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IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, DINESH PATHAK, JJ.
Zulfiqar @ Zillu – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.4812 of 2012
Decided on : 10-07-2020
Indian Penal Code, 1860 – Sections 376, 506 – Code of Criminal Procedure, 1973 – Sections 313, 156 – Sexual Assault – Conviction – Criminal appeal has been preferred by appellant against judgment and order passed by Additional Sessions Judge in Sessions Trial convicting him under Sections 376 (2) G and 506 IPC – He has been sentenced under Section 376(2) G IPC to undergo life imprisonment along with fine and in default thereof, he shall undergo additional imprisonment for six month – He was also sentenced under Section 506 IPC to undergo 5 years rigorous imprisonment with fine and in default thereof, he shall undergo additional imprisonment for two months – Held, Accused has failed to discharge his onus of proof that the victim was involved with him in consensual sex – In cross-examination of the prosecution witnesses and in the statement of the accused under Section 313 Cr.P.C., nothing has been emerged fortifying defence of consensual sex – Testimony of the victim is itself sufficient to convict the accused persons, inasmuch as, it is trustworthy, truthful and unimpeachable – Appeal Dismissed (Paras 54, 55)
Facts of the Case:
First Information Report (hereinafter referred to as 'FIR') are that the prosecutrix, (PW-2) had been continuously subjected to sexual assault under threat to her life and coercion for the last one month on blackmailing by the accused-appellant Zulfiqar @ Zillu, who had taken photographs of prosecutrix/victim in his mobile and threatened her to distribute her pictures amongst the villagers, in case, she leaks anything about the incident to anyone. On 18.05.2011 at about 11.00 A.M., when the prosecutrix aged about 16 years went to collect fodder for the cattle from the forest, accused Zulfiqar @ Zillu along with his friend Faizaan caught hold of her and sexually assaulted her by taking turn one by one.
Finding of the Court:
Accused has failed to discharge his onus of proof that the victim was involved with him in consensual sex – In cross-examination of the prosecution witnesses and in the statement of the accused under Section 313 Cr.P.C., nothing has been emerged fortifying defence of consensual sex – Testimony of the victim is itself sufficient to convict the accused persons, inasmuch as, it is trustworthy, truthful and unimpeachable.
Result: Appeal Dismissed
JUDGMENT :
Dinesh Pathak, J.
1. Heard Sri Pawan Singh Pundir, learned counsel for the appellant and Sri L. D. Rajbhar, Advocate assisted by Sri Prem Shanker Mishra, learned Additional Government Advocate for the State-respondent.
2. The instant criminal appeal has been preferred by appellant Zulfiqar alias Zillu against the judgment and order dated 03.11.2012 passed by the Additional Sessions Judge (Court No.2), Bijnor in Sessions Trial No.655 of 2011 (Zulfiqar @ Zillu vs. State of U.P.), convicting him under Sections 376 (2) G and 506 IPC. He has been sentenced under Section 376(2) G IPC to undergo life imprisonment along with fine to the tune of Rs.10,000/-and in default thereof, he shall undergo additional imprisonment for six month. He was also sentenced under Section 506 IPC to undergo 5 years rigorous imprisonment (in short 'R.I.') with fine amounting Rs.500/-and in default thereof, he shall undergo additional imprisonment for two months.
3. The allegations in the First Information Report (hereinafter referred to as 'FIR') are that the prosecutrix, (PW-2) had been continuously subjected to sexual assault under threat to her life and coercion for the last one month on blackmailing by the accused-appellant Zulfiqar @ Zillu, who had taken photographs of prosecutrix/victim in his mobile and threatened her to distribute her pictures amongst the villagers, in case, she leaks anything about the incident to anyone. On 18.05.2011 at about 11.00 A.M., when the prosecutrix aged about 16 years went to collect fodder for the cattle from the forest, accused Zulfiqar @ Zillu along with his friend Faizaan caught hold of her and sexually assaulted her by taking turn one by one. She was threatened by the accused to not to disclose the incident to anyone otherwise they will make her photographs public among the villagers and she would be killed. On hearing her screams, one Atiq-ur-Rehman s/o Hajib-ur-Rehman and Gaffar son of Mohd. Hanif reached at the place of incident but by that time, accused Zulfiqar @ Zillu and Faizaan had fled away from the spot. After returning from the forest i.e. place of incident, the prosecutrix/victim narrated the incident to her mother Smt. Naseema (PW-1), who took her to Police Station-Sherkot, but her complaint was not registered. Consequently, she took her daughter to the Government Hospital, Dhampur and got her medically examined. Thereafter, she made representations dated 19.05.2011 and 21.05.2011 with respect to the incident in question to the Superintendent of Police, Bijnor, but no action was taken. Ultimately, she moved an application under Section 156 (3) Cr.P.C. and in pursuance thereof, FIR was ordered to be lodged in Police Station-Sherkot.
4. In this backdrop, FIR dated 27.06.2011 (Exhibit Ka-6) was lodged against Zulfiqar @ Zillu (appellant) and Faizaan under Sections 363, 376 G and 506 IPC, which was registered as Case Crime No.107 of 2011, Police Station-Sherkot, District-Bijnor.
5. Initially, victim/prosecutrix was medically examined on 18.05.2011 at about 4.00 P.M. at the Primary Health Centre, Dhampur, Bijnor (hereinafter referred to as “PHC”) by Dr. Pramod Kumar Gupta (PW-4). Six wounds have been mentioned in the Medical Report dated 18.05.2011 (Exhibit Ka-5) signed by Dr. Gupta (PW-4), which are being noted herein below :
(ii) Abraded contusion red in colour front of left side chest. Just above left nipple.
(iii) Abraded contusion, red in colour, 4.5 cm x 3 cm on front of right side chest, 3 cm outer to left nipple at about 9 O' Clock position.
(iv) Abrasion red in colour 6 cm x 4 cm on back of left side chest on scapular region.
(v) Abrasion red in colour 6 cm x 4.5 cm on back of right side chest on scapular region.
(vi) Contusion red in colour 4.5 cm x 3 cm on front of right forearm just above right wrist joint.
6. After registration of the FIR, prosecutrix/victim was again medically examined on 30.06.2011 at 4.00 P.
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