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Reversed Court No. - 48 Case :- GOVERNMENT APPEAL No. - 83 of 2021 Appellant :- State of U.P.
Respondent :- Ovendra Singh
Counsel for Appellant :- G.A. Hon'ble Suneet Kumar,J.
Hon'ble Syed Waiz Mian,J.
(Per Justice Syed Waiz Mian)
1. This government appeal has been preferred against the judgement and order dated 13.11.2020, passed by Additional Sessions Judge, Fast Track Court No. 1, Moradabad in Sessions Trial No. 326/2017, arising out of Case Crime No. 346/2016, P. S.-Pakbada, district-Moradabad, whereby, he has acquitted the accused-respondent, Ovendra of the charges under Sections-376, 504 and 506 I. P. C.
2. The proseuction story in brief runs as under:
3. That on 7.9.2016 the prosecutrix presented an application to lodge the F.
I. R. at the concerned police station to S. S. P., Moradabad, averring therein that she served in the office of Idea Telecom Company, Harthala; her elder sister Pinky was married in village-Prithvipur, P. S.-Amroha Dehat, district- Amroha, and she would often visit her sister's place; accused-respondent, Ovendra, who was the neighbour of her sister, became familiar with her and between them friendship developed and both had fallen in love with each other; accused-respondent, Ovendra started to visit her residence at Malipur; two years ago, he came at her home and enticed her to make physical relations; on her protest, he promised to marry her; she was also threatened; thereafter he took her to Dehradun where he raped her and also made obscene video clipping; and whenever she asked him to marry her, he would threaten to upload the video on social media; on 24.8.2016 accused-respondent came to her house at Malipur and under threat, he made physical relations with her and
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when she exerted pressure to marry him, he hurled abuses at her and also threatened to liquidate her and further threatened that since he serves in R. P. F. at Hyderabad, will implicate her and her family members in a false case; on 27.8.2016 by playing fraud he obtained her signatures on plain stamp paper and got typed a compromise thereon; the accused-respondent is blackmailing her, therefore, her report be lodged at the concerned police station and legal action be taken against the accused-respondent.
4. The S. S. P. directed on 6.9.2016 to the concerned S. H. O. Pagwara, to register the F. I. R. and take necessary action.
5. The chik F. I. R. was registered being Case Crime No. 346 of 2016 under Sections-376, 504 and 506 I. P. C. and Section-66 of Information Technology (Amendment) Act, 2008, and upon entrustment, investigation commenced. During the course of investigation, prosecutrix was presented for medical examination and radiological examination was also conducted. In the medical examination, no mark of injury over her private part or person was found. Hymen was found old torn and healed. No spermatozoa whether alive or dead, was seen. In the medical examination which was conducted to determine her age, in the opinion of the doctor, on 29.6.2016, she was found to be about twenty years old.
6. During the investigation, the statement under Section 164 Cr. P. C. also was recorded by learned Additional Chief Judicial Magistrate-IV, Moradabad on 4.10.2016. During investigation statements of the prosecutrix, accused and other witnesses under Section 161 Cr. P. C. was recorded and the investigating officer found prima facie evidence under Sections-376, 504, 506 I. P. C. and submitted police report under Section 173 (2) Cr. P. C. against the accused- respondent to the magistrate concerned, who in the light of the material before him, took cognizance in exercise of power under Section 190 (1) Cr. P. C. for offences under Sections 376, 504 and 506 I. P. C. After completing the formalities, the concerned magistrate committed the case for trial to the Court of Sessions, Moradabad, from where sessions trial was transferred to the Court
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of Additional Sessions Judge, F. T. Court No. 1, Moradabad. Statements of prosecutirx and other witnesses were recorded. After closure of evidence on behalf of prosecution, the statement of accused-respondent under Section 313 Cr. P. C. was recorded. The lower court put the evidence to the accused who denied the same and stated that he has been falsely implicated in this case. Thereafter, the statement of the prosecutrix under Section 311 Cr. P. C. was again recorded; she was again examined as P. W. 1. On 2.4.2019 again statement of accused under Section 313 Cr. P. C. with regard to additional testimony of the prosecutrix was recorded. Accused in his defence declined to adduce evidence.
7. After hearing both the parties, learned lower court did not find sufficient evidence to hold the accused guilty under aforementioned sections, consequently, acquitted him of all the charges.
8. Feeling aggrieved, instant government appeal has been preferred.
9. Heard learned A. G. A. on the question of admission and perused the record.
10. Impugned judgement and order has been challenged mainly on the ground that despite there being cogent evidence on record against the accused- respondent, learned lower court has acquitted him, whereas, prosecution has successfully proved its case beyond any reasonable doubt, therefore, the impugned judgement and order is per se illegal and bad in law and thus, is liable to be set aside.
11. Thus, leave to file the instant government appeal against the impugned judgement and order in respect of the accused-respondent is sought.
12. It is admitted that on the date of alleged incident, the prosecutrix had attained majority. This fact has not been disputed by the prosecutrix herself in her ocular evidence. It is also an admitted fact that the prosecutrix and accused had fallen in love with each other. Both were employed in public service and posted at different places. The prosecutrix in her examination-in-chief has
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deposed that three years earlier from the date of her testimony recorded on 22.11.2017, accused-respondent had, for the first time, visited her house and enticed her to make physical relation with her; she had protested but he threatened her that he had made video clipping and will upload the same on social media and make it viral; he had also promised to marry her. However, in her statement recorded under Section 164 Cr. P. C. before the learned magistrate, she has not supported this part of her statement pertaining to rape for the reasons best known to her.
13. Prosecutrix has stated in her oral statement that for the first time, when accused-respondent had made physical relation with her against her wish, she had also protested, to which he had said that he has made video clipping; he had also promised to marry her. The prosecutrix has further stated in her statement recorded in the Court as P. W. 1 that she along with accused- respondent had gone to Dehradun and there also, the accused-respondent raped her and he had also threatened that he will upload the video clipping of the sexual act on social media sites to make the same viral. In the F. I. R., it is not alleged that when the accused-respondent had visited her residence and he had sex against her free will, had made video clipping. Thus, the prosecutrix has made improvement in her statement about making of video clipping when he had sex for the first time with her at her residence. During the investigation, the investigating officer neither found any evidence of her visit to Dehradun along with accused-respondent nor any such video clipping was delivered to him. Therefore, for want of evidence under Section 66 of the Information Technology (Amendment) Act, charge-sheet against the accused was not submitted to the Court, nor, the learned lower court found prima facie evidence in this connection on record, therefore, no charge under the said section was famed against the accused, moreover, she has admitted in her evidence that when accused had sex with her at Dehradun, neither any third person was present over there, nor there was any C. C. T. V. Camera installed.
14. P. W. 1 prosecutrix has admitted in her cross-examination that video
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clipping was not prepared by accused in front of her and she has not seen that video. She has pleaded ignorance about how and when the video clipping was made at Dehradun by the accused. It is also pertinent to mention here that in her statement she has also said that when she along with accused had gone to Dehradun, she had not told about it to her mother or any member of her family. However, she pretended to her mother that she was going to Dehradun with her colleagues on official tour. She has admitted that neither there is any evidence of her visit to Dehradun, nor to Dharamshala where both had stayed. She was confronted during her oral statement that there is no photograph or detail etc. on record to which, she stated that she had filed photographs in the police station and had also disclosed cellphone numbers. She has pleaded ignorance about the fact that the same having not been made part of the investigation. Prosecutrix has also admitted in her cross examination that the accused for the first time had made physical relation with her at Dehradun. She had categorically denied about having sex before that. She has also stated that she willingly went to Dehradun with the accused . However, in connection with the visit to Dehradun, as stated above, no evidence is on record.
15. Prosecutrix in her examination-in-chief has stated that she had presented an application on 26.8.2016, at Mahila police station; she was asked to come on the following day; she, her brother Rinku, sister-in-law (bhabhi) Divya and sister Pinky had gone to mahila police station; at mahila police station, accused was also present and on a stamp paper some writing was made and by playing fraud on her, she was made to sign it. In this regard, the prosecutrix in her statement stated that at mahila police station she had presented a typed application wherein she had narrated the whole story and similar application was given to S. S. P. In that application she stated that her relation with accused was of four years but had not stated that she along with Ovendra, co- accused had gone to Dehradun. A Schedule of papers 79 B is on record. Paper no. 79 B is the compromise typed on stamp paper (non judicial) on 27.8.2016.
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It bears signature of the prosecutrix, accused and Rinku from the side of the prosecutrix and a witness also from the side of accused. On this paper 79B date 27.8.2016 is mentioned. In this paper 79 B it is written that both parties, first party, i. e. prosecutrix, on account of economic constraint, is not ready to marry the opposite party, i. e. accused because she has to repay the debt she had taken for the marriage of her sister. Similarly, second party of paper no. 79B as of now, is not ready to marry; however, after lapse of four years, both shall be obliged to marry each other. Prosecutrix presented F. I. R. to the S. S. P. on 6.9.2016, whereas, compromise 79B was reduced in writing on 27.8.2016, as such, the prosecutrix breached the terms of the said compromise which was voluntary act.
16. The prosecutrix has admitted in her cross-examination in para 2 at page 4 that she had given a typed application at mahila thana and she has written all the details therein.
17. The prosecutrix in her further statement after her recall under Section
311 Cr. P. C. has deposed that paper no. 79 B, compromise on 27.8.2016, was arrived at between both the parties and she has also identified her signatures thereon. She has also recognized signatures of the accused.
18. Thus, in her further examination-in-chief dated 29.4.2019, compromise
79 B is admitted to her, whereas in her previous ocular version, she has called it a fake document.
19. P. W. 2 Kamla, mother of the prosecutrix has also been examined, however, P. W. 1 has not stated in her statement that the incident or its part was witnessed by P. W. 2, therefore, statement of P. W. 2 does not help the prosecution.
20. It is incumbent upon the prosecution to discharge its onus by proving the charges beyond doubt for offences under Sections-376, 504 and 506 I. P. C. against the accused-respondent.
21. By the impugned judgement and order dated 13.11.2020, the learned
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lower court after meticulous marshalling of facts and evaluation of evidence on record acquitted the accused-respondent.
22. From the above, discussion, it is unambiguously evident that prosecution has miserably failed to prove the charges against the accused- respondent, cogent evidence has not been brought on record to prove the charges for offence under Sections-376, 504 and 506 I. P. C., therefore, the impugned judgement and order does not suffer from any perversity or illegality and the same is, accordingly upheld.
23. Accordingly, the leave to appeal is refused, consequently, the instant government appeal is dismissed.
24. Record of lower court along with certified copy of this order be sent to the court concerned forthwith for necessary action.
Order Date:-16.11.2022
HR
(Justice Syed Waiz Mian) (Justice Suneet Kumar)
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