Rajesh Kumar vs State Of Uttarakhand

Lok Pal Singh, J.

Criminal appeal is directed against the judgment and order dated 19.03.2016 passed by the learned Additional Sessions Judge, Vikas Nagar, District Dehradun, in Sessions Trial No. 83 of 2015, State Vs. Rajesh Kumar, whereby the accused-appellant was convicted under Sections 366, 376, 344, 370, 323 of I.P.C. and the one punishable under Section 5/6 of Immoral Traffic (Prevention) Act. The convict-appellant was sentenced to undergo rigorous imprisonment for five years along with a fine of Rs. 5,000/- under Section 366 of IPC. He was further sentenced to ten years rigorous imprisonment along with a fine of Rs. 25,000/-under Section 376 of I.P.C.; one year imprisonment and a fine of Rs. 500/- under Section 344 of I.P.C.; six months imprisonment along with a fine of Rs. 500/- under Section 323 of I.P.C. and seven years rigorous imprisonment along with a fine of Rs. 5,000/- under Section 370 of I.P.C. The convict-appellant was also directed to undergo three years rigorous imprisonment along with a fine of Rs. 5,000/- under Section 5 of Immoral Traffic (Prevention) Act and seven years rigorous imprisonment along with a fine of Rs. 5,000/- under Section 6 of Immoral Traffic (Prevention) Act. It was also directed that out of the entire amount of fine so imposed upon the convict, a sum of Rs. 25,000/-shall be paid to the victim as compensation. All the sentences were directed to run concurrently.

2) Prosecution story, in brief, is that victim/ complainant lodged a complaint (Ext. A-1) on 24.03.2015, at 05:30 P.M., with P.S. Sahaspur, stating therein that in the month of October 2014, accused-appellant Rajesh enticed the victim/complainant away to his house in Lakhanwala on the false pretext of marrying her and established physical relations with her against her wish. Thereafter he declined to marry her. One day, on finding appropriate opportunity, victim/complainant succeeded in escaping from the house of the accused-appellant and thereafter got married with 'X' (name not disclosed), resident of Uttar Pradesh. It was further stated in the complaint that on coming to know the fact that the police is searching her, the victim/complainant herself approached the P.S. Sahaspur and lodged the complaint against the appellant Rajesh.

3) On the basis of complaint (Ext. A-1), case crime no. 70 of 2015, under Sections 366, 376(2)d of IPC was lodged against the accused-appellant. Investigation of the case commenced. The I.O. got the victim medically examined. Thereafter, the I.O. got recorded the statement of the victim under Section 164 of Cr.P.C. On completion of investigation, charge sheet was submitted against the accused-appellant for the offences punishable under Sections 366, 376(2)d, 344, 370, 323 of IPC and one punishable under Section 5/6 of the Immoral Traffic (Prevention) Act.

4) The case was committed to the court of Sessions for trial. The trial court, after hearing the prosecution and the defence, framed charge of offences punishable under Sections 366, 376, 344, 370, 323 of IPC and the one punishable under Section 5/6 of the Immoral Traffic (Prevention) Act. The accused pleaded not guilty and claimed to be tried. On this, the prosecution got examined PW1 (victim / complainant of the case); PW2 S.I. Pratap Singh (who recovered the victim), PW3 Dr. Vandana Tripathi (who medically examined the victim); PW4 Constable Raina Rawat (who took the victim for medical examination) and PW5 Harish Mehra (Investigating Officer of the case).

5) The entire oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. regarding which he denied the same as false and stated that he is innocent. No evidence in defence was adduced on behalf of the accused persons. The trial court, on completion of the sessions trial, found accused-appellant guilty of all the offences for which he was charged and convicted him accordingly.

6) The victim narrated the prosecution version of the F.I.R in her statement made under Section 164 of Cr.P.C. Victim was medically examined on 25.03.2015 at Government Hospital, Prem Nagar, District Dehradun. No injury was found by the Medical Officer on the private part or upon the person of the victim.

7) PW1 victim/complainant, who has been the star witness of the prosecution, did not support the prosecution story. In her cross-examination, victim has stated that she did not remember when she met the accused-appellant for the first time. She has further admitted that she could probably have met the accused-appellant in October 2014. When the accused-appellant brought her about one and a half month's ago, she fell in love with him. She has further stated that she stayed with the accused-appellant for 2-3 months. She further stated that she has not married with the accused-appellant.

8) PW2 S.I. Pratap Singh, has admitted the fact that a missing report was lodged by the accused-appellant Rajesh with P.S. Sahaspur, stating therein, that his wife (name not disclosed) is missing and despite frantic search being made, her whereabouts are not traceable. PW2 recovered the missing person (victim) on 26.02.2015 from Saharanpur. The victim disclosed to PW2 that appellant Rajesh used to harass her and did not solemnize marriage with her, as promised, and now she had married with 'X'. On 24.03.2015, the victim along with 'X', lodged an FIR with P.S. Sahaspur against the appellant Rajesh with the allegations that the victim was sexually abused by the appellant on the false pretext of marriage.

9) Mr. M.S. Tyagi, learned Amicus Curiae for the appellant would submit that the prosecution has failed to prove its case against the appellant. It is further contended that the cross-examination of the victim would reveal that the victim/complainant, who is the sole witness of the prosecution case, has not supported the prosecution case at all.

10) Learned Amicus Curiae appearing on behalf of the appellant would further submit that since the victim/complainant ran away from the house of appellant Rajesh after marrying him and re-married with 'X' and when she was recovered by the police from Saharanpur she concocted said story in order to implicate the appellant in a false case of rape so that the appellant could not pursue his case against 'X' (alleged husband of the victim/complainant) for adultery and also to save him from being prosecuted for the offence punishable under Section 498 of IPC. Therefore, it is a case of false implication of the appellant in such a heinous crime.

11) Per contra Mr. Sandeep Tandon, Deputy Adovcate General for the State has submitted that the prosecution has proved its case against the appellant beyond reasonable doubt.

12) Having heard learned counsel for the parties and on perusal of the evidence adduced by the victim / complainant and PW2 S.I. Pratap Singh, it would reveal that the appellant himself lodged a missing report with the police in respect of his wife and the victim/complainant in connivance with 'X' has set up a story with the intention to falsely implicate the appellant in such a heinous crime. However, PW2 has admitted in his cross-examination that he had not enclosed the missing report on the record of case crime no. 70 of 2015.

13) PW3 Dr. Vandana Tripathi, the Medical officer who medically examined the victim, has proved the medical report (Ext. A-3) as also supplementary report (Ext. A-4). According to the Medical Officer, there was no recent mark of injury found on the private part or on the person of the victim. The victim was found pregnant during medical examination regarding which she has told PW3 that she had now married to 'X' and is living with him.

14) It seems that PW2 has failed to discharge his duty properly and impartially for the reasons best known to him. Due to such lacuna on the part of PW2, the investigation did not reach to its logical conclusion in the absence of fair and impartial investigation. In Dayal Singh and others vs. State of Uttaranchal, (2012) 8 Supreme Court Cases 263, their Lordships of the Hon'ble Apex Court have held that investigation being defective and motivated, will not give the benefit to the accused to the extent of his acquittal. Since PW2 S.I. Pratap Singh has failed to discharge his official duties properly and impartially which ultimately leads to the conviction and sentencing of the appellant in such a heinous crime, an enquiry is required to be conducted against PW2 Pratap Singh, the then Sub Inspector of P.S. Sahaspur, District Dehradun.

15) The prosecution has utterly failed to prove its case through any of the prosecution witnesses. The conviction of the accused-appellant is based only on the solitary evidence of the victim/complainant, who herself has not supported the prosecution case in her testimony. The testimony of the victim/complainant is not trustworthy. The learned Addl. Sessions Judge also did not discharge his duties in accordance with law and without considering the prosecution evidence against the appellant has convicted and sentenced him.

16) The charge of rape is serious in nature. It is the bounden duty of the prosecution to prove its case beyond reasonable doubt against the accused-appellant in respect of the charge so framed against him. In the present case, on a perusal of the evidence brought on record, I am of the considered view that the prosecution has miserably failed to prove the charge of offences, for which the accused-appellant was charged, beyond reasonable doubt.

17) In a criminal case, it is the onus of the prosecution to complete the missing links in chain of evidence of solitary witness to bring home the guilt of the accused. On careful scrutiny of evidence adduced by the prosecution witnesses, I have no hesitation in saying that the prosecution has miserably failed to complete this missing link so as to prove its case against the appellant beyond any shadow of doubt.

18) In view of the above discussion, the appeal is allowed. Conviction of appellant Rajesh and sentence awarded by the trial court against him under Sections 366, 376, 344, 370, 323 of IPC and one under Section 5/6 of the Immoral Traffic (Prevention) Act is hereby set aside. He is acquitted of the said charges. Appellant is in jail. Appellant be set at liberty forthwith if not required in connection with any other crime.

19) Let a copy of this judgment along with the lower court record be sent to the court below for ensuring compliance.