- (1.) APPELLANT Raj Kumar Shukla, in Criminal Appeal No. 5029 of 2005, has challenged his conviction u/s 363, 366,376 IPC and implanted sentences of three years RI with fine of Rs. 2000/- on first count, five years RI with fine of Rs. 3000/- on the second count and ten years RI with fine of Rs. 5000/- on the last count, recorded by Additional Session's Judge, Court No. 2, Basti, in Session's Trial No. 56 of 04, State Vs. Raj Kumar Shukla and another, relating to Police Station Kotwali, district Basti. Trial Judge had further ordered that in default of payment of fine appellant shall under go one year further RI on all the counts, and that all his sentences shall run concurrently. By the same impugned judgement, trial Judge had acquitted Mahant alias Hanuman, another accused and consequently informant Sarju Prasad Mishra has challenged acquittal of the said accused Mahant alias Hanuman in connected Criminal Revision No. 723 of 2006. Since both the aforesaid cases arose out of the same impugned judgement and order, they are clubbed together and are being decided by this common order.
(2.) CHARGE against the accused appellant, as was levelled by informant Sarju Prasad Mishra in his 156(3) Cr. P.C. application dated 16.10.2003, Ex. Ka 1, which was filed before Chief Judicial Magistrate, Basti, were that informant was the resident of village Lighara, P.S. Rudhauli, district Basti and was an assistant teacher in Ganesh Sanskrit Primary School, Dakshin Darwaja, Basti and was residing with his family in the house of late Indra Deo Mishra, situated at district hospital crossing, Basti. Appellant Raj Kumar Shukla was his neighbour in the same premises. On 12.10.2003, appellant with his other socio criminises, at 6.30 p.m. kidnapped informant's daughter Km. Suman aged about 15 years from the banks of a nearby bond, when she had gone there to attend nature's call. Vishnu Deo Mishra had seen accused and the abductee near the place of the incident. After return to his house informant located for his daughter but could not find her and then he started searching for her, when aforesaid Vishnu Deo Mishra informed him about the incident. Informant went to appellants house but could not find him and his relatives informed that appellant too was not traceable since evening. Same day informant gave an application at P.S. Kotwali but his FIR was not registered and consequently informant moved another application on 15.10.2003 through registered post to SSP Basti but even then his FIR was not taken down. Relatives of accused were constantly hurling threats to the family members of the informant, and therefore, left without no other option, informant approached Chief Judicial Magistrate, Basti u/s 156 (3) Cr. P.C., as mentioned above, by moving an application Ex.Ka1. Chief Judicial Magistrate, Basti on the said application directed the Station Officer, Kotwali to register and investigate the offence, but not to arrest the accused without his permission. Sub Inspector, Ram Achal Mishra, working as Head Moharrir at P.S. Kotwali, on the basis of Ex. Ka1, registered FIR of crime no. 43 of 03, u/s 363, 366 and 506 IPC by preparing chick FIR Ex. Ka 4 on 19.10.2003 at 8.05 p.m. and corresponding GD entry Ex. Ka 5. Investigation into crime was commenced by Sub Inspector Ram Vilas Yadav, who recorded statements of Head Moharrir Ram Achal Mishra P.W. 5 and Vishnu Deo Misra, sole eye witness, and thereafter conducted spot investigation and prepared side plan Ex.Ka2. On 22.10.2003 victim Km. Suman returned back to her parental house and receiving the said information, P.W.4 came to her at her parental house and recovered her and prepared recovery memo Ex. Ka 3. Thereafter victim was sent for medical examination through lady constable. P.W. 4 also recorded 161 Cr.P.C. statements of victim Km. Suman Mishra and witnesses of recovery memo Shyam Prakash and Hari Shanker Mishra. Further investigation into the crime was conducted by SI P.K. Maurya P.W. 6, who copied medical examination report of the victim and handed over victim to her parent's custody under the orders of the court. He copied 164 Cr.P.C. statement of the victim. On 8.11.2003, P.W. 6 interrogated appellant and penned down his statement. On 20.11.2003, he recorded 161 Cr.P.C. statement of witness Badri Vishal, Smt. Geeta Devi (mother of victim) and that of victim herself. Subsequently, I.O. recorded investigatory statement of Manish Upadhyay. After some days, under the orders of C.J.M., he recorded 161 Cr.P.C. statement of co-accused Mahant @ Hanuman. Thereafter I.O. interrogated Asha Devi, aunt(Bua) of appellant and concluding investigation, charge sheeted appellant, as well as co-accused Mahant @ Hanuman, vide charge sheet no. 311 of 2003, under sections 363, 366, 376, 506 I.P.C. vide Ext. Ka-6. Medical examination of victim Km. Suman Mishra, P.W. 2 was conducted on 23.10.2003 by Dr. Alka Shukla, P.W.7, M.O., Women Hospita, Basti at 12.35 p.m., who was brought to her by lady constable C.P. No. 626 Sarita Singh. Doctor had noted following facts in her primary medical examination report Ext. Ka-7:- "Examined police medico legal case Km. Suman Mishra D/o Sri Sarju Prasad Mishra R/o Lighara, P.S. Rudhauli, Basti on 23.10.2003 at 12.35 p.m. B/B- Sarita Singh CP 626 on matter of UMSUR= M/I- A Black mole-1.5 cm below lower lip. General 4/5 feet wt. 32 kg, teeth 13/14 gest normal. No external injury seen. On examination axillary and pubic hair well developed. Breast not fully developed. Avera dark brown in colour, Valva looks normal lebia majora and minora not fully developed. Hymen old, healed seen but vagina admit two finger easily. Vaginal smear taken and send to pathological examination. For age determination send to radiological examination for left ankle, rt. wrist elbow, knee joint and radiological opinion of age. EMO Women Hospital, Basti. 23.10.2003." Dr. R.A.L. Gupta, Senior Radiologist P.W. 8 had got the victim X-rayed under his supervision on 24.10.2003 vide X-ray Registration No. 411041114112 for her elbow joint, right knee joint, right wrist etc. and had given his report Ext. Ka-10, contents of which are noted herein below:- "Suman Mishra, D/o Sarju Prasad, R/o Lighara, P.S. Rudhauli, District Basti. X-rayed No. 411041114112 Dt. 24.10.2003 A.M.- 106/96 Ref. By Women Hospital, Basti. B/B- PC Sarita Singh CP No. 626 P.S. Kotwali. M.I.- Bm on chin 1-5 cms lower lip. Part X-red- Rt. Wrist, Rt. Elbow, Rt. Knee. Rt. elbow joint- Epiphysis and the elbow joint are fused. Rt. knee joint- Epiphysnal fusion and the knee joint is started but not completed. Rt. wrist joint- Epiphysis at the lower end of radius and ulna is not fused. Radiologicaly the age of the girl appears to be 16 years. Radiologist- District Hospital, Basti." P.W. 8 further proved the X-ray plate as material Ext. 1. In the estimation of radiologist also, victim was about 16 years of age. Pathologist report regarding victim vide Ext. Ka-9 dated 23.10.2003 prepared by EMO, Women Hospital, Basti indicated that no spermatozoa was seen in the victim's vaginal smear. On 27.10.2003, PW7, after receipt of X-ray report and plate, prepared supplementary report Ext. Ka-8 and opined that the radiological age of the victim appeared to be about 16 years. On the basis of charge sheet Ext. Ka-6, CJM, Basti registered case no. 507 of 2004, State Vs. Raj Kumar Shukla on 3.2.2004 taking cognizance of the offence and finding the offence triable by Session's court, vide committal order dated 12.2.2004, committed case of both the accused Raj Kumar Shukla and Mahant @ Hanuman to Session's court, where it was registered as S.T. No. 56 of 2004, State Vs. Raj Kumar Shukla and one another on 24.2.2004. Additional Session's Judge, F.T.C. Court No. 1, Basti, in the aforesaid S.T. charged both the accused for offences under sections 363, 366 I.P.C. Appellant was additionally charged under section 376 I.P.C. on 10.3.2004. Both the accused denied the charges and claimed to be tried and hence to establish their guilt, prosecution tendered in all eight witnesses during their trial, out of whom informant Sarju Prasad Mishra P.W. 1, victim Km. Suman Mishra P.W. 2 and Manish Upadhyay P.W. 3 were the fact witnesses. Prosecution formal witnesses included first I.O. Ram Vilash Yadav P.W. 4, head moharir Ram Achal Mishra P.W. 5, second I.O. P.K. Maurya P.W. 6, Dr. Alka Shukla P.W. 7 and radiologist Dr. R.A.L. Gupta P.W. 8. In their statements under section 313 Cr.P.C., both the accused denied prosecution charges and pleaded defence of their false implication. They in their defence however, did not examine any witness.
(3.) ADDITIONAL Session's Judge, Court No. 2, Basti after examining facts and circumstances of the case, critically appreciating evidences, both oral and documentary, tendered before it, held that prosecution had failed to establish it's charge against Mahant @ Hanuman and, therefore, conferred benefit of doubt and acquitted him. It however concluded that charged offences were established to the hilt beyond any doubt against appellant Raj Kumar Shukla and, therefore, convicted him for all those offences under sections 363, 366, 376 I.P.C. and implanted sentences, which has already been mentioned in the opening paragraph of this judgment by passing impugned judgment of conviction and sentence, which is now been questioned by the convicted accused appellant in the instant appeal. Since, informant was aggrieved by acquittal of Mahant @ Hanuman and, therefore, he filed connected criminal revision against acquittal. On the above background facts, I have heard Sri Haridwar Singh, learned counsel representing both the accused Raj Kumar Shukla and Mahant @ Hanuman and Sri J.P. Mishra, learned counsel for the informant as well as Sri A.P. Singh, learned AGA for the State. Criticizing the impugned judgment of conviction and sentence, learned counsel for the appellants submitted that the entire background facts along with evidences of victim indicate that she was a consenting party to the entire episode and she escaped from her parental house on her own volition and stayed with the appellant for about nine days and when the FIR was lodged, she returned back to her house and leveled false charge of kidnapping, abduction and rape against the appellant. It was further submitted that victim P.W. 2 is not a reliable witness as she had embellished her testimony from what she had stated during investigation before the I.O. Next submission is that informant P.W. 1 is not an eye witness of the incident, which was divulged to him by Vishnu Deo Mishra but very surreally, prosecution could not muster courage to examine said Vishnu Deo Mishra as a witness and, therefore, prosecution story that the incident was informed to the informant P.W.1 by Vishnu Deo Mishra remains an unsubstantiated allegation. It is further submitted that the entire deposition of P.W. 1 in respect of the incident is incredible as it is hearse and, therefore, cannot be relied upon. It is next submitted that appellant was a tutor of the victim since last two years during course of which, because of infatuation, physical relationships between them developed because of which P.W. 2 had eloped from her parental house along with the appellant and, thereafter cooked up and manufactured a false story. It was further submitted that according to the own showing of P.W. 1, his FIR was not registered on 12.10.2003 and yet informant waited for another couple of days and filed his application Ext. Ka-1 only on 16.10.2003 after a gap of three days. It is therefore, submitted that the only evidence against the appellant remains is that of victim P.W.2.;