High Court
Case Details
Neutral Citation No. - 2023:AHC:188008 Court No. - 84 Case :- CRIMINAL APPEAL No. - 6840 of 2023 Appellant :- Nanhe Yadav Respondent :- State of U.P. and Another Counsel for Appellant :- Vineet Kumar Singh,Sr. Advocate Counsel for Respondent :- G.A.,Akhilesh Singh,Shivam Yadav Hon'ble Mrs. Sadhna Rani (Thakur),J.
Legal Reasoning
Heard learned counsel for the appellant, learned counsel for the opp. party no. 2 and perused the record. Counter affidavit filed on behalf of the opp. Party no. 2 is kept on record. Learned counsel for the appellant refused to file the rejoinder affidavit. This appeal has been preferred against the impugned order dated 27.2.2023 passed by Special Judge, SC/ST Act, Gorakhpur in Misc. Case FR No. 241 of 2021, Saroj Vs. Nanhe Yadav, Case Crime No. 138 of 2019, under section 376, 406 I.P.C. and Section 3(2) (v) of SC/ST Act, police station Khajani, District Gorakhpur. By the impugned order, the learned Special Judge SC/ST Act, Gorakhpur rejected the final report filed by the police and summoned the accused appellant for facing trial. As per the facts of the case, a first information report was lodged by the first informant/ opp. Party no. 2 against the appellant on 22.6.2019 at 21.30 hours under sections 376, 406 I.P.C. and section 3(2)(v) of SC/ST Act. It was alleged that on the pretext of showing a land, the appellant took the first informant with him on 21.6.2019 at 7-8 P.M. Rs. 80,000/- regarding the purchasing of the land had already been taken by the appellant. The victim / opp. party no. 2 is a 30 years old married lady having two children. When the opp. party no. 2/ victim was sitting in the car along with the present appellant, the appellant started making some obscene talks. On her resistance, the appellant stopped the obscene talks and said that he was just joking. The victim asked the appellant where they were going. He replied that they were going to Kotahi Mai Mandir where they would visit temple and have a look of the land in question which is nearby the temple. The land shown to the victim, was not liked by her. On their way coming back, at a lonely place, the appellant stopped the vehicle and committed rape on her. When she raised an alarm, she was pushed down from the car by the appellant and he ran away leaving her alone. The place of the incident was deserted there was no one there. The incident took place at about 8.30 P.M. to 9.30 P.M. The alleged victim made calls on 100 dial by her mobile no.9889066727. On the basis of this FIR, the investigation was done and the final report was submitted wherein it was found by the Investigating Officer that at the behest of one Shyam Yadav, the false FIR was lodged by the first informant. Reason shown was that when the rape is said to be committed on a lady, it is necessary that she must be taken by the culprit. On the basis of FIR and the statements of the victim under sections 161 and 164 Cr.P.C., it is not proved that both, the victim and the accused, went together. The location of the accused appellant at the time of incident is not found at Khajani. Finding no proof against the appellant, final report was submitted. Vide the impugned order dated 27.2.2023, the final report was rejected by the trial court and the accused appellant was summoned to face trial. It is argued by the learned counsel for the appellant that the distance of the place of incident is shown to be 1 km. from the police station concerned even then the FIR was lodged after 24 hours without disclosing any reason of the same. As per the statement of the victim under section 164 Cr.P.C., the victim sustained injuries but as per the medical report appended at page 41 of the paper book, no injury was found on the person of the victim. Pathological report also does not support the victim. As per CDR also the location of the appellant from 8.30 p.m. to 9.30 p.m. is not found at Khajni, the alleged place of the incident. The appellant is innocent, he has been falsely implicated in the present case. The trial court by the impugned order has only found that the victim in her first information report made allegations against the appellant of an offence under section 376 I.P.C. This version of the FIR is supported by her statements under sections 161 and 164 Cr.P.C. Before the medical officer also she has stated that when she did not like the land shown by the appellant accused, she demanded her Rs. 80,000/- back, the accused appellant committed rape on her. As the offence is related to the incident of rape, the court found it to be tried by the court and consequently the final report was rejected and the accused appellant was summoned to face trial. Learned counsel for the appellant submitted that the order of the trial court does not explain as to why the decision of the Investigating Officer was disbelieved, while the investigation was done by a government officer under his statutory duty. It is further submitted that mere allegation does not make an offence. The Investigating Officer reached at the conclusion of filing final report on the basis of the evidence on record which include the location of the spot, the medical report, call detail report and oral evidence on record. It is further submitted that for commission of an offence an act or omission on the part of appellant must be there. But on the basis of the medical report and call detail report, prima facie, the offence cannot be said to be made out against the appellant, hence, the prayer is made accordingly. Learned counsel for the opp. party no. 2 opposed the prayer and submitted that the place of occurrence is not Khajni but the place/ plot which was shown to the victim was nearby Kotahi Mai Mandir, and the incident took place when they were coming back from there, hence, it cannot be said that the incident took place at Khajni. The attention of the court is drawn towards the call detail report of the victim appended at page 61 of the paper book whereby it is shown that the victim made calls by the mobile number mentioned in the FIR on 100 dial from 21:44:18 hours to 21:46:28 hours, 3 calls are shown to be made by her to ADUPP IO from 21:51:25 hours to 21.51.42 hours and this time tallies with the version of the first information report that the rape was committed upon the victim between 8.30 p.m. to 9.30 p.m. then she called 100 dial by her mobile no. 9889066727. Again from this report, it is shown that the location of this mobile number of the victim is shown at Khajni from 22:10:56 hours to 22:50:05 hours this time does not tally with the alleged time of the incident because the place of occurrence was not Khajni but it was a lonely place in the mid way coming back from Kotahi Mai Mandir. On the basis of the statement of the victim under section 164 Cr.P.C. it is again submitted by the learned counsel for the opp. party no. 2 that she was raped in the car itself and she suffered injuries also. It is submitted that these injuries were not the injuries because she was assaulted physically but these injuries were caused to her by the sexual assault made on her. Injuries caused by the sexual assault on 21.6.2019 necessarily cannot be said to be seen on the person of the victim upto 24.6.2019, after three days of the incident when she was medically examined. The attention of the court is also drawn towards the final report filed by the Investigating Officer wherein it is mentioned that for rape it is necessary that the victim must have been taken away by the culprit but it is not proved from the first information report and the statement of the victim under sections 161 and 164 Cr.P.C. while from the CDR, from the FIR and from the statements of the victim under sections 161 and 164 Cr.P.C. everywhere it has been clearly stated that from Khajni she was taken to Kotahi Mai Mandir on the pretext of showing some land and on way back to Khajni she was raped by the appellant accused. Hence, it is prayed that the approach of the trial court was exactly as per law because in case under section 376 I.P.C. the statement of the victim only is enough to prosecute a person/ accused. The order being a legal order, the prayer was made accordingly. From the perusal of the record, it is found that after investigation the final report was submitted by the Investigating Officer which is appended at page 72 of the paper book wherein it has been mentioned that for the offence of rape it is necessary that the victim must have been taken away by the accused. But both accused and victim went together is not proved either from the FIR or from the statements of the victim under sections 161 and 164 Cr.P.C. CDR regarding mobile number of the appellant has not been placed before the court. But if we go through the FIR or statements of the victim under sections 161 and 164 Cr.P.C. everywhere there is the same contention that she was taken away from Khajni at about 7-8 P.M. on the date of the incident towards Kotahi Mai Mandir and on their way back she was raped by the accused. On the basis of CDR also it can be said that the victim travelled at the time of the incident from Manas Vihar colony to Singhasanpur, Jaitpur, Bhulawan, Basgaon and Khajni and it is the allegation of the victim that throughout the way to the place of incident she was along with the accused. Thus the version of the Final Report that it is nowhere on record that the victim and the accused were travelling together during the period of the alleged incident becomes wrong. As per medical report no external or internal injury is found on the person of the victim. So far as the argument of the learned counsel for the appellant that the medical report is against the version of the victim is concerned, the incident is said to have taken place on 21.6.2019, the medical examination of the victim is done on 24.6.2019. In the opinion of the court after three days, the pathological report would come positive is not possible. Otherwise also, the victim is a married lady having two children, after three days of the incident marks of sexual assault must be necessarily on her person can not be said. So far as CDR is concerned though the CDR shall be proved at the time of the evidence only otherwise also the CDR supports the version of the victim made in the FIR that from her mobile she called number 100 dial. As per the CDR from 21:44:18 hours to 21:46:28 hours 6 calls to 100 dial and 3 calls to AD-UPPIO from 21:51:25 to 21:51:42 are shown to be made from the mobile of the victim. Thus, this CDR prima facie confirms the version of the victim that she started her journey from Khajni along with the accused and it was only in mid way that she was raped. Thus, it was not Khajni where she was raped. On the basis of this version the time of rape from 8.30 to 9.30 can be said to be confirmed. Though it is true that as per the arguments of the learned counsel for the appellant that the trial court has not discussed how the trial court disagreed or rejected the investigation done by the Investigating Officer, but in the opinion of the court on the basis of the version of the FIR and the statements of the victim under sections 161 and 164 Cr.P.C., offence under section 376 I.P.C. can be said to be prima facie made out against the appellant, hence, the trial court rightly rejected the final report and summoned the accused regarding the allegation of rape. Thus, the court do not find ground to interfere with the finding of the trial court. The appeal lacks merit and is liable to be dismissed. The appeal is hereby dismissed. Order Date :- 27.9.2023 Gss Digitally signed by :- GIRAJA SHANKER SHARMA High Court of Judicature at Allahabad