Back
2020 Supreme(All) 1123
IN THE HIGH COURT OF ALLAHABAD
Siddharth, J.
Mukesh Walmiki and Ors.- Appellants
Vs.
State of U.P.- Respondent
Criminal Appeal No. 2630 of 2009
Decided On : 06-01-2020
For the Appellant : Pradeep Kumar Shukla, Amit Kumar Srivastava, Kamlesh Tiwari, M.N. Singh and Rajesh Singh Rathore
For the Respondents:Govt. Advocate
Headnote:
Evidence Act - Section 114A – Criminal Procedure Code - Section 313 – Indian Penal Code - Sections 366, 376 - Rigorous imprisonment – Appeal against conviction – Forst Information Report - Prosecution case is that informant made an application before police station that her daughter and she was kidnapped and his companions - Later she came to know that has forcibly abducted her daughter for purpose of marriage - She gave an application before Police Station but her report was not lodged and her daughter was not recovered - Later informant came to know that when her daughter was going she was abducted on point of knife and for last two months she is in his captivity with help of Methods rape and blackmail girls by snapping their nude pictures and compel them to live in their caste - Daughter of victim is in captivity of accused and should be recovered - On direction of Deputy Inspector General of Police FIR was registered against accused under Sections 363, 366 IPC and victim was recovered - On basis of her statement and medical report case was converted for offences under Sections 363, 366, 376 IPC and charge-sheet was accordingly submitted – Held, Court is of view that in present case prosecution has not been able to prove case of abduction and rape against appellants beyond reasonable doubt - Victim is a major girl - Appellants have no criminal antecedents and they have been convicted only on basis of solitary testimony of the victim - Medical evidence does not corroborates prosecution case - Family of the victim and the appellants appear to be known to each other - Oral testimony of the victim does not stands corroborated from the medical evidence - It appears that the victim eloped with the appellant No. 1 and stayed with him for six months - Mother of victim gave an application before police station concerned but claims that FIR was not registered - She did not approached any higher authority - She only gave the application to DIG Police Bareilly and thereafter FIR was lodged - From statement of victim recorded by Investigating Officer under Section 161 Criminal Procedure Code soon after her recovery she had admitted that she was enticed away by the appellant No. 1 and she went with him - She had stated that later she realized her mistake on going with him and she leveled allegation of rape against appellant No. 1 and then appellant No. 2 his father - Clearly victim is major and it cannot be said that she was not aware of consequences of her act of going with appellant No. 1 - After staying with him for about six months it appears that she could not remain happy with him and hence she made allegations of abduction and rape against both appellants - From her statement it appears that after she went with appellants she realized that she belongs to higher caste and her parents are being humiliated and she realized her fault - Statement of victim before trial court is that for a period of six months she remained under intoxication wherever she went she was blind folded, such a statement cannot be accepted. Conduct of PW-5 father of victim is strange - He has admitted that he came to know about abduction of PW-2 after incident - A person whose daughter is abducted was not informed of the fact for days is not credible - These improbabilities show that prosecution has not been able to prove the case against the appellants beyond doubt - Victim was a major girl at time of alleged offence and it cannot be accepted that she was enticed away by the appellant No. 1 without her consent - Prime witness of her abduction her brother was not produced to prove her abduction - Her consent may have been on account of misconception of fact but it does not appears from perusal of material on record that she was abducted by force from busy place of when her brother was also accompanying her - Appellants deserve to be absolved of all charges - Criminal Appeal is allowed
ORDER :
Siddharth, J.
1. Heard Sri Rajesh Singh Rathore, learned Counsel for the appellants and Smt. Seema Shukla, learned AGA for the State.
2. This criminal appeal has been preferred by appellants, Mukesh Walmiki, s/o Sri Manohar Lal and Manohar Lal, s/o Har Charan Lal Singh, against the judgment and order dated 25.4.2009 passed by Additional Sessions Judge (Fast Track Court), Court No. 4, District Bareilly, in Sessions Trial No. 714 of 2007 (State Vs. Mukesh and others), under Sections 366, 376 IPC convicting and sentencing the appellants under Section 376 IPC to 10 years rigorous imprisonment and fine of Rs. 5000/- each and under Section 366 IPC to 7 years rigorous imprisonment and fine of Rs. 3000/- each and on failure to deposit the fine, to undergo four months additional imprisonment.
3. The prosecution case is that informant, Beena Yadav, w/o Om Prakash Yadav, made an application before the police station that her daughter, Chandani @ Jyoti, had gone to Kutchery on 14.7.2005 and she was kidnapped by Mukesh s/o Manohar Lal and his companions. Later she came to know that Mukesh has forcibly abducted her daughter for the purpose of marriage. She gave an application before the Police Station Baradari, Bareilly, on 21.7.2005, but her report was not lodged and her daughter was not recovered. Later informant came to know that on 14.7.2005, when her daughter was going to Shulabh Shauchalay she was abducted on the point of knife by Mukesh Walmiki and for last two months, she is in his captivity. Mukesh Walmiki, s/o Manohar Lal, Manohar Lal, s/o Har Charan Walmiki, his wife, Bimlesh and daughter, Sandhya, with help of Tantrik Methods, rape and blackmail girls by snapping their nude pictures and compel them to live in their caste. The daughter of the victim is in captivity of accuseds and should be recovered. On the direction of Deputy Inspector General of Police, Bareilly, FIR was registered on 27.8.2005 against accuseds, Mukesh Walmiki, Manohar Lal, Bimlesh and Sandhya, under Sections 363, 366 IPC and victim was recovered on 31.1.2006. On the basis of her statement and medical report, the case was converted for offences under Sections 363, 366, 376 IPC and charge-sheet was, accordingly, submitted.
4. The trial court framed charges under Sections 363, 366 IPC against the appellants, Mukesh and Manohar Lal. They denied the charges and sought trial.
5. PW-1, Smt. Beena Yadav, stated that victim had gone to Kutchery alongwith her younger brother, Jitendra, for preparation of an affidavit, where she was kidnapped by accused, Mukesh. When her daughter did not reached home, she started her search and thereafter, came to know that Mukesh, Manohar Lal, his wife, Bimlesh and his daughter, Sandhya, have forcibly abducted her and want to get her forcefully married to Mukesh. The accuseds entice away the girls and thereafter they sell them. They rape them and on the basis of photographs blackmail them. She proved the application given at the police station and stated that her daughter was recovered after six months and given in her custody. In her cross-examination, she admitted that when she came to know about the captivity of her daughter, PW-2, by appellants, she went to meet her.
6. PW-2, victim stated that she had studied upto high school. On the fateful day, she had gone to get an affidavit prepared from Kutchery alongwith her younger brother. When she was going to Shulabh Shauchalay, she met a black woman, who gave her some Prasad. After consuming the same, she got stupefied. Two persons came, one of whom on pointing of knife caught her and when she raised alarm, some people came, but they informed that she is their daughter suffering from illness. When she regained consciousness, she found herself in a dark room. Her hands and legs were tied and these people committed her rape against her will. They used to take her after blind-folding and she was made to sign on the papers forcibly on the threat that in case she refuses to make her signat
