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2020 Supreme(All) 588
IN THE HIGH COURT OF ALLAHABAD
Virendra Kumar Srivastava, J.
Nazeer – Appellant
Versus
State of Uttar Pradesh – Respondent
Criminal Appeal No. 1886 of 2017
Decided On : 16-06-2020
For the Appellant : Anjali Dubey, Rajiv Mishra, Rehan Ahamad Siddiqui, Soniya Mishra.
For the Respondent: G.A.
Point of Law:
No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
Headnote:
Indian Penal Code, 1860 – Sections 363, 366, 376 – Prevention of SC/ST of Atrocities Act, 1989 – Section 3 (2) (5) – Prevention of Children From Sexual Offence Act, 2012 – Sections 3, 4 – Code of Criminal Procedure 1973 – Sections 383, 437A, 164 – Detention – Conviction of – Criminal Appeal, under Section 383 of Code of Criminal Procedure 1973 has been filed by the accused-appellant through Jail Superintendent, against judgment and order, passed by Additional District and Sessions Judge, Court, whereby appellant has been convicted and sentenced for seven years rigorous imprisonment and fine for offence under Section 363 IPC, for offence under section 366 IPC for ten years rigorous imprisonment with fine and for offence under Section 376 IPC read with 3/4 POCSO Act ten years rigorous imprisonment with fine with further direction that all the sentences shall run concurrently and 3/4 of total fine shall be payable to the victim – Held, It is clear that statement of sole eyewitness, victim is contradictory and not reliable, she was more than eighteen years at the time of occurrence, prosecution case is not supported by the medical evidence, FIR was lodged by P.W.-1 not only by delay of more than three days but its contents are contradictory to the prosecution story, prosecution has suppressed the important evidence and also withheld important witnesses – Trial Court has not properly discussed the prosecution evidence – Prosecution has miserably failed to prove its case beyond reasonable doubt that appellant had kidnapped and raped the victim – Appellant is entitled to be acquitted – Court is unable to uphold the conviction and sentence of the appellant – Impugned judgment and order passed by the Trial Court is accordingly set aside –Appeal Allowed(Paras 38, 39)
Facts of the Case:
Victim (P.W.-2), daughter of Sarju Prasad, (P.W.-1), resident of village Dakherwa Chauraha, Police Station Nighasan, District Lakhimpur Kheri, was student of Class Xth of Kanti Devi Intermediate College, Lakhimpur. On 03.12.2014 at about 9:00 a.m., she was going to her college to take six monthly examination. As she was on the way to her college, appellant Nazeer, who was working as servant in her house, along with two other person, kidnapped her on the point of knife.
Finding of the Court:
It is clear that statement of sole eyewitness, victim is contradictory and not reliable, she was more than eighteen years at the time of occurrence, prosecution case is not supported by the medical evidence, FIR was lodged by P.W.-1 not only by delay of more than three days but its contents are contradictory to the prosecution story, prosecution has suppressed the important evidence and also withheld important witnesses – Trial Court has not properly discussed the prosecution evidence – Prosecution has miserably failed to prove its case beyond reasonable doubt that appellant had kidnapped and raped the victim – Appellant is entitled to be acquitted – Court is unable to uphold the conviction and sentence of the appellant – Impugned judgment and order passed by the Trial Court is accordingly set aside.
Result: Appeal Allowed
JUDGMENT :
Virendra Kumar Srivastava, J.
1. This Criminal Appeal, under Section 383 of the Code of Criminal Procedure 1973 (hereinafter referred to as ‘Code’), has been filed by the accused-appellant Nazeer (hereinafter referred to as ‘appellant’) through Jail Superintendent, Kheri, against the judgment and order dated 07.09.2017, passed by the Additional District and Sessions Judge, Court No.2, Lakhimpur-Kheri, in Criminal Case (Special Session Trial) No.04 of 2015 (State of U.P. vs. Nazeer), arising out of Case Crime No.993 of 2014 under Sections 363, 366, 376 IPC, Section 3 (2) (5) Prevention of SC/ST of Atrocities Act, 1989 (hereinafter referred to as 'SC/ST Act) and Section 3/4 Prevention of Children From Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO Act'), Police Station Nighasan, District Lakhimpur-Kheri, whereby the appellant has been convicted and sentenced for seven years rigorous imprisonment and fine of Rs.7000/-for offence under Section 363 IPC, for offence under section 366 IPC for ten years rigorous imprisonment with fine of Rs.10,000/- and for offence under Section 376 IPC read with 3/4 POCSO Act ten years rigorous imprisonment with fine of Rs.15,000/-with further direction that all the sentences shall run concurrently and 3/4 of total fine shall be payable to the victim. It has further been directed that appellant has to undergo four months rigorous imprisonment in default of payment of fine for offence under Section 363 IPC, five months rigorous imprisonment, in default of payment of fine for offence under Section 366 IPC and seven months rigorous imprisonment in default of payment of fine for offence under Section 376 IPC read with 3/4 POCSO Act with further direction that period of detention already undergone in jail shall be set off in aforesaid sentences.
2. The prosecution case, in brief, is that the victim (P.W.-2), daughter of Sarju Prasad, (P.W.-1), resident of village Dakherwa Chauraha, Police Station Nighasan, District Lakhimpur Kheri, was student of Class Xth of Kanti Devi Intermediate College, Lakhimpur. On 03.12.2014 at about 9:00 a.m., she was going to her college to take six monthly examination. As she was on the way to her college, appellant Nazeer, who was working as servant in her house, along with two other person, kidnapped her on the point of knife. A written complaint dated 05.12.2014 (Ex.Ka-1) was lodged by Sarju Prasad (P.W.-1) at Police Station Nighasan at 14:40 p.m. on 06.12.2014 with further allegation that he had apprehension that her daughter would be raped and murdered. It was further stated in complaint (Ex.Ka-1) that the whole occurrence was within the knowledge of appellant's brothers Zibrail, Wazir, Bushir, Israil and Rafiq and Wazir and Zibrail had advised him (P.W.-1) not to initiate any criminal proceedings as his daughter would be handed over till 8:00 a.m. on 05.12.2014.
3. On the aforesaid complaint (Ex.Ka-1), chik report (Ex.Ka-5) was prepared, information was entered in General Diary (Ex.Ka-6), Case Crime No.993 of 2014 under Sections 363, 366 IPC and Section 3 (1) (10) SC/ST Act was registered against appellant Nazeer and two unknown persons and the investigation of the case was entrusted to Deputy Superintendent of Police (In short 'Dy.S.P.') Ram Asrey (not examined) who visited the place of occurrence and prepared sight plan (Ex.Ka 9).
4. During investigation, victim (P.W.-2) was recovered and appellant Nazeer was also arrested on 09.12.2014 at about 5:40 p.m. by Station House Officer (In short 'SHO') Ram Kumar Yadav (not examined) accompanied with Constable 285 Kamlesh Kumar, (not examined) lady Constable 758 Shama Parveen (not examined), in the presence of Sarju Prasad (P.W.-1) and his wife Smt. Anita Devi (victim's mother) (not examined) near Bus Station Paliya, Police Station Nighasan and recovery memo (Ex.Ka-10) was prepared by S.H.O. Ram Kumar Yadav and both the Victim (P.W.-2) and appellant Nazeer were sent for medical examination who were medically
