AZIZ Vs. STATE OF U P

JUDGEMENT

(1.) THIS criminal appeal is directed against the order of conviction and sentence whereby the learned lower court convicted accused Aziz alone under Section 366/368, I.P.C. and sentenced him to undergo R.I. for 5 years and pay a fine of Rs. 500 for the offence under Section 366, I.P.C. and R.I. for 5 years and again a fine of Rs. 500 for the offence under Section 368, I.P.C. The sentences were ordered to run concurrently and in case of default in payment of fine under each head, Aziz was directed to undergo further R.I. for 6 months. Learned lower court, however, acquitted Aziz of the offences under Section 363/376, I.P.C.

(2.) THREE other persons, namely, Kripa Ram, Babu and Shafiq were tried as co-accused along with appellant Aziz for the offences under Section 363/366/368, I.P.C. Before proceeding further, it may be observed that the evidence against all the four accused persons was of common nature but it was found unworthy of credit so far as the three accused other than the appellant were concerned.

(3.) FOR the appellant, it has been contended that the evidence against all the co-accused persons was of common nature and the appellant, therefore, should have been acquitted by the learned lower court which had found the same evidence unworthy of credit so far as the three co-accused persons were concerned. Learned counsel for the appellant argued that there were neither circumstances nor evidence of oral nature on the record on the basis of which the case of appellant Aziz could be distinguished from that of the co-accused persons. It was also argued and to my mind correctly, that the prosecutrix herself was not a reliable witness of the incident. She had specifically stated vide page 13 of the paper book, in reply to a Court question that Kripa and Shafiq had not participated in this incident at all and they even had not talked to her nor accompanied her from her house. She falsified the prosecution story regarding the identity of the co-accused persons, who allegedly had abducted her. Her statement that she had been ravished by Aziz was disbelieved by the learned lower court and in view of this circumstance, it could be held that she was not a wholly reliable witness. To the contrary, the aforesaid state of affairs suggested that she had made considerable improvement in her statement. At page No. 14, she stated that rape had been committed upon her by one Suddin which, however, had not been the case of the prosecution. It is said that she had been detained for sometime in the house of Suddin which was occupied by 10 to 12 family members, who were present in the house those days.