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Rajendra @ Chatkna v. State Of U.P. - JAIL APPEAL No. - 1079 of 2006 [2007] RD-AH 16444 (8 October 2007)

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Court No. 48

Criminal Jail Appeal No.1079 of 2006

Rajendra alias Chatkna

son of Ram Chandi, aged about 26 years

occupation Labourer

resident of village Fatehpur

Police Station Zareefabad

district Budaun................................. Appellant-accused

(under detention)


State of U.P..................................... Respondent

Hon'ble B.A. Zaidi, J.

1.The appellant stood charged under sections 363, 366 and 376 of Indian Penal Code by Additional Sessions Judge (F.T. Court No.4) Budaun (in Sessions Trial No. 126/04) and who by judgment and order dated 10.2.2005 held him guilty under sections 366, 376 I.P.C. and sentenced him to undergo 10 and 7 years rigorous imprisonment, respectively. Both the sentences were to run concurrently.

2.According to prosecution, on 15.5.2003 at one O'Clock appellant-accused along with his brother Bhola, uncles Chandrapal and Rajpal and two others Lakhpat and Sadhu in village Khayali Ki Marahiya, Police Station Sahsawan barged into the house of complainant P.W. 3 Radhey Shyam, and took away forcibly his 14 year old unmarried daughter P.W. 1 Km. Brahma against her wishes. This act of the accused and his co-horts was resisted by the wife of the complainant Rajwati and his father, who were given a beating by the accused. The incident was seen by P.W. 4 Gajraj and one Dal Chand, who had arrived at the spot after hearing the noise. P.W. 3 Radhey Shyam had gone to Agra on the day of occurrence and returned three days thereafter. He says he went to lodge a report at Police Sahsawan but they refused to entertain his complaint. Thereafter, he approached a lawyer and with his help gave an application on 26.5.2003 to Sub-Divisional Magistrate Sahaswan, who directed for registration of his F.I.R. to Police Sahaswan, who on 2.6.2003 lodged the F.I.R. (Case Crime No. 200 of 2003) and registered a case, under sections 363, 366, 376 I.P.C. against the six accused, noted above.

3. The investigation of the case was assigned to one P.W. 7 S.I. Naubat Singh. The Investigation Officer arrested the accused-appellant Rajendra alias Chatkna and produced prosecutrix PW 1 Km. Brahma and got her statement recorded under section 164 Cr.P.C. He, thereafter, went to the place of occurrence on 5.6.2003 prepared site plan, recorded the statements of the witnesses.

4.The prosecutrix (PW 1) had been taken by the Police on 30.5.2003 to District Female Hospital, Budaun for medical examination where on her physical examination, P.W. 8 Dr. Rama Manral found no mark of injury on her body or on her private parts, her hymen old torn and healed, vagina admitted two fingers easily and no bleeding from the vagina. On her advise, an x-ray was performed on 31.3.2003 for determination of her age by P.W. 2 Dr. M. P. Gangwar. On basis of the x-ray report, the doctor (P.W. 8) found her below 17 years but above 16 years of age. The Investigation Officer, in result of the investigation, exonerated the other five and filed a charge sheet against the accused-appellant.

5. To prove its case, the prosecution examined in its evidence, PW 1 prosecutrix Km. Brahma Devi, PW 2 Dr. M.P. Gangwar, Radiologist, PW 3 father of the prosecutrix Radhey Shyam, PW 4 Gajraj, PW 5 Dr. Nita Chandel, PW 6 Constable Jagat Singh, PW 7 Investigation Officer S.I. Naubat Singh and PW 8 Dr. K.R. Manral.

6. The case of the accused under section 313 Cr.P.C. was of plain and simple denial. He produced no evidence in his defence.

7. The Trial Sessions Judge found the evidence of the prosecution dependable and held the accused guilty and sentenced him, as noted above. This is what brought the accused here.

8. Heard Sri Azhar Hussain, Amicus Curiae for the appellant, and Sri R.K. Shukla, Additional Government Advocate for the State.

9.P.W. 1 prosecutrix Brahma Devi in her statement before the court stated that on 15.5.2003, six accused, Chatkna, his brother Bhola, Chandrapal and Rajpal sons of Lakman, Lakhpat and Lala Ram barged intp her house around one O' Clock in the night and took her forcibly along with them against her will. They were resisted by her mother Rajwati and the grand-father, to whom the accused thrashed. Accused-appellant took her to Katari of Ganga, where he kept her for two days, thereafter, to his brother's house. Accused Chatkna, Chandrapal and Lalaram indulged in sexual intercourse with her and she was forcibly made to marry against her will with accused Chatkna in the district of Etah. She was detained by accused- appellant for about 15 days and ultimately on pressure from the complainant's side, she was rescued by the Police.

10.The case rests primarily on the testimony of the prosecutrix. Though, there is one more witness P.W. 4 Gajraj, who alleges himself to be a neighbour and has said to come to the house of the prosecutrix on hearing noise. He has narrated in his evidence, what is mentioned in the F.I.R. about six persons having come in the house of the prosecutrix and having physically assaulted the grand-father and the mother of the prosecutrix and about forcibly taking away the prosecutrix. The prosecutrix has herself given a similar statement, as already noted above.

11.The prosecution version is replete with improbabilities and it is not possible to accept the entire prosecution story, as has been given out and rightly urged by the counsel for the appellant.

12.The very foundation of the case is laid on an incident, which is highly improbable and wholly imparlatable . The reference is to the occurrence of 15.5.2003 at one O'Clock in the night, when according to the prosecution version, as contained in the F.I.R., as also in the statement of the prosecutrix and P.W. 4 Gajraj. The whole story about 6 persons having forcibly entered into the house and forcibly having taking the girl, is unacceptable.

13. This is not the way, the things happened, and it is hardly possible to believe that 6 persons descended at the house and forcibly took away the girl, while the residents of the village did not rise to protect the honour of a maiden. It is in evidence that whole area is thickly populated. Only one person P.W. 4 Gajraj came and he did nothing. This indicates that the girl was not taken away in the manner, as suggested by the prosecution, and there is an imminent possibility that she herself went with the accused and father Radhey Shyam (P.W. 3) later invented this story.

14.The conduct of the girl, subsequent to her going with the accused, speaks volumes about her attitude and gives a clear indication that she went on her own free will and not under threat or coercion.

15.This will become apparent from the fact that the girl says that she was shifted to many places while she was with the accused, but nowhere did she raise any alarm, and at no place, did she tried to escape. This indicates that she was there with her consent. She is about 16 according to the medical evidence and therefore, passed the age of of consent and since she went on her own free will, no offence under sections 366 or 376 of Indian Penal Code will be made out. The prosecutrix now seems to have resciled from her consent from the pressure of her parents that is why she has given a statement implicating the accused. But, there are so many infirmities in her statement that she is conceding the truth. She has stated that, not only the accused, but two other men indulged in sexual intercourse with her, who are accused, his uncle Chandrapal and third person Lala Ram.

16.Despite degradation of moral values, it seems difficult to accept that the accused and his uncle had sexual intercourse with the girl, particularly when the girl herself says that a court marriage had taken place between her and accused-appellant. The very fact that a court marriage, took place itself suggests that the prosecutrix was willing because, if it was not the case, she could had said the Marriage Officer that she has been abducted and she is not willing.

17.It is also to be noticed that 6 accused were named in the F.I.R. but the Investigation Officer, has submitted charge-sheet only against one accused. In his statement recorded in the court, Investigation Officer P.W. 7 Naubat Singh stated that he gave a charge-sheet only against accused because in her statement under section 164 Cr. P.C., the girl had only named the accused. The statement under section 164 Cr. P.C. has not been brought on record.

18.The presiding officer despite having learnt from the statement of Investigation Officer, about the statement of the prosecutrix being recorded under section 164 Cr. P.C., should have directed, that the statement be brought on record, so that the matter may be examined comprehensively, but the trial Judge seems to have been a passive spectator to the proceedings and recorded the evidence in a mechanical manner, without any efforts to find out the truth. The syne-qua-non of a criminal trial is the discovery of truth and presiding officer must keep in mind that his desideratum is to find-out, as to what actually happened, and he has, therefore, to exert himself, and probe into the matter in order to find out the real truth.

19.In this case, the presiding officer has failed to accomplish this objective and not one single question was asked by the presiding officer himself. There is also on record a letter said to have been written by the prosecutrix to Senior Superintendent Of Police, Budaun in which she mentioned that she had married the accused of her free will, but the presiding officer did not even care to that letter proved and the same was not put to the prosecutrix, while she was in the witness box.

20. The defence lawyer also failed in doing this, which is indicative of the falling standard of lawyering in Mufassil courts.

21.It has also to be noticed that F.I.R. was lodged on 2.6.2003 while incident took place on 15.5.2003. The complainant says that he was out for 3 days and lodged the F.I.R. on his coming back from Agra but there was still a delay of more-than 8 days.

22.The counsel for the State argued that it is well established that delay in F.I.R. is of no consequence and does not damage the prosecution version, but this is not a rule of thumb to all the cases indiscriminately. There may be cases, where delay in the F.I.R. is of no consequence but there are cases where delay is suggestive and purposive. If the daughter of the complainant had been taken away, why did he wait for 8 days to lodge an F.I.R.. The complainant (P.W. 3) has sought to explain this delay in lodging the F.I.R. by saying that his F.I.R. was not lodged at the Police Station and then the lawyer prepared the application and gave it to the Sub-Divisional Magistrate, who ordered registration of the F.I.R. The application was given on 26.5.2003 while according to the complainant version, he came on 18th. There is no explanation of this six days and delay in lodging the F.I.R. is not adequately explained. The delay is revealing and is indicative of the possible circumstance that the girl had gone of her own free will and had entered into a marital contract with the accused and that is why the father of the girl was reluctant to lodge an F.I.R.

23.In sum, the prosecution case against the accused is not worthy of acceptance and the accused deserves acquittal.

24.Appeal is allowed. The order of holding the accused guilty under sections 363, and 376 I.P.C. and sentencing him, is consequently set aside. He is in Central Jail, Bareilly. He be set at liberty, forthwith.

25.A copy of this judgment be sent by the office immediately through fax and post-haste to Chief Judicial Magistrate, Budaun for information and compliance.

26. Fee of the amicus curiae is fixed at Rs. Eight thousand.

Dated: 8.10.2007



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