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IN THE HIGH COURT OF ALLAHABAD
MANJIVE SHUKLA, J.
Devanand Pandey – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 1119 of 2001
Decided On : 12-07-2023
Threat - Criminal Appeal - Section 376 IPC - [Sections 363, 366, 376 IPC] - The court acquitted the accused of the offences punishable under Sections 363 and 366 IPC, but convicted the accused for the offence punishable under Section 376 IPC. The court found the victim's testimony to be unbelievable and improbable, and without corroborative evidence, the conviction based solely on the victim's testimony was deemed manifestly illegal.
Fact of the Case:
The appellant was convicted for the offence punishable under Section 376 IPC based on the victim's testimony that the accused had done sexual intercourse with her without her consent and under threat. The trial court found the victim's testimony to be unbelievable and improbable, and the medical examination revealed the victim's age to be 18 years, contradicting her statement.
Finding of the Court:
The court found the victim's testimony to be unbelievable and improbable, and without corroborative evidence, the conviction based solely on the victim's testimony was deemed manifestly illegal. The court concluded that the prosecution failed to prove the charges against the appellant beyond reasonable doubt.
Issues: The issues revolved around the credibility of the victim's testimony, the lack of corroborative evidence, and the discrepancy in the victim's age as per her testimony and the medical examination.
Ratio Decidendi: The court held that the conviction cannot be based solely on the testimony of the prosecutrix if it is full of contradictions and lacks corroborative evidence. The court emphasized the need for corroborative evidence to support the version of the prosecutrix.
Final Decision: The court set aside the judgment and order convicting the appellant for the offence punishable under Section 376 IPC and acquitted the appellant of the charge. The appellant's bail bonds were cancelled, and sureties were discharged.
JUDGMENT :
MANJIVE SHUKLA, J.
1. Heard Mr. Avinash Srivastava, learned counsel appearing for the appellant and Mr. Balram Singh, learned Additional Government Advocate appearing for the State.
2. Appellant through this criminal appeal has challenged the judgment and order dated 28.11.2001 passed by 11th Additional Sessions Judge, Faizabad in Sessions Trial No. 90/93 whereby the appellant has been convicted for offence punishable under Section 376 IPC and has been sentenced for rigorous imprisonment of 10 years with fine of Rs. 5,000/- with rider that in the event of failure to deposit the amount of fine, he will undergo six months’ rigorous imprisonment.
3. Complainant (brother of the victim) lodged an FIR in Police Station Tarun, District Faizabad which was registered as Case Crime No. 218 of 1992 under Section 363/366 IPC. The complainant in the aforesaid FIR has stated that accused appellant son of Suryabhan Pandey and Rohit Kumar Pandey son of Ram Bahor Pandey, residents of Village Vidyapur Gayaspur, P.S. Tarun, District Faizabad had enticed his sister and thereby took her away. The complainant in the FIR has further stated that his sister is aged about 14 years and is a minor. In the FIR, it has further been stated that his sister had also taken away cash and jewellery with her. The complainant in the FIR has said that he tried to search out his sister but she is untraceable, therefore the First Information Report be lodged and the police may search out his sister.
4. After lodging of the aforesaid FIR, the police of the concerned police station started investigation. On 5.1.1993 at about 7 p.m. in presence of witnesses Madan Mohan Mishra and Mohd. Junaid Khan, the police found that the victim was going on the road near the south Kabristan of village Saidpur towards village Pandey Ka Purwa and thereafter she was questioned and her bag was searched out, then it was found that jewellery was in the bag. The recovery memo was prepared and the victim after medical examination was handed over to her father.
5. The police after completing the investigation submitted charge sheet against accused appellant under Sections 363, 366, 376 IPC and against accused Rohit Kumar Pandey under Section 363/34 and 366/34 IPC.
6. The trial court framed charges against accused appellant under Sections 363, 366, 376 IPC and against accused Rohit Kumar Pandey under Sections 363/34 and 366/34 IPC. During trial, testimony of PW-1 (brother of the victim), PW-2 (victim), PW-3 Dr. Meera Srivastava, PW-4 Dr. D.R. Bhuwan and PW-5 Sub Inspector M.L. Khan was recorded.
7. Thereafter, statements of both the accused were recorded under Section 313 Cr.P.C.
8. PW-1 (brother of the victim) in his testimony recorded during trial has deposed that in the night of 2/3.11.1992 he was sleeping outside his house and his sister was sleeping inside the house. When he woke up in the night and went inside the house, he found that his sister was not there and at that time it was about 2.30 a.m. in the night. PW-1 in his testimony has further deposed that the age of his sister was 14 years and he tried to search out his sister but she could not be traced. He has further stated that accused Rohit Kumar Pandey and accused appellant are the residents of his village and both used to come to his house and also used to talk to his sister. He also deposed that he had instructed them not to talk to his sister. He said that when his sister could not be traced out, then he became confident that Rohit and accused appellant had enticed his sister and further his sister along with her had also taken away Rs.200/- cash and jewellery. When his sister could not be traced out, then on the next day he went to the police station and lodged the FIR. He has also said that at the time of incident his mother and father were not present in the house as his mother had gone to Ayodhya and his father was in Surat on his service.
9. PW-1 complainant in his cross examination has deposed that at the time of incid
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