Ravi Shankar Maurya vs State of U.P.

Ranjana Pandya, J.—1. Challenge in this appeal is to the judgment and order dated 08.09.2015 passed by the learned Special Judge (POCSO)/Additional Sessions Judge, Court No. 5, Varanasi in Sessions Trial No. 06 of 2013 (State v. Ravi Shankar Maurya) arising out of Case Crime No. 356 of 2013, under sections 376, 315 IPC and Section 6 of the Protection of Children From Sexual Offences Act, 2012, Police Station-Maduadeeh, District Varanasi, whereby the accused-appellant has been convicted and sentenced to ten years'' rigorous imprisonment and a fine of Rs. 10,000/- under section 376 IPC and seven years'' rigorous imprisonment and a fine of Rs. 5000/- under section 315 IPC with default stipulation. Out of fine so deposited by the appellant, half of the same was directed to be paid to the victim.

Filtering out the unnecessary details, the case of the prosecution is that a written report was given by the informant, the victim of the case on 02.10.2013 at 3.40 p.m. to the Station Officer, Maduadeeh, district Varanasi to the effect that she is aged about 16 years and her father Ravi Shankar Maurya by threatening and forcibly has been committing rape on her for the last two years. About a year back she got pregnant, which was got aborted by her father. A month ago, when she was going to the place of her grand-mother, on that date also, her father raped her. On the basis of the alleged written report, chik FIR, Ext. Ka-7 was prepared and registered as case crime No. 356 of 2013, under sections 376, 315 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and the same was entered into the GD vide report No. 42 at 3.40 p.m. After the registration of the case, the investigation of the case was entrusted to SI Sanjeev Kumar Mishra, who copied the chik FIR in the case diary and on the pointing out of the victim, he inspected the spot and prepared the site plan, Ext. Ka-5 on 02.10.2013. On the same day, he recorded the statements of the witnesses Nand Kishore and Katwaru Banwasi. On 03.10.2013, he arrested the accused and his statement was recorded. The accused was taken on remand for a period of 15 days. On 08.10.2013, he recorded the statement of chik writer Head Muharrir Sunil Kumar and produced the victim before the court for recording her statement under section 164 Cr.P.C. On 09.10.2013, he perused the statement of the victim recorded under section 164 Cr.P.C. and entered the same in the case diary. On 10.10.2013, he recorded the statements of mother of the victim-Heerawati Devi, Dr. Manju Singh, who has medically examined the victim and pathologist Sanjeev Kumar and submitted the charge sheet against the accused Ravi Shanker Maurya, which he proved as Ext. Ka-6.

In support of its case, the prosecution has examined as many as six witnesses. PW-1 is the victim of the case. PW-2 is Heerawati Devi, the mother of the victim. PW-3 is Dr. Manju Singh, who has medically examined the victim. PW-4 S.I., Sanjeev Kumar Mishra. PW-5 is Sunil Kumar, Head Constable and PW-6 is Dr. R.P. Tiwari.

PW-1, the victim of the case has deposed that on 02.10.2013 at about 12.00-1.00 p.m., her father has beaten her, to which she made a complaint to the Station Officer, Maduadeeh. Thereafter, the Station Officer has got a paper signed after writing something and asked her to give the statement as told, otherwise he will arrest her parents. On seeing the Paper No. 1, this witness has stated that the report written on this paper has not been dictated by her, but the SO himself has written this report and taken her signature. He did not read out the contents of the report, Ext. Ka-1. She was produced before the Magistrate. SO has told her to give the evidence as told by him. SO has directed her to depose that her father has done misdeed with her. She did not make any complaint to the Magistrate that the SO has directed her to make such a statement. This witness has further stated that although her father takes liquor, but he did not beat her. The money earns by her by doing household work was retained by her and her father did not take that money. When she has gone to get her statement under section 164 Cr.P.C. recorded, she was accompanied by SO Maduadeeh and lady constable. Her statement was recorded by a lady Magistrate. This witness has further proved her statement recorded under section 164 Cr.P.C., Ext. Ka-2.

However, this witness was declared hostile and the prosecution was permitted to cross examine her.

PW-2 is Heerawati Devi, the mother of the victim. She has deposed that nothing has happened to her daughter. Her daughter is aged about 20 years. She does not know as to why her daughter has gone to Nari Niketan. She also does not know as to why her husband is in jail. She did not go to Nari Niketan to meet her daughter. Her daughter was also doing the household work. Her husband used to sell vegetables and come back home at 5.00 p.m. She also comes back at 5.00 p.m. Her husband does not take liquor. This witness has further stated that no medical examination of her daughter was conducted and no abortion of her daughter was done.

However, this witness was also declared hostile and the prosecution was permitted to cross examine her.

PW-3 is Dr. Manju Singh. She deposed that she was posted at Kabir Chaura Hospital. She has medically examined the victim, who was brought by Constable 1735, Anjali Singh on 03.10.2013 at 2.40 p.m. The victim was aged about 16 years. She was not aware about her date of birth. She has a cut mark on the left cheek. She has stated that she was got aborted a year ago. This witness has further stated that there was no mark of injury on her body. Doctor further stated that mon''s pubis, labia majora, labia minora, vestibule was normal according to her age. Perineum and vulva were normal. Her vagina admits two finger easily. Vaginal vault, vaginal fornix,, clitoris, posterior fourchett, fossa navicularis, peri urethral, cervix, ectocervix, cervical orifice, anus, rectum, urethra were normal. This witness has further stated that after medical examination, the report was prepared by her in her writing and signature, which she proved as Ext. Ka-3. Slide of vaginal smear of the victim was prepared and sent the same to the pathologist for examination. For the age determination, the victim was sent to the Chief Medical Officer.

After the receipt of the report from the Chief Medical Officer and the pathologist, she prepared supplementary report on 08.10.2013 at 8.00 p.m. As per radiological report, all epiphysis lower end of radius and ulna were fused. All epiphysis and elbow joint are fused and all epiphysis around knee joint are fused. As per the opinion of the Radiologist, the age of the victim was 19 years.

As per Pathologist report, no alive or dead spermatozoa was found. Doctor further opined that rape was committed on her. She was found habitual of sexual intercourse, but no recent intercourse was done with her. PW-3, Dr. Manju Singh has proved her supplementary report as Ext. Ka-4.

PW-5 is Head Constable Sunil Kumar. He deposed that on 02.10.2013 he was posted at police station Maduwadeeh as Head Muharrir. On that date, on the basis of written report, he lodged chik report at case crime No. 356 of 2013, under sections 376 and 315 IPC and Section 6 of POCSO Act against the accused Ravi Shankar Maurya. The original chik FIR is under his writing and signature, which he proved as Ext. Ka-7. This witness has further stated that on the same day, he recorded the registration of the case at 3.40 p.m. in the GD, Ext. Ka 8.

PW-6 is Dr. R.P. Tiwari, Additional Chief Medical Officer. He deposed that on 07.10.2013 he was posted at CMO office where he got the age of the victim ascertained by x-ray plate on the basis of fusion of epiphysis.

The evidence of PW-4 S.I., Sanjeev Kumar Mishra has already been discussed above.

After closing of the prosecution evidence, the statement of the accused-Ravi Shankar Maurya was recorded under section 313 Cr.P.C., in which the accused has denied the occurrence and has stated that he has falsely been implicated in this case. He further stated that a false and fabricated FIR has been lodged by the police and the police scribed other than what has been dictated by the victim.

After hearing the learned counsel for the parties, the learned lower court has convicted and sentenced the appellant as stated in para-1 of the judgment.

Feeling aggrieved, the accused appellant has come up in appeal.

Heard Shri Sikandar B. Kochar, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.

As far as F.I.R. is concerned, it has been scribed by the victim herself stating that her father was raping her continuously for two years. One year prior, she became pregnant by her father, who got her child aborted. One moth prior to the report also he raped her. Thus, since the victim has come with the case of continuous rape, I do not think there is any delay in lodging the F.I.R.

The statement of the victim was recorded under Section 164 Cr.P.C., in which she repeated the F.I.R. Version and stated that her father raped her, but when she appeared before the court, she stated that she did not voluntarily state under Section 164 Cr.P.C., because S.O. accompanied her and she stated what the S.O. told her to state.

The S.O. also threatened her to put her behind the bars, if she did not said what was told to her. This witness has further stated that she did not dictate the F.I.R. infact the S.O. wrote the F.I.R. and got it signed by her. She did not know what was written in the F.I.R. Thus, the witness herself denied the factum of rape by the accused.

P.W. 2 is the mother of the victim and wife of the accused, obviously she would try to save her husband, who is on one side and her daughter is on the other side. But, she has said that neither the pregnancy of her daughter was got aborted nor she was raped by anybody. She has also stated that some people took her daughter and instigated her to lodge false F.I.R. against her father. Thus, the factum of rape is falsified. Medical report also does not support the rape. There is nothing significant in the statement of the I.O.

The accused has denied the occurrence in his statement recorded under Section 313 Cr.P.C. The learned lower court has committed grave illegality in convicting the accused in a no evidence case, just on the basis of the statements of the prosecution witnesses alleged to have been recorded under Section 161 Cr.P.C., due to which the appeal is liable to be allowed.

Thus, the court has been left with the sole testimony of the prosecutrix, which is unreliable, untrustworthy and unworthy of credence. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence, the impugned judgment of conviction and sentence dated 08.09.2015 passed by the learned Special Judge (POCSO)/Additional Sessions Judge, Court No. 5, Varanasi in Sessions Trial No. 06 of 2013 (State v. Ravi Shankar Maurya) arising out of Case Crime No. 356 of 2013, under sections 376, 315 IPC and Section 6 of the Protection of Children From Sexual Offences Act, 2012, Police Station-Maduadeeh, District Varanasi, is hereby set aside.

Accordingly, the appeal is allowed. The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

Let a copy of this order be sent to the trial court concerned for compliance of the order.