Ashu vs State Of Uttarakhand

Alok Kumar Verma, J

The instant appeal has been filed by the appellant-accused against the judgment dated 19.07.2019 passed by learned Additional District & Sessions

Judge, Tehri Garhwal in Sessions Trial No.20 of 2018, “State vs. Ashuâ€, by which the appellant has been convicted under Sections 363, 366 and

376 of I.P.C. and has been sentenced to undergo rigorous imprisonment of seven years along with a fine of Rs.5,000/-, rigorous imprisonment of

seven years along with a fine of Rs.5,000/- and rigorous imprisonment of ten years along with a fine of Rs.10,000/- respectively with default

imprisonment. All the sentences were directed to run concurrently.

Briefly stated the prosecution story as it emerges from re-appreciation of the evidences on record is that, on 08.04.2018 at 10.00, a missing report

was lodged by the informant, PW-1, to this effect that her daughter (prosecutrix) got married four years ago. She went to her in-laws’ house from

his house on 06.04.2018 at 12.00. She reached Lambgaon. On the evening of 06.04.2018, a phone call was received by him that she did not reach her

in-laws’ house. He contacted his relatives and when her whereabouts could not traced, he lodged the missing report.

The prosecutrix was recovered on 11.05.2018 based on her phone location from the house of the appellant, which is located in Muzaffarnagar.

Thereafter, the missing report was converted in Case Crime No.9 of 2018, under Sections 363, 366 and 376 of the I.P.C.

The prosecutrix was medically examined on 12.05.2018 and her statement was recorded under Section 164 of the Code of Criminal Procedure, 1973

(hereinafter referred to as ‘the Code’) on 14.05.2018.

The matter was investigated and after completion of investigation, charge sheet, Ex-Ka-12, was filed. The case was committed to the Court of

Session. The charges under Sections 363, 366 and 376 of the I.P.C. were framed. The accused pleaded not guilty and claimed to be tried.

The prosecution in order to establish the charges, examined, altogether, seven witnesses.

The appellant-accused was examined under Section 313 of the Code. He denied the evidences, adduced by the prosecution.

Learned trial court heard arguments, appreciated the evidences and held that the prosecution has been successful to prove its case against the

accused beyond all reasonable doubt.

Both the parties filed their written submissions.

Heard Mr. S.K. Shandilya, Advocate and Mr. Pankaj Kumar Sharma, Advocate for the appellant and Mr. S.S. Adhikari, learned Deputy Advocate

General assisted by Mr. P.S. Uniyal, learned Brief Holder for the State.

Learned counsel for the appellant submitted that the appellant has been falsely implicated; learned trial court did not consider the truth behind the

statements of the prosecutrix and there are major contradictions in the statements of the prosecutrix.

On the other hand, learned Deputy Advocate General, appearing for the State, has supported the impugned judgment.

I have carefully assessed the evidences adduced by the prosecution.

PW-1 is informant and father of the prosecutrix. He proved his written information, Ex-Ka1.

PW-2 is the husband of the prosecutrix. He deposed that the prosecutrix is his wife and their marriage was solemnized on 4.10.2014.

PW-4 is a lady doctor. She proved medical examination report of the prosecutrix, Ex-Ka-3 and deposed that during medical examination, she did

not find any injury on the body of the prosecutrix and she did not conduct internal examination since the prosecutrix told her that she (prosecutrix) was

married lady having two child.

PW-5 is the scriber of Chick report, Ex-Ka-4.

PW-6 and PW-7 are Investigating Officers. After transfer of PW-6, S.I. Bhanwar Singh, PW-7, investigated the matter and the charge sheet, Ex-

Ka-12, was submitted by him.

The star witness of the prosecution is the prosecutrix herself. The prosecutrix, PW-3, aged about 23 years, deposed that she had no child from her

marriage. Her husband used to work in Chandigarh. The accused used to call telephonically her in-laws’ house. According to the FIR, the

prosecutrix went to her in-laws’ house from her parental house on 06.04.2018 at 12.00 O’ clock. But, according to the prosecutrix she went to

her relative in Rishikesh. She deposed that the accused called her on telephone and told her that he too was in Rishikesh and he was coming to meet

her at the Bus Station. The accused met her at the Bus Station, Rishikesh. She deposed that she had gone to the house of the accused by Bus, which

is located in Muzaffarnagar. She has further stated that the accused did nothing with her for two days. He, then had a physical relationship with her,

saying that he would marry her. She further deposed that she was remained in the house of the accused with him for a month and he made a physical

relationship with her throughout whole month against her will. However, she has stated in her cross-examination that the accused used to go to his job

and she lived in his house and at that time, she had no restriction to go in and out. There were other people’s room adjacent to the house of the

accused, but, in the meantime, she neither called anyone nor tried to run away from there. She deposed that in those days the accused brought food

from outside and sometimes, she used to cook herself. She has further stated in her cross-examination that she went to meet the accused in jail twice

and she stayed in a hotel with the mother of the accused.

Learned counsel for the appellant submits that the prosecutrix has stated in her examination-in-chief that she had no child from her marriage and

this statement itself lost her credibility as she told the doctor, at the time of her medical examination, that she had two child from her marriage.

Learned counsel for the appellant submits that prosecutrix was already familiar with the accused and she was not happy with her marriage, therefore,

she did not pick phone call of her husband on 06.04.2018. The prosecutrix in her cross-examination stated that she did not pick phone call of her

husband on 06.04.2018, when she was present in her parental house. Learned counsel for the appellant further submitted that the prosecutrix left her

parental house on 06.04.2018 at her own wish by telling a lie to her father that she was going to her in-laws’ house. Learned counsel for the

appellant submitted that the prosecutrix did not raise any alarm during her travel from Rishikesh to Muzaffarnagar. She improved her version before

the trial court that the accused made a physical relationship with her throughout whole month against her will. Learned counsel for the appellant

further submitted that according to the prosecutrix, the appellant used to go to his job and she had no restriction to go in and out. She was free to go

anywhere. There were neighbours but she neither tried to run away from there nor called anyone, she met the appellant in jail twice and also stayed in

a hotel at Tehri with the appellant’s mother. Learned counsel appearing for the appellant contended that the conduct of the prosecutrix shows that

she was consenting party.

In Kaini Ranjan vs. State of Kerala, 2015(2) CCSC 735, the Hon’ble Supreme Court held that the version of victim, in rape commands great

respect and acceptability, but, if there are some circumstances which cast some doubt in the mind of the Court of the veracity of the victim’s

evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape.

An accused can be convicted on the sole testimony of the prosecutrix, but the said testimony must inspire confidence and appear to be truthful and

if the statement of the prosecutrix has inherent infirmities, creating doubt, the same may not be acted upon. There are material contradictions in the

statements of the prosecutrix. There is nothing positive evidence placed on record against the appellant by the prosecution to prove its case against

him.

After going through the deposition of the prosecutrix, it can safely be held that it was the prosecutrix herself, major at that time, who had willingly

accompanied the appellant and she had been a consenting party.

As a result, I accept the case of the appellant. Accordingly, the appeal is allowed and impugned conviction and sentence are set aside. The

appellant is in jail. The appellant is directed to be released forthwith if he is not required in any other case.

The appellant is directed to make compliance of Section 437-A of the Code within 15 days from the date of this order by appearing before the

court concerned and execute a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned, which shall

be effective for a period of six months.

Let a copy of this order be sent to the concerned court and concerned jail for intimation and compliance.