AFR

Court No. - 49

Case :- CRIMINAL APPEAL No. - 3781 of 2002

Appellant :- Raj Veer

Respondent :- State of U.P.

Counsel for Appellant :- Raj Kumar Khanna,Bharat

Singh,Mohd Imran Khan

Counsel for Respondent :- Govt. Advocate

Bench: Hon’ble Suneet Kumar & Hon’ble Vikram D. Chauhan,JJ.

Suneet Kumar,J.

1.

Heard Sri Bharat Singh, learned counsel for the

appellant, learned AGA for the State and perused the lower

court record with the assistance of learned counsels.

2.

This criminal appeal has been filed against the judgment

and order dated 6.9.2002 passed by Additional Sessions Judge

IV, Moradabad in S.T. No.184 of 2002 (State Vs. Rajveer),

under sections 452 and 376 IPC, P.S. Hayat Nagar, District

Moradabad, whereby, the appellant has been convicted and

sentenced under section 452 IPC with one year rigorous

imprisonment and fine of Rs.5,000/- and convicted and

sentenced under Section 376 IPC with life imprisonment and

fine of Rs.10,000/-. In case of default in payment of fine,

additional simple imprisonment for a period of two years.

3.

As per prosecution case, husband of the victim i.e.

Sukhram lodged a report on 31.3.2001 at 12:10 p.m. alleging

that on 30.3.2001 at about 11:00 p.m. in the night, appellant

taking advantage that his wife was alone in the house,

committed offence of rape. It was further alleged that the

appellant is neighbour and earlier in the morning of the day of

incident, he had quarrel with the appellant over a drain. On

fear of the appellant, he left the village and had gone to his

(2)

cousin’s place in another village.

4.

After investigation, police report/charge sheet came to

be filed under Section 376 IPC against the appellant. The

appellant was summoned to stand trial on charges under

Sections 376 and 452 IPC.

5.

The prosecution to prove the charge, examined in all

five witnesses. Three witnesses of fact and two formal

witnesses. Sukhram, informant/husband of the victim (PW-1),

victim (PW-2), Noshe (PW-3) an independent

witness/neighbour of the complainant, Constable Harendra

Singh (PW-4) who proved the Chik F.I.R. and G.D. Entry and

Dr. Aruna Pal (PW-5) proved the medical examination report

and pathology report.

6.

Sukhram (PW-1), the complainant stated that he is aged

about 28 years and a labour. On the day of the incident at

about 10:00 a.m., a brawl ensued between him and the

accused-appellant over a drain and the flowing water, which

the accused had obstructed. He further deposed that out of fear

of the accused, he left the village and went to neighbouring

village, at his cousin’s house. On returning to his village on

the following day, his wife (victim) informed that at about

11:00 p.m. on the previous night; accused entered the house

after opening the latch (kundi) and committed the offence of

rape. He further stated that victim informed him that on

hearing her scream neighbours, Noshe Ali and Shamim, came

on the spot and saw the accused escaping from the premises.

He further stated that he had taken his wife to the Thana and

report came to be lodged on a written complaint, reduced in

(3)

writing at his home.

7.

He identified his thumb impression on the complaint

(Exhibit Ka-1). He further stated that the clothes of the victim

was taken, recovery memo was drawn, on which his thumb

impression was taken (Exhibit Ka-2). In cross examination, he

stated that Maluki Pradhan, and Hari Singh had not

accompanied him to the court, but they met him within the

premises of the court. He further stated that Maluki Pradhan,

and Hari Singh are facing trial for murder of the brother of the

accused. He further stated that the house of the accused is

adjacent to his house, as well as, one of his (appellant) house

is opposite to his house. There is a drain between the house of

the complainant and that of the accused. The drain vests in

gram panchayat and is not owned by either of the parties. He

further stated that at 6:0