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2015 Supreme(All) 2485
ALLAHABAD HIGH COURT
Vishnu Chandra Gupta, J.
Raj Kumar Alias Bhillar - Appellant
Versus
State of U.P - Respondent
Criminal Appeal No.75 of 2007
Decided On : 15-01-2015
For the Petitioner:- Avnish Srivastava, Prashant Singh’Atal’
For the Respondent:- Izhar Husain, A.G.A.
The main legal point established in the judgment is the requirement for sustainable evidence of rape, the determination of the prosecutrix's age, and the effect of delay in lodging the FIR.
Headnote:
Rape - Criminal Procedure Code - Indian Penal Code - 376, 506(2) - The judgment discusses the evidence of rape under section 376 IPC, the age of the prosecutrix, and the effect of delay in lodging the FIR. The court found that the evidence of rape was not sustainable due to lack of medical evidence and discrepancies in the testimonies. The age of the prosecutrix was determined based on a school certificate. The court explained the delay in lodging the FIR and ultimately set aside the conviction under section 376 IPC, but found the accused guilty under section 354 IPC and 506 IPC.
Fact of the Case:
The case involved the conviction of the appellant for rape and criminal intimidation. The prosecutrix, a 13-year-old girl, was allegedly raped by the appellant while being taken for local treatment. The FIR was lodged after a delay, and the medical evidence did not support the prosecutrix's testimony of rape.
Finding of the Court:
The court found that the evidence of rape was not sustainable due to lack of medical evidence and discrepancies in the testimonies. The age of the prosecutrix was determined based on a school certificate. The court explained the delay in lodging the FIR and ultimately set aside the conviction under section 376 IPC, but found the accused guilty under section 354 IPC and 506 IPC.
Issues: The issues included the sustainability of the evidence of rape, the determination of the prosecutrix's age, and the effect of delay in lodging the FIR.
Ratio Decidendi: The court held that the evidence of rape was not sustainable due to lack of medical evidence and discrepancies in the testimonies. The age of the prosecutrix was determined based on a school certificate. The court explained the delay in lodging the FIR and ultimately set aside the conviction under section 376 IPC, but found the accused guilty under section 354 IPC and 506 IPC.
Final Decision: The court set aside the conviction under section 376 IPC, but found the accused guilty under section 354 IPC and 506 IPC.
Challenge in this criminal appeal under section 374(4) of Criminal Procedure Code, 1973 (for short CR.P.C.) is the judgement and order dated 23.12.2006 passed by learned Fast Track Court No.1/Additional Sessions Judge, Faizabad in Sessions Trial No. 414 of 2003, State Vs. Raj Kumar, relating to crime No. 58 of 2002 P.S. Khandasa, District Faizabad whereby the appellant Raj Kumar @ Bhillar was convicted and sentenced under section 376 and and 506 (2) of Indian Penal Code (for short I.P.C.) with 8 years R.I. and a fine of Rs. 2000/-, in default further imprisonment of 6 months under section 376 I.P.C and 2 years R.I. Under section 506(2) I.P.C.
FACTS
2. The brief fact of the case are that on 12.05.2002 at 6 AM Km. Shiv Kumari, the prosecutrix (P.W.-3) aged about 13 years, niece of informant Matai Ram Yadav(P.W.-1), was going on foot with her aunt Sursati Devi (P.W-2) from her village Saroli to village Nato ka Dera Gaddopur for local treatment of pain in her teeth. In the way her neighbour accusedppellant Bhillar @ Raj Kumar on cycle met and told to Sursati Devi she may wait here and he will after providing the required treatment to prosecutrix will come back on cycle. After the aforesaid representation appellant took prosecutrix for local treatment to Nato Ka Dera. She also went on foot to Nato Ka Dera and on inquiry she came to now that after treatment the appellant took prosecutrix towards Village Mau. She also proceeded towards Village Mau. After treatment the appellant along with prosecutrix on cycle proceeded toward village Usmanpur. The prosecutrix asked the appellant, where he is going?. The appellant replied that he has to give invitations and thereafter he will come back. In this manner he proceeded toward metalled road and reached to out skirts of Village Mau through a village road having chool bushes. He dropped her from cycle and opened her cloths on gun point after extending threat to life raped her in the bushes. When prosecutrix protested he gagged her mouth. The aunt after wait for long start searching the prosecutrix and when she reached in the out skirts of village Mau, she heard the screams of prosecutrix. The appellant after seeing her left the prosecutrix and ran away with cycle. The prosecutrix narrated the whole story to her aunt and thereafter on return to home told it with her mother. At that time there was no male member in the house as her father was at Delhi in connection with his livelihood so, family members of prosecutrix called her uncle Matai Ram Yadav from his work place Musafirkahan, Sultanpur. When he arrived the details of incidents were given to him, he went to lodge the FIR but his FIR was not lodged in concerned police station. Then he went to court at Faizabad where he got prepared/typed an application and gave to S.P. City. who directed to Station Officer (S.O.) of concern police station to lodge the FIR on 21.05.2002. On the same day the medical examination of prosecutrix was conducted in Government Woman Hospital by Dr. Meera Verma (P.W.-4) which was handed over to the constable of Mahila police station. Thereafter the FIR was registered on 22.05.2002 at 10 AM in P.S. Khandasa under section 376, 506 IPC at crime No.58/2002.
3. S.I. Kaushlesh Bahadur Singh (P.W.-5) conducted the investigation of the case and submitted charge-sheet against the appellant under section 376/511 and 506 IPC. After committal of case the charges under section 376 and 506 IPC were framed. The appellant denied the charges and claimed his trial.
4. The prosecution in support of its case examined informant Matai Ram Yadav(P.W.-1), Smt. Sursati Devi(P.W.-2), prosecutrix Km. Shiv Kumari(P.W.3), Dr. Meera Verma(P.W.-4), Investigating officer Kaushlesh Bahadur Singh (P.W.-5) and H.C. Gulam Zafar(P.W.-6) who register the case and prepared the FIR. After close of prosecution evidence the appellantccused was examined under section 313 Cr.P.C.. He denied the allegations and claimed his false implication. Despite oppor
