Back
2010 Supreme(UK) 623
2011 (1) N.C.C. 411
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Dharam Veer
Criminal Appeal No. 393 of 2001
(Old No. 1817/1997)
BACHAN SINGH – Appellant/Accused
Versus
STATE OF U.P. – Respondent
Decided on : 14.09.2010
For the Respondent: Mr. Amit Bhatt, Addl.G.A.
Headnote:Indian Penal Code, 1860, Secs. 376, 342, 496 r/w Sec. 114 — Conviction for offences under — Propriety of — Prosecutrix, as per own statement, having come from Delhi to Dehradun on invitation of accused to attend birthday celebration of daugther of accused who is son of her Bua (father's sister) — Rape on her alleged to have been committed when she was unconscious under influence of some juice served to her on her own request — Prosecutrix aged 27 years at time of incident staying at residence of accused for about three months after the commission of rape on her and going out daily to attend computer classes — Her sister also residing in Dehradun but never went to meet her during all this period — Rape alleged by prosecutrix to have been committed in presence of wife of accused — No opinion regarding rape given by doctor who examined her medically — Delay of more than 2½ months in lodging F.I.R. — Co-accused, wife of accused, acquitted on the very same evidence — Conviction based on solitary testimony of prosecutrix, which does not inspire confidence and is not believable — Not justified. (Para 18)
Hkkjrh; n.M lafgrk] 1860] /kkjk 376] 342] 496 lifBr 114 & mDr /kkjk ds vUrxZr nks"kflf) dk vkSfpR; & vfHk;ksD=h ds Lo;a ds dFkukuqlkj og fnYyh ls nsgjknwu vfHk;qDr tks mldh cqvk dk csVk gS ds cqykos ij vfHk;qDr dh csVh ds tUefnol ds volj ij vkbZ & tUefnu ds lekjksg ds i'pkr mlds Lo;a ds ekaxus ij mls twl fn;k x;k ftls ihdj og csgks'k gks xbZ vkSj jkr esa csgks'kh dh gkyr esa mlds lkFk cykRdkj fd;k x;k & vfHk;ksD=h ?kVuk ds le; Lo;a ds vuqlkj 27 o"kZ dh vk;q dh Fkh rFkk ogh vk;q mlus /kkjk 164] n.M izfd;k lafgrk ds vUrxZr c;ku esa fy[kkbZ & ?kVuk ds ckn Hkh 2½ eghus ls vf/kd vfHk;qDr dh izkFkZuk ij mlds ?kj esa jgrh jgh rFkk jkst 'kke dks ckgj dEI;wVj dh Dykl vVS.M djus tkrh jgh & blh chp uk rks iqfyl ls gh lEidZ fd;k x;k vkSj u gh viuh cgu ls tks nsgjknwu esa gh jgrh gS & cykRdkj vfHk;qDr }kjk viuh iRuh dh mifLFkfr esa djuk crk;k x;k & MkDVj }kjk cykRdkj ds fo"k; esa dksbZ jk; izdV ugha dh xbZ & izFke lwpuk fjiksVZ ntZ djkus esa 2½ eghus ls vf/kd dh nsjh & mlh lk{; ij lg&vfHkksxh ¼vfHk;ksxh dh iRuh½ dks ijh{k.k U;k;ky; }kjk nks"keqDr fd;k x;k & vfHk;qDr dh nks"kflf) dsoy vfHk;ksD=h ds ,dek= dFku ij tks fo'oluh; ugha & U;k;ksfpr ughaA ¼izLrj 18½
Hon’ble Dharam Veer, J.
This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 3.10.1997 passed by the Ist Additional Sessions Trial No. 243/1995, State v. Bachan Singh & Anr., whereby the learned 1st Additional Sessions Judge has convicted the appellant/accused Bachan Singh under Sections 376 of Indian Penal Code, 1860 (for short IPC) and sentenced him to undergo seven years’ R.I. along with fine of Rs. 5,000/-, in default to undergo further six months R.I. However, the accused appellant was acquitted of the charges punishable under Section 342 & 496 IPC. Co-accused Smt. Sureshi was also acquitted by the trial court for the charges levelled against her under Sections 342 and 496 read with Section 114 IPC.
2. In brief, the prosecution case is that on 18.3.1995 at 4.05 pm, PW1 Km. Arun Prabha lodged an FIR with the averments that on 29.12.1994, she along with her cousin brother Ram Prakash came from Delhi to Dehradun on the occasion of the birthday of the daughter of the accused appellant Bachan Singh on his invitation. Bachan Singh is the son of her Bua (father’s sister). The juice was brought on her request. On drinking the said juice she became unconscious. On regaining her consciouness, she found that the rape has already been committed on her. On objection being raised by her, accused appellant Bachan Singh and his wife Smt. Sureshi (co-accused, acquitted by the trial court) filled up her Maang and provided Mangal Sutra to her. They told her that she is the second wife of Bachan Singh from today and he will marry with her quietly in the Court or Temple. Since then, they have detained her illegally. They also subjected her to mental and physical torture from time to time. They also assaulted her today. Saving herself, she came to the police station for lodging the report. On the basis of this report Ex. Ka-1, a case was registered against the appellant accused and the co-accused (acquitted by the trial court) and chick FIR Ex. Ka-5 was prepared by Head Moharrir Narendra Singh Bisht, who also made the necessary entries in the GD. Copy of GD is Ex. Ka-7. Investigation of this case was entrusted to SI KL Bhardwaj (PW5). The victim was medically examined on 18.3.1995 at 5 pm by Dr. Renu Negi (PW3), who also prepared the medical report Ex. Ka-3. On her advice, the x-ray of wrist, elbow, knee and ankle of the victim was done under the supervision of Dr. BC Ramola (PW2), Radiologist, who prepared her x-ray report Ex.Ka-2. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan Ex.Ka-6. He recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex.Ka-4 against the accused appellant and the co-accused (acquitted by the trial court).
3. Learned III ACJM, Dehradun, after giving the necessary copies of the documents to the appellant-accused and the co-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 23.9.1995. Learned Sessions Judge, Dehradun transferred the case to ‘1st Additional Sessions Judge, Dehradun for its disposal according to law.
4. On 8.1.1996, learned 1st Additional Sessions Judge, Dehradun framed the charges against the appellant/accused Bachan Singh under Section 342, 496 and 376 IPC and against the co-accused Smt. Sureshi under Sections 342, 114 and 496 IPC. The charges were read over and explained to the appellant-accused and the co-accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has examined PW1 Km. Arun Prabha, the victim and the complainant; PW2 Dr. BC Ramola, Radiologist; PW3 Dr. Renu Negi, who medically examined the victim; PW4 Smt. Krishna, real sister of the victim and PW5 SI KL Bhardwaj, the I.O. of the case.
6. Thereafter, the statements of the appellan
