Author: Himanshu Sharma, 1st year student at Amity university, Rajasthan.
Date of decision: 14th January, 2011
Bench: Aftab Alam, R.M. Lodha
Original Copy: View
Statutes involved: Indian Penal Code
Background of the case:
- In the given case “State of U.P” was an appellant and “Chhoteylal” was a respondent.
- On 19th September 1989 the prosecutrix (name withheld) went to relive herself in the evening, on the way Ram Kali (A-3) followed her.
- When she was returning and reached near the plot of one Vijai Bahadur, Chhotey Lal (A-1) and Ramdas (A-2) came from behind; Chhoteylal caught hold of her and when she raised alarm, Chhoteylal showed fire-arm to her and gagged her mouth. Then all three of them brought the prosecutrix towards the road.
- Then they took the prosecutrix to the village Sahora. She was kept in the house of Saroj Pandit and Girish in the village Sahora on the night of 19th September 1989. on the next day that is September 20, in the wee hours A-1 and A-2 took the prosecutrix in a bus to Shahajahanpur and they kept the prosecutrix there in the rented room for few days.
- During the period when they kept the prosecutrix in Shahajahanpur, Chhoteylal (A-1) forcible committed intercourse with the prosecutrix. Always A-1 gagged her mouth and threatened her whenever prosecutrix asked for return to her house.
- Between all this, Rampal- brother of the prosecutrix made a complaint to the superintendent of police, at Hardoi on 28 September 1989. Based on the complaint of Rampal, the First Information Report (FIR) was registered on September 30, 1989.
- The prosecutrix was recovered from the Shahabad- Pihani Road near Jalalpur Culvert by police on 13 October 1989, same day itself she was sent for medical examination to the women hospital, Hardoi there she was examine by Dr. Shakuntala Reddy.
- Ram Manohar Misra to whom the investigation of the case was entrusted then took steps for determination of the age of the prosecutrix as advised by the doctor and sent her for X-ray examination.
- Chhoteylal (A-1) was arrested on 2 December 1989, on the complaint of investigation A-1 was charge sheeted for the offences punishable under Section 363, 366, 368 and 376 of IPC; A-2 was charge sheeted under section 363, 366 and 368 of IPC and A-3 under Section 363 and 366 of IPC.
- The prosecutrix was produced before the Judicial Magistrate I, Hardoi, on 17 October 1989, where under Section 164 Cr.P.C her statement was recorded by the Judicial Magistrate.
- According to the prosecution there are five witnesses in support of its case, namely, Rampal (PW-1) – Complainant, Prosecutrix (PW-2), Ram Manohar Misra (PW-3) – Investigating officer, Subhash Chandra Misra (PW-4) – head constable and Dr. Shakuntala Raddy (PW-5).
- During the time of judgement, A-2 had died and the trial abated as against him. The ⅲ Additional session Judge, Hardoi vide his judgement dated 5 September 1990 acquitted A-3 because the prosecution was not able to establish any case against her. However, the ⅲ Additional session judge held that the prosecutrix was about 17 years of age at the time of occurrence of crime and found A-1 guilty under section 363, 366, 368 and 376 of Indian Penal Code on the basis of the prosecution evidence and sentenced him to undergo 7 years rigorous imprisonment under section 376 of IPC and the different sentences other offences which were ordered to run concurrently.
- The judgement passed by the ⅲ Additional session judge, Hardoi was challenged by A-1 before the Allahabad High court, Lucknow. The High court vide its judgement dated 11 March 2003 reversed the judgement of the trail court and acquitted A-1
- While acquitting A-1, the High Court gave three reasons.
- First, kidnapping took place on 19 September 1989 but the report of the occurrence was lodged after ten days and there was no reasonable and plausible explanation as to why the report could not be lodged promptly and why it had been delayed for ten days.
- Second, according to medical evidence, the prosecutrix was found to be 17 years of age and she could be even of 19 years of age at the time of occurrence.
- Third, she was habitual to sexual intercourse and no internal or external injury was found on her body.
- The State of Uttar Pradesh is logged appeal, by special leave, because the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow reversed the judgment of the trial court and acquitted the respondent.
- The appeal is, accordingly, and the judgment of acquittal of A-1 passed by the High Court of Judicature at Allahabad, Lucknow Bench, in Criminal Appeal No. 484 of 1990 is set aside and the judgment passed by the III Additional Sessions Judge, Hardoi is restored. The respondent shall now surrender within two months from today to serve out the remaining sentence as awarded by the trial court.
- We have also examined the evidence of prosecutrix, her brother and the statement of A-1 under Section 313 Cr.P.C. to satisfy ourselves whether there was likelihood of false implication or motive for false accusations. Except the bald statement of A-1 under Section 313 Cr.P.C. that he has been falsely implicated due to enmity, nothing has been brought on record that may suggest that the prosecutrix had motive to falsely implicate him. The circumstances even do not remotely suggest that the prosecutrix would put her reputation and chastity at stake for the reason stated by A-1 in the statement under Section 313 Cr.P.C. that a case was pending between A-1 and one Sheo Ratan. In my view, the evidence of the prosecutrix is reliable and has rightly been acted upon by the trial court.
- The High Court reversed the judgment of the trial court without discussing the deposition of the witnesses as well as all relevant points which were considered and touched upon by the trial court. We are satisfied that the judgment of the High Court cannot be sustained and has to be set aside.