of the doctor according to whom no opinion about rape could be given in her respect. No external or internal injury was found on her body. Her cloths were neither seized nor produced in court. She had stayed with the appellant for nine days. From her such statements coupled with her medical report it does not seems to be a case of intercourse without her consent and will. What is most significant to note is that in her 164 Cr.P.C. statement victim had stated that she entered into sexual act because of allurement given to her for marriage. Why then she had not stated so before the trial court? Why she narrated altogether a different story during trial? Trial judge also noted such contradiction in 164 Cr.P.C. statement but instead of testing veracity of victim’s deposition on the touch stone of truthfulness and probability, because of such contradictions in her story, it tried to justify her conduct by opining that such a conduct on her part was not unnatural looking to her age and her infatuated attraction towards appellant who was her neighbor and tutor. Trial court further accepted that there was sufficient force in accused argument that cohabitation took place with the consent of victim but convicted the appellant because of the reason that victim was a minor. This in my view is a fallacious approach as the benefit of difference in victim’s age should have been conferred on the accused and not on the victim especially when prosecution had failed to get it elicited from the doctor that she was less than sixteen years of age. On this aspect even PW1, informant, who is father of the victim and was a teacher did not disclose her exact date of birth. He would have been the best person to establish her age by filing documentary proofs regarding it but he intentionally eschewed it. On this aspect finding by the trial court that she was minor is not born out from the record as doctors evidence does not establish it conclusively. Accused is entitled to benefit of flexibility in age and opinion favourable to the accused has to be adopted and accepted. While determining age trial court considered those factual aspects which were never spelt out by her father PW1. Although he did note that no documentary evidences was filed by PW1 regarding age of victim but made mere ipse dixit of PW1&3 alongwith unproved document as the basis of opining that victim was a minor. She could be about 16 years of age. If because of infatuation victim who could be 16 years of age had left her parental house no charge of kidnapping can be anointed on the abductor. Her consent will come to the rescue of the appellant for commission of that offence. In such a view, so far as conviction of the appellant for the charge of kidnapping and abduction is concerned, it cannot be sustained and has to be set aside.
There is yet another reason for not upholding conviction u/s 366 IPC. Prosecution case is clear and cogent right form the very beginning that the victim was taken away by appellant Raj Kumar Shukla. In application under Section 156(3) Cr.P.C., no reason for kidnapping was mentioned by informant P.W.1. In his testimony before the court also, P.W.1 failed to divulge any reason for kidnapping and deposed that he was informed by Vishnu Dutt Mishra that he had seen his daughter boarding a tempo near grave yard alongwith appellant Raj Kumar and three other people who were ready to go to some place. The only charge levelled by P.W.1 is that his daughter was enticed away. When star prosecution witness P.W.2, victim herself, entered into the witness box she deposed in examination-in-chief that when she was going to attend nature’s call and when she had reached near the grave yard then appellant along with three other associates was standing there. Appellant forced his handkerchief on her nose with some anesthetic smell and thereafter P.W.2 fainted. Appellant thereafter took her to Bansi in a tempo and there at 11p.m. that she regained her consciousness. Appellant’s Bua gave her the dinner but she refused and requested them to send her back to her parents. It was further stated by the victim that thereafter, appellant confined her in a room where he had committed forceful rape upon her by tying her hands. Thus there is no charge against the appellants that victim was enticed way for forceful marital tie or for compelling her to marry any person against her will. Although such a statement was made by the victim in her 164 Cr.P.C. statement but for the reasons best known to her she resiled from such a case and developed a case of forceful rape upon her. In her 164 statement she had stated that she was allured for the marriage and on such a pretext that sexual contract developed between her and appellant with consent and will. Since victim eschewed allegation of abduction because of forceful marriage, no charge of abduction can be established against the appellant as first sine qua non ingredient for making offence u/s 366 IPC is absent in the present appeal.
Now turning towards the second ingredient for making out offence u/s 366 IPC, that the victim was kidnapped for compelling her to forceful intercourse, it is noted that on the facts of the present appeal victim seems to be a consenting party, which fact was accepted by the trial court as well, and therefore, there was no intercourse without her will and consent. In this respect, it was argued that victim had taken a summersalt than what had been stated by her during investigation. For the purposes of judging the veracity of victim’s deposition and to analyze as to whether she is a truthful or reliable witness or not, only for this limited purpose, I have perused her statement under Section 161 Cr.P.C. and it is revealed that criticism by appellant’s counsel has got some substance. During investigation, altogether a different story was stated by the victim, according to which, she was having physical sexual relationship with the appellant since prior to her elopement more than two or three years prior to the present incident. This story has been completely eschewed by the victim when she entered into the witness box. Trial judge also considered such contradiction in the victim’s story but ignored it while testing truthfulness of victim’s depositions. Otherwise also medical report does not support her charge of forceful carnal intercourse. No injury had been detected on her private part nor on her external body. Victim had stated that her cloths were cleaned by her mother to wash of signs of rape. Why the mother did it, is not understandable but this certainly plummeted the charge against the appellant of raping the victim without her consent and will. Doctor also could not give any concrete opinion that victim was subjected to rape. Other unconvincing factor is that no where it has been stated by the victim that she had yelled out for help when she was being abducted. Her story that she was administered some poisonous smell because of which she fainted does not appeal to reason. In her medical examination there is no evidence to that effect and from her deposition also the said allegation does not seems to be a correct narration of fact. If victim had fainted how could she come to know that she was transported in a tempo to the house of appellant’s aunt (Bua) in village Bansi. According to her she regain consciousness at 11.00 in the night. During investigation neither the number of the tempo nor whereabouts of his drivers could be traced out nor any attempt was made by the I.O. in that direction. During investigation, it was alleged that the accused and the victim had gone outside the city premises in the tempo and thereafter they had boarded in a car to go to Bansi. Why this story was given up by the victim also does not appeal to reason. Her mere ipse dixit that she was subjected to rape does not commend and is an unconvincing deposition. It is also unconvincing that the tempo was standing at the pond since prior to arrival of P.W. 2 unless there was a plan for elopement. How could accused know that the victim will arrive at the pond at the relevant hour on the date of the incident. It is not in her statement that she had fainted prior to be transported in the tempo. She also did not inform the I.O. that she regain consciousness in the house at Bansi. She was contradicted by her statement in respect of going to Bansi in the car and coming out of city precinct in the tempo. Regarding intercourse also, she had informed the I.O. that the appellant had called her in her room and then he had sexual intercourse. In such a view, prosecution allegation regarding abduction of the victim and committing rape upon her against her wishes does not inspire any confidence and seems to be an afterthought story. P.W. 4 when entered into witness box, contradicted victim P.W. 2 specifically and unambiguously when he deposed that P.W. 2 had not informed him that she had fainted prior to be put in tempo or that she was forced to smell something anesthetic because of which she had lost her conscious. In such a view, I am of the opinion that no intercourse took place against the will and consent of the victim.
Coming to age of the victim trial Judge himself recorded a finding that in respect of victim’s age, no documentary evidence was produced in court although High School mark sheet of 2003 was available on the record, which was filed at the time of hearing of bail application. Trial court committed an error in not relying upon evidences which were favourable to the accused in respect of age of the victim. It’s opinion that victim could not have been 16 years of age because she was a student of class 10th also does not appeal to reason as according to the statement of victim herself, she had failed in class 10th. The opinion by the trial Judge that victim was below 16 years of age on the date of the incident is also not borne out from the record. In her statement before the I.O., she had stated her age to be 16 years and that is commensurate with the medical findings specially looking to the secondary characters mentioned by P.W. 7. For nine days, victim had remained with the appellant and it is very unconvincing that aunt of the appellant will also be a privy to the crime of rape in side her house. The impugned judgment also suffers from incorrect approach as the trial Judge although observed, at page 25 of the impugned judgment, that the argument by appellant’s counsel that carnal intercourse took place with the consent of the victim is perceptibly clear from her testimony, has much substance, yet has rejected defence argument because in it’s opinion victim was less than 16 years of age and, therefore, her consent was immaterial. In recording such a finding trial Judge completely misinterpreted the opinion of the two doctors, which were clear and unambiguous that the victim was about 16 years of age and hence benefit of age had to be conferred on the accused. Prosecution has not dare to challenge the said testimonies of medical expertsr. It had not mustered the courage to prove by documentary evidence, the age of the victim recorded in her school. It is cardinal rule of criminal jurisprudence that if two views are possible then the view favourable to the accused has to be adopted as it is for the prosecution to prove the charge beyond any reasonable doubt against the accused.
Impugned judgment is also unsustainable as, at page 26 of the impugned judgment, trial Judge itself has opined that there is sufficient force in the accused argument that the prosecution has not tendered any reliable and credible evidence in the light of which, it can be said that victim was abducted. Trial Judge also opined that P.W.1 is not an eye witness of the incident and on the deposition of P.W. 3, no reliance can be placed on his statement that he was an eye witness of the incident. The trial Judge only relied upon the statement of victim P.W. 2. In my opinion, since she was an interested, partisan, and unreliable witness, who was a privy to the whole episode, therefore, to save her skin, she had narrated a fabricated version. Without lending assurance from any independent source her testimony was insufficient to hold appellant guilty. As pointed out above, she had changed her version from time to time and, therefore, cannot be relied upon. This she seems to have done to rectify her mistake committed by a damsel under infatuation, which is not far to perceive. Her hymen was found to be old torned and healed with insertion of two fingers easily, which can be taken to be a prima facie evidence, on preponderance of probability, that the victim was used to carnal intercourse. In such a view, I am of the opinion that the conviction and sentence of the appellant for all the charges remains unsubstantiated and disproved.
In above view none of the offences leveled against the appellant are established beyond any shadow of doubt and he is entitle to acquittal.
Now turning towards the revision filed by the informant, I am of the opinion that in revision, no reappraisal of the evidence is possible. Counsel for the informant had failed to point out any legal infirmity in the impugned judgment of acquittal because of which, it can be said that the same suffers from illegality or material irregularity. It is trite law that a judgment of acquittal should not be interfered with unless and until, it is found that the same suffers from patent error of law and the opinion recorded by the acquitting court is so patently absurd that it cannot be sustained at all. Presence of Mahant @ Hanuman near a pond is not an incriminating circumstance at all as appellant was his real nephew. If uncle and nephew entered into a conversation with each other, it is not an incriminating circumstance at all. The aunt of appellant was the sister of accused Mahant @ Hanuman. Visiting the house of sister and taking the victim from her house to victim’s maternal uncle residence is also not an incriminating circumstance. It does not establish at all that Mahant @ Hanuman was also a socio criminises and had sensus id idum with the appellant to commit kidnapping and abduction of the victim.P.W. 3 himself has been disbelieved by the trial Judge, in whose opinion, he was not a reliable witness. The said opinion of the trial Judge could not be castigated by the revisionist counsel. The only evidence against the acquitted accused Mahant @ Hanuman was that of P.W. 3. as P.W.2 had not anointed any specific role to the said accused. He is 45 years of age and without any preceding and succeeding background, he could not have been convicted for the charges framed against him. Therefore, trial Judge had rightly given him benefit of doubt and has acquitted him. Impugned judgment, therefore, cannot be castigated so far as Mahant @ Hanuman is concerned regarding his acquittal. The opinion by the trial Judge for the said accused is hereby approved and affirmed and the revision preferred by the informant against acquittal of Mahant @ Hanumant being meritless is hereby dismissed as it does not require any interference.
In the net result appeal of appellant Raj Kumar Shukla, being Criminal Appeal No. 5029 of 2005 is hereby allowed and he is acquitted of all the charges. He is on bail. He need not surrender. His surety and bail bonds are discharged. Criminal Revision No. 723 of 2006, Sarju Prasad Mishra versus State and another, is hereby dismissed.
Let a copy of the judgment be certified to the trial court for its intimation.