The Allahabad High Court has acquitted the accused in the rape incident registered 32 years ago in Mujariya police station of Badaun.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Nand Prabha Shukla passed this order while hearing a Criminal Appeal filed by Shamim and Others.
This is an appeal under Section 374(2) Criminal Procedure Code preferred by the appellants Shamim, Shafi and Khurshid challenging the Order dated 30.10.2004 who have been convicted under Section 376 IPC for imprisonment of life and a fine of Rs 10,000/- and under Section 452 IPC for imprisonment of three years and a fine of Rs 3,000/- with default stipulations passed in Sessions Trial by Additional Sessions Judge, Badaun.
The prosecutrix gave a written Tehrir on 14.11.1991 at 12:30 p.m at P.S Mujariya, District Badaun stating that about two years back, her husband purchased two bighas of land from Shamim. But later he wanted to sell it for personal necessity. Shamim desired to get back the land sold by him for the same amount but her husband was reluctant as he had a habit of gambling. In revenge, Shamim expressed his anger and on being insulted, he threatened dire consequences. About a week before the incident, her husband went to Dehradun for a job.
Then, on the intervening night of 12/13.11.1991 at around 12:00 at night, accused Shamim along with Shafiq, Khurshid and Ashfaq of her village, entered into her house. On hearing the noise, she woke and enquired as to why they entered her house in odd hours. Her sister-in-law (Jethani) Firozi, who was nearby, also woke up. The accused dragged her towards the sugarcane field. On being dragged, she screamed and her sister in-law (Jethani) too raised an alarm. The villagers came but the accused dragged her away towards the sugarcane field and committed rape for the whole night one by one. In the morning, when the tillers saw her, they rushed to rescue her, and the accused fled away. The prosecutrix came out from the sugarcane field with their help and then lodged the FIR.
On the basis of the aforesaid Tehrir, the First Information Report was lodged as Case under Section 452, 376 IPC at P.S Mujariya, District Badaun on 14.11.1991 at 12:30 p.m against the four named accused Shamim, Shafi, Khurshid and Ashfaq.
The charge-sheet was submitted against all the four accused persons under Sections 452, 376 IPC. The co-accused Ashfaq died during the inquiry, therefore, the proceedings were abated against him.
After the cognizance, the Magistrate committed the case to the Sessions Court for the commencement of the trial. The charges were framed against the accused Shamim, Shafiq and Khurshid under Sections 452 and 376 IPC. The accused denied the charges and claimed to be tried.
Counsel for the appellants challenging the conviction and sentence argued that they have been falsely implicated due to personal enmity and political rivalry. There is a delayed FIR.
Further, it was argued that they have been falsely implicated due to property dispute between the prosecutrix and the wife of accused Shamim as the suit for cancellation of sale deed was instituted.
The main contention of the counsel for the appellants was that the case of the prosecutrix does not corroborate with the medical examination report. The victim in her examination-inchief stated that she was forcefully subjected to rape by the accused one by one for the whole night but no such external or internal injuries were found on the body of the victim. It was further deposed by the victim that she was dragged by her hands and legs of a distance of one mile but no such injuries were found on her body. The prosecutrix was a married lady having two children.
The Court observed that,
Having heard the rival submissions and arguments advanced by counsel for the parties and after the perusal of records, we find that though there was slight delay in lodging the FIR but in rape matters it is a normal phenomenon. In cases of sexual assault, the victim is often bashful and carries trauma in her mind and requires some time to master the courage to undertake a legal battle against the culprit. The appellant counsel has emphasized the property dispute as the main motive of implicating them for the accusation of rape finds substance. Enmity is a double edged weapon. The property dispute amongst the party is a strong reason for false implication.
It has been found that already a suit was instituted by the wife of accused Shamim for the cancellation of the sale deed therefore, there was no occasion for the accused to unnecessary insult the prosecutrix by committing rape. The prosecutrix was a married young lady having two children and was medically examined within 48 hours of the incident on 14.11.1991 at 08:30 p.m., therefore, there was no reason to question its credibility. According to the doctor, no external injuries were found on her body. As per the internal examination, the vaginal smear did not contain any sperm. The prosecutrix was habitual to sexual intercourse, therefore, no opinion about rape could be given. According to the X-ray report, the age of the victim was more than 18 years.
The testimony of the prosecutrix of commission of rape is not substantiated and does not corroborates with the medical evidence. The statement of the prosecutrix is unworthy of credence. It is the admitted case of the prosecution that the accused were not carrying any weapon. Examined eyewitness account of the incident but they could only narrate the incident which took place within the house but could not depose about the incident which took place in the sugarcane field. It has also been admitted by eye witness that the accused neither insulted nor raped her inside the house.
The evidence adduced by eye witnesses does not support the case of commission of rape on the prosecutrix. The recovered clothes of the prosecutrix (salwar) having stained semen, was not sent for chemical examination which also does not fortify the prosecution case. No independent witnesses were examined. Though the Investigating Officer found the fallen sugarcane plants, no such entry was made in the Case Diary. The site plan does not indicate the height of the boundary wall which was crossed by the accused while entering into the house. It is a clear case of false implication due to political rivalry and property dispute. There is no material evidence to substantiate the prosecution case.
“In view of aforesaid facts and circumstances, the prosecution has failed to prove its case beyond reasonable doubt. The statement of the prosecutrix is full of discrepancies and does not inspire confidence. Though, the conviction can be based on the sole testimony of the prosecutrix but the evidence of the prosecutrix when read as a whole does not corroborate with the medical evidence and is not worthy of credence.
Thus, considering the entire facts and circumstances of the case, the evidence as well as the law laid down by the Apex Court in various judgments, we hold that in cases of a false accusation of rape, the accused must be protected from the indictment. Hence, on the basis of the discussions as above, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the appeal is liable to be allowed”, the Court further observed while allowing the appeal.
“The impugned Judgment and Order of conviction and sentence dated 30.10.2004 passed by Additional Sessions Judge/ Fast Track, Badaun in Sessions Trial registered as Case under Section 452 and 376 IPC, P.S Mujariya, District Badaun is hereby set aside. The appellants Shamim, Shafiq and Khurshid are on bail. Their bail bonds are cancelled and the sureties are discharged”, the Court ordered.