SHAKEEL Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by Shakeel and connected Criminal Appeal No. 736 of 2013, under Section 374(2) Cr.P.C., has been filed by Akhilesh Kumar Verma against judgment of conviction and sentence made therein vide judgment and order dated 15.01.2013, passed by Additional District & Sessions Judge, Court No. 9, Pilibhit in Sessions Trial No. 496 of 2010, arising out of Case Crime No. 1281 of 2010, under Sections 363, 366, 376 I.P.C., Police Station Puranpur, District Pilibhit, whereby both the appellants Shakeel and Akhilesh Kumar Verma have been convicted and sentenced with ten years rigorous imprisonment and fine of Rs.10,000/- under Section 376 I.P.C., three years rigorous imprisonment and fine of Rs.2,000/- each under Section 366 I.P.C. and two years rigorous imprisonment with fine of Rs.2,000/- each under Section 363 I.P.C. with a condition that in case of default of payment of fine, they will have to undergo additional imprisonment of three months. There was a direction for concurrent running of sentences.

(2.) The memo of appeal of convict-appellant Shakeel contends that trial court failed to appreciate facts and law placed on record. Specific allegation of rape was levelled against co-convict Akhilesh Kumar Verma, whereas without there being any evidence on record, convict-appellant Shakeel has also been convicted and sentenced, as above. Prosecutrix resided for 30 days with co-convict Akhilesh Kumar Verma at Lucknow and for all 30 days she kept mum. The prosecutrix was proved to be of 17 to 18 years of age. She never made any allegation against convict-appellant Shakeel in her statement recorded under Section 164 Cr.P.C. Though, during trial there was variation in her statement. Regarding Shakeel the role was specific that he handed over her to Akhilesh. Hence, for convict-appellant Shakeel, the accusation levelled was not proved beyond doubt and trial Judge failed to appreciate facts and law placed before it, thereby conviction and sentence is result of perversity. The convict-appellant Shakeel had no motive for kidnapping victim or seducing her or having extortion regarding sexual assault.

(3.) Memo of appeal of convict-appellant Akhilesh Kumar Verma contends that trial court has erred in law by convicting appellant without appreciating the facts and circumstances of case, available on record, because prosecution failed to prove its case beyond reasonable doubt. The FIR was of this fact that Shakeel took away prosecutrix and this was witnessed by PW-2. The wife of informant had seen several times conversation in between prosecutrix and Shakeel, who were in love affairs. Perusal of medico legal report as well as testimony of Medical Officer reveals that there was no specific opinion regarding commission of rape. Because no dead or alive spermatozoa were found in vaginal smear. There was material contradiction in the statement recorded under Section 164 Cr.P.C. as well as testimony of prosecutrix recorded during trial. In statement recorded under Section 164 Cr.P.C., no accusation of rape was there. It was subsequently developed, while being examined during trial. Hence, this conviction and sentence was against evidence on record.