Udai Raj (D) and Another vs State of U.P.

N.K. Mehrotra, J.—This is an appeal u/s 374(2), Cr. P.C. against the judgment and order dated 1.5.1989 passed by Vth Additional District and Sessions Judge, Barabanki in Session Trial No. 344 of 1987 convicting the Appellants, deceased Udai Raj under Sections 376 and 366, I.P.C. and sentencing him to 6 years R.I. and a fine of Rs. 2,000 and convicting the Appellant, Telai u/s 376, I.P.C. and sentencing him 6 years R.I. and a fine of Rs. 2,000.

According to prosecution story, Raj Kumar, brother of prosecutrix Km. Nagina lodged an F.I.R. on 27.1.1985, P. S. Ramnagar stating that his sister Km. Nagina, aged about 14 years, was enticed away by accused Udai Raj on 27.11.1984 at about 11 p.m. from house at Aganpur Kota, Chamrahi, police station Ramnagar, district Barabanki. His sister had carried away the valuable ornaments of his house. It is alleged that accused, Udai Raj used to visit his house before the occurrence. Witnesses Mansa Ram and Samharu had seen the accused Udai Raj going in the company of his sister. He came to know that accused, Udai Raj was keeping his sister at village Bhagoleypur within the circle of police station Jarwal Road, district Bahraich.

A crime case was registered on the report lodged by Raj Kumar and investigation was entrusted to Sub-Inspector, Arjun Singh. Sub-Inspector, Arjun Singh recorded the statement of the complainant at police station and visited the house from where the prosecutrix had gone away. Statement of other witnesses were recorded and site plan was prepared. Accused Udai Raj surrendered on 19.2.1985. He was interrogated by Investigating Officer, Udai Raj was taken to village Bhikampurwa, police station, Karnailganj, district Gonda. There he came to know the prosecutrix Km. Nagina had been taken away by accused, Telai to the Constable Dujai Ram, who happened to be his relation and he is posted in Gonda. Constable Dujai Ram was interrogated, but no clue of prosecutrix was found. After that, investigation was entrusted to Sub-Inspector, Ashok Tewari.

In the meantime, when prosecutrix was recovered by Sub-Inspector, Kailash Nath Singh along with accused, Telai Ram, who was arrested on 10.4.1985. On 19.4.1985, the Investigating Officer recorded the statement of prosecutrix Km. Nagina. A site plan of the plan of recovery was prepared with the help of Sub-Inspector, Kailash Nath Tewari. Accused, Munni Lal was arrested on 10.6.1988.

Prosecutrix Km. Nagina was medically examined by Dr. C. V. Diwan, who was posted in District Hospital, Barabanki on 11.4.1985. The Medical Officer reported that there was no mark of injury on any part of the body of the prosecutrix. She was habitual of sexual intercourse and she was about 19 years of age.

After completing the investigation the charge-sheet was submitted against the three accused, namely, Udai Raj, Telai and Munni Lal. After committal to the Court of Session, the accused Udai was charged under Sections 376 and 366, I.P.C., accused Telai was charged u/s 376, I.P.C. and accused, Munni Lal was charged u/s 366, I.P.C.

Accused pleaded not guilty. Accused, Telai has made statement that Nagina was his wife, she married with him out of her free will and consent. Prosecution examined Km. Nagina, P.W. 1, Raj Kumar, P.W. 2, Ram Samharu, P.W. 3, Dr. C. P. Diwan, P.W. 4, Sub-Inspector, Kailash Nath Singh, P.W. 5, Sub-Inspector, Arjun Singh, P.W. 6, Sub-Inspector, Ashok Tewari, P.W. 7, Kailash Nath Shastri, Constable, P.W. 8. The accused also examined R. K. Mehrotra, Special Marriage Officer, D.W. 1, who also proved the marriage of the prosecutrix with Telai.

After relying on the prosecution evidence the learned Additional District and Sessions Judge acquitted the accused, Munni Lal and convicted accused, Udai Raj and Telai as aforesaid.

Accused, Udai Raj and Telai preferred an appeal against this judgment. During pendency of appeal, accused Udai Raj died and the appeal filed by him stands abated.

On the date of hearing in the appeal, accused Telai neither appeared himself, nor through his counsel. Since it is an appeal of the year 1989, I heard the learned Counsel for the State on merit, in view of the decision of the Hon''ble Supreme Court in Bani Singh and ohters Vs. State of U.P., , I perused the evidence against Appellant, Telai.

F.I.R. has been lodged by P.W. 2, Raj Kumar, who has proved it. The incident is said to have taken place on 27.11.1984 whereas the F.I.R. was lodged on 27.1.1985. There was no convincing explanation for delay of two months on lodging the F.I.R. Prosecutrix was recovered on 10.4.1985 as per Ext. Ka-2. But her statement was not recorded on the same day by the Investigating Officer. The statement of the prosecutrix was recorded on 19.4.1985. There is no explanation for not recording the statement of the prosecutrix on the very same day of recovery.

P.W. 4, Dr. C. P. Diwan has proved the medical report, Ext. Ka-3, which goes to show that there was no external or internal injury on the person of prosecutrix, who was examined on 11.4.1985. According to the opinion of Dr. C. P. Diwan the prosecutrix is habitual of sexual intercourse and she was of 19 years age. The Medical Officer has also stated that her age can vary by one or two years more than the assessed age. It means that the prosecutrix can be of 20 or 21 years of age.

Out of the prosecution witnesses examined in this case, the only evidence against the accused, Telai is the statement of prosecutrix Km. Nagina and the recovery of Km. Nagina along with Telai. The statement of prosecutrix is not worth reliance and she appears to be a consenting party, because she had the opportunity to oppose the company of Telai when she was being taken away by Telai. Further, the evidence of Special Marriage Officer, Shri R. K. Mehrotra, D.W. 1 goes to show that Nagina had married with Telai on 26.2.1985.

I am not recording the finding of the validity of the marriage which is not required in this trial. But this fact that Km. Nagina married with Telai before the Marriage Officer is sufficient to infer her consent for remaining in the company of Telai.

Since, Km. Nagina was a consenting party and she had married with Telai on 26.2.1985 there was nothing unnatural when she was found with Telai at the time of recovery. After seeing the age of the prosecutrix and after taking into consideration the fact that she was a consenting party in going away and remaining in the company of Telai and in doing intercourse, I am of the opinion that the charge of rape against the accused is not proved beyond all shadow of doubt.

In view of the above, the appeal is allowed. The impugned judgment and order dated 1.5.1989 passed by Vth Additional District and Sessions Judge, Barabanki in Sessions Trial No. 344 of 1987 convicting and sentencing the Appellant Telai u/s 376, I.P.C. is hereby set aside. Accused Telai is on bail, his bail bonds are cancelled and sureties are discharged. The appeal filed by Udai Raj stands abated.

Let a copy of this judgment along with record be sent to the Court concerned for compliance.