Naurang vs State of U.P.

Ranjana Pandya, J.—This criminal appeal has been preferred against the judgment and order dated 16.05.2015 passed by the learned Additional Sessions Judge/Fast Track Court, Mau in Sessions Trial No. 244 of 2009 (State v. Naurang and others) arising out of Case Crime No. 478 of 2009, under sections 363, 366, 376 IPC, police station Madhuban, district Mau, whereby the appellant Naurang has been convicted and sentenced to seven years'' rigorous imprisonment and a fine of Rs. 10,000/- and in default thereof the appellant shall further undergo imprisonment for six months. Half of the amount of fine so deposited by the appellant was directed to be given to the victim.

Brief facts as unfolded in the prosecution case and the FIR are that the informant Chhotey Lal Gupta is resident of village Katghara Shankar, police station Madhuban, district Mau. His niece Pooja was staying with him and was studying. She was the student of class-VIII of Ambedkar School, who was aged 13 years. She was taken away by accused-Naurang on 18.03.2009 at 7.00 a.m. The informant tried to trace out the girl, but she could not be traced out. Father of the accused Moti Prasad also assisted the accused in taking away the girl. The planning of taking away the girl was made three months prior to the incident, but since the informant came to know about the plan, the plan could not be executed. But again the accused came into action and took away the victim. When the informant came to know about the fact, he gave information at the police station on 18.03.2009. The parents of the accused were called to the police station to hand over the girl to her maternal uncle (mama), but after lapse of three days, the whereabouts of the victim were not known. Hence, the informant filed the report on the belief that his niece could be murdered.

On the basis of this report, the constable clerk scribed the chik report, which was proved as Ext. Ka-13 by P.W. -6, S.I. Shahzad Yadav. On the basis of chick report, the relevant entries were made in the G.D., which was proved by P.W. -6 S.I. Shahzad Yadav as Ext. Ka-14. Investigation was entrusted to S.I. Shahzad Yadav, P.W. -6, who after entering details of the chik and G.D. in the case diary, reached village Katghara Shankar and recorded the statements of the informant Chhotey Lal Yadav and Gita Devi. He inspected the spot with the assistance of the informant and Gita Devi and prepared the site plan and proved it as Ext. Ka-6. After that he recorded the statements of the witnesses. The accused persons were arrested on 05.04.2009. The statements of Moti Prasad and Firoz were recorded and the Investigating Officer tried to trace out the victim. This witness further proved the copy of G.D. as Ext. Ka-7. On 11.05.2009 he apprehended the victim and the accused Naurang and recorded their statements on 19.05.2009. He received the medical report, X-ray report and the radiological report. The statement of the victim Pooja was got recorded under section 164 Cr.P.C. He obtained the copy of the transfer certificate relating to age of the victim, in which her date of birth was mentioned to be 02.08.1996. It was entered in the case diary and proved as Ext. Ka-1. The copy of the statement of the prosecutrix recorded under section 164 Cr.P.C. was copied in the case diary and charge sheet was submitted against the accused, which was proved as Ext. Ka-12.

In support of the case, the prosecution examined P.W. -1, informant, who proved the written report as Ext. Ka-1. P.W. -2 is the victim Pooja. P.W. -3 is Gita Devi, mother of the victim. P.W. -4 is Dr. Sushma Singh, who conducted the medical examination of the victim, prepared the medical report and proved it as Ext. Ka-3 and radiological report as Ka-4. P.W. -5 is Dr. S.D. Gautam, who proved the x-ray report as Ext. Ka-5 and x-ray plates material as Ext. 1 and 2. P.W. -6 is S.I. Shahzad Yadav, whose evidence has been discussed above. After examining these witnesses, the prosecution has closed the evidence.

Statement of the accused Naurang was recorded under section 313 Cr.P.C., in which while denying the occurrence, he has stated that he was living with the victim. He did not use any force. He has been falsely implicated in this case because he did not belong to the caste of the victim. The accused Moti Prasad while denying the incident has stated that he has been falsely implicated. However, no evidence was adduced in defence.

Learned lower court after examining the record and hearing the counsel for the parties convicted the accused Naurang as aforesaid, against which the appeal has been preferred. However, the accused Moti Prasad was acquitted.

I have heard Shri Vinay Kumar Mishra, learned counsel for the appellant and learned AGA appearing on behalf of the State.

Following points were raised before this Court:

"* There is inordinate delay in lodging the FIR. Hence, the prosecution case is unreliable.

* There is no evidence on record on the basis of which the accused could be convicted. Hence, the conviction is liable to be set aside."

On the other hand learned AGA has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed.

(i) There is inordinate delay in lodging the FIR. Hence, the prosecution case is unreliable.

As far as the delay in lodging the FIR is concerned, generally in the cases of this types delay in lodging the FIR is immaterial. The occurrence is said to have taken place on 10.03.2009 at 7.00 a.m., whereas the report was lodged at the police station on 22.03.2009 at 13.30 hours. The distance of the police station from the place of occurrence is 3 kms.

As far as explanation of delay in lodging the FIR is concerned, the informant stated that when he came to know about the incident on 18.03.2009, he made an application to the Station Officer police station Madhuban. The Station Officer called the father of the accused, who assured that he would get the girl recovered in two days, but she was not recovered. The application dated 18.03.2009 mentioned in the FIR has not come forth in the evidence adduced by the prosecution.

P.W. -1, Chhotey Lal Gupta is the informant, who stated that on 18.03.2009 Pooja did not return home. The father of the accused promised to bring her back, but when she did not return after two days then on 22.03.2009 he gave an application to the Station Officer concerned and proved it as Ext. Ka-1. This Ext. Ka-1 is dated 22.03.2009. There is no valid and plausible explanation for not lodging the FIR earlier because in this case the informant has not said that in order to save the reputation of the family, he did not lodge the FIR. Thus, there is no reasonable explanation for the delay, which increases the chances of false implication.

P.W. -1 Chhotey Lal Gupta has admitted that he came to know about the name of the accused on the date of incident and he had given a written report on the date of the incident. The said written report has not been produced by the prosecution. The report, which is produced by the prosecution is dated 22.03.2009.

In view of the aforesaid, I conclude that the FIR is delayed, which increase the chances of false accusations.

(ii) There is no evidence on record on the basis of which the accused could be convicted. Hence, the conviction is liable to be set aside.

Learned counsel for the appellant has submitted that this is a case of no evidence and the trial court has wrongly convicted the accused although there was no evidence against the accused.

P.W. -1 Chhotey Lal Yadav, the informant, who is the maternal uncle (mama) of the victim, has stated that the victim is married lady, whose husband resides at Bombay for the last 12-13 years from the date of his examination in court. He is a heavy drunkard and has deserted the victim for the last 8-9 years. He never comes to meet the victim. The court has also noted the demeanour of this witness, P.W-1 Chhotey Lal Gupta and specified that when certain questions were put to this witness, he got very nervous.

In cross-examination P.W. -1 Chhotey Lal Gupta has stated that the victim had relation with the accused prior to the incident and both had planed to elope together.

When P.W. -1 Chhotey Lal Yadav, the informant, being maternal uncle of the victim, was asked as to why he himself did not write the written report, he kept on smiling in the court and did not reply to this question. This demeanour of the witness was also noted by the court in the statement of the witness. P.W. -1, who is not an eye-witness.

P.W. -2 is the victim, who has stated that she eloped with the accused on 18.03.2009 on her own freewill. She married accused on her own freewill and stayed with him as husband and wife. She has stated that nobody enticed her away and in fact she remained with the accused for 45 days in Delhi and developed physical relationship with him. She has further stated that she was known to the accused two years prior to the incident. She developed love relationship with the accused. When her mother came to know about her relation, her mother assaulted her and slapped her. The victim has further stated that when she was produced before the Magistrate for recording her statement under section 164 Cr.P.C., her mother was also present. She has stated that as per medical certificate at the time of occurrence, her age was 17-1/2 years.

Further she has stated that her father has left her mother. It appears that this witness is bold enough to say before the court that her mother Gita Devi had illicit relations with Dr. Ashok Sahani for about six years that is why she has deserted her husband. She further had the courage to say that Dr. Ashok Sahani is a married man. She had seen her mother in a compromising situation with Dr. Ashok Sahani and her father also knows this fact. Her younger sisters also know the fact of mother''s relationship with Dr. Ashok Sahani. Dr. Ashok Sahani is a tenant in her house and after the alleged occurrence her father also did not come home. Clarifying further on the point, this witness has stated that Dr. Ashok Sahani had come with her mother on that date to the court. He accompanies her mother on every date. Her mother is in her paternal house for the last 12-13 years and all the family members know about her illicit relationship with Dr. Ashok Sahani. She has also gone to the extent of stating that after her statement, if she is murdered, then her mother Gita Devi and Dr. Ashok Sahani will be responsible for the same because Gita Devi and Dr. Ashok Sahani have threatened that they would hang her to death. She has further stated that when she came back from Delhi with Naurang, she was pregnant, but her mother forcibly got her pregnancy terminated. She has stated that

She has also stated that her mother and Dr. Ashok Sahani had threatened her that if she would give the correct statement before the court, she would be murdered, but she has given the correct statement. Thus, according to the statement of this witness, she went on her own accord with the accused and stayed for a considerably long period with him and the accused did not commit any offence.

P.W. -3 is Gita Devi, mother of the victim, who has stated that Naurang, Moti Prasad and Firoz had taken away her daughter. She has admitted that Dr. Ashok Sahani is tenant in her house. Contradicting the statement of P.W. -2, this witness has stated that her husband came one month after the occurrence. She has stated that she has never seen Dr. Ashok Sahani. In cross-examination she has stated that Naurang married Pooja forcibly, whereas Pooja has stated that she married Naurang on her own sweet will. She has admitted that since the victim is vaish and the accused is scheduled caste, hence she is opposing the marriage.

P.W. -4 is Dr. Sushma Singh, who opined the age of the girl to be about 17 years. P.W. -5 is the radiologist P.W. -6 is S.I. Shahzad Yadav.

As far as the rape is concerned, the victim herself stated on oath before the court that she was not forcibly raped by the accused.

Learned AGA has submitted that according to Ext. Ka-8, the date of birth of the victim is 02.08.1996. It has been submitted by the learned AGA that the victim was minor at the time of incident, hence her consent carries no value.

Since, there is no academic certificate regarding age of the victim, hence the radiological age of the victim has to be looked into. The radiological age of the victim as per Ext. Ka-3 is 17 years. A margin of two years can be given on both sides in such cases. Hence, the age of the victim can also be inferred to be about 19 years in the absence of any academic record. The evidence of the victim has shattered the whole prosecution story as the prosecution has miserably failed to prove the charges levied against the accused.

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rule specifies how the age shall be determined. The transfer certificate does not find place in this rule. Hence, Ext. Ka-8 cannot at all be relied upon.

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 reads as follows:

"12. Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

Be what as it may, the position as it stands on the file is that the evidence on record is wholly unreliable, not worthy of credence and conviction cannot be based on such shaky and unreliable evidence.

Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused Naurang beyond reasonable doubt, as such the accused is entitled to be acquitted and the appeal is liable to be allowed.

Hence the impugned judgment of conviction and sentence dated 16.05.2015 passed by the learned Additional Sessions Judge/Fast Track Court, Mau in Sessions Trial No. 244 of 2009 (State v. Naurang and others) arising out of Case Crime No. 478 of 2009, under sections 363, 366, 376 IPC, police station Madhuban, district Mau is hereby set aside.

Accordingly, the appeal is allowed.

The appellant is in jail. He shall be released forthwith unless wanted in any other case. The provision of Section 437-A Cr.P.C. shall be complied forthwith.

Let a copy of this order be sent to the Chief Judicial Magistrate concerned for compliance of the order.