Dismissed

Babita v. State of U.P.and 2 Others

Allahabad HC3 Sept 2021C372/157/2021

Case brief

AI extract

What is this about?

In this criminal appeal by the victim-prosecutor, the High Court dismissed the appeal and refused leave to file it. The court upheld the trial court's acquittal under sections 376D and 420 IPC, finding that video evidence disproved the claim of intoxication and coercion, rendering the prosecution's story false.

What did the court decide?

Leave to file appeal refused. The criminal appeal is dismissed.

Babita Vs State of U.P.and 2 Others — Criminal Trial and Appeal | Allahabad HC (2021)

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Court No. - 44

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Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 157 of 2021

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Appellant :- Babita Respondent :- State Of U.P.And 2 Others Counsel for Appellant :- Ashok Kumar Singh,Vinod Kumar Rai

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Counsel for Respondent :- G.A.

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Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.

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[By Hon'ble Mrs. Sadhna Rani (Thakur),J.]

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This is an appeal against the judgment dated 30.1.2021 passed by the Additional Sessions Judge/ F.T.C. 1st, Mirzapur in S.T. No. 135 of 2015, case crime no. 367 of 2015 under section 376D, 384, 420, 506 I.P.C. and 66 E, 67A of the Information Technology Act, police station Adalhat District Mirzapur.

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By the impugned judgment, the learned Additional Sessions Judge convicted the accused persons Brijesh Maurya and Sandeep Maurya, under sections 384, 506 I.P.C. and 66E and 67A I.T. Act whereas acquitted both of them under sections 376D and 420 I.PC.

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This appeal has been filed by the victim herself on 24.3.2021 under section 372 Cr.P.C.

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The learned counsel for the appellants seeks leave to file appeal on the ground that the statement of the victim in the first information report as well as recorded under sections 161 and 164 Cr.P.C. as also in the court was categorical that accused had administered some intoxicated substance in the cold drink which she consumed at his insistence and, thereafter, when she became unconscious two accused persons took her to some lonely place and committed rape on her. The accused Sandeep made the video of the incident and on the threat to make the same viral, both the accused persons had blackmailed her and raped her again after three months.

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It is contended that the prosecution had proved its case against the respondent nos. 2 and 3 beyond all reasonable doubts. The learned lower court has illegally disbelieved the statement of the victim -girl on the ground that no independent witness from the sweet meat shop had been produced and wrongly held that in the presence of so many persons in the shop, it was not

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possible for the accused persons to administer the intoxicated substance in the cold drink and if when the victim was not feeling well and was about to unconscious after consuming intoxicated 'sprite', then why she did not complain the same to the people in the sweet meat shop. The contention is that the conclusion drawn by the trial court is against the evidence on record.

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It is contended that though the learned trial court convicted the accused persons under section 384 and 506 I.P.C. along with other sections of I.T. Act but their acquittal under section 376D and 420 I.P.C. is against the evidence on record. The judgement has been passed on surmises and conjectures and hence, the order of acquittal of respondents from the charge under section 376D and 420 I.P.C. is liable to be set aside.

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After hearing the learned counsel, we have gone through the record. We found that the trial court has convicted the accused persons under section 384 I.P.C. as the charge of extortion was proved as it had reached at the conclusion that both the accused had blackmailed the victim using incriminating material (video clippings) showing the victim indulged in sexual relations with the accused Brijesh Maurya. The accused persons were found guilty of threatening and making viral the incriminating video in public.

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However, the prosecution version that the victim was administered some intoxicated material into the cold drink which she was made to consume in a sweet meat shop and thereafter she being taken away from the shop and after becoming unconscious raped was disbelieved.

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Having read the judgement of the trial court, we find that the findings are that three video clips were produced before the court, the first clip was of 4.07 minutes wherein the victim was eating something and talking to the accused. There was nothing in that video which could show that the victim was under the effect of intoxication. The second video was of 4.04 minutes. In the said video, the victim was shown having indulged in sexual activities with the accused Brijesh. Third video was of 26.35 minutes wherein Brijesh was shown wearing a cap. The victim could be seen spreading the bedsheet therein. She was also wearing Mangalsutra and thus it appeared that the said video was recorded post marriage. She was seen in happy mood and from her gesture, it could not be said that she was under any force or pressure or under the effect of any intoxication. The video of first 20 minutes covered the sexual activity of the victim. After that, the victim and accused Brijesh were seen talking to each other. At 24.57 minutes of the video, both were

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seen kissing each other. On the basis of these clippings, the trial court came to the conclusion that in any of the three clippings, the victim was nowhere seen to be scared, unconscious or afraid, rather she was shown actively cooperating in the sexual activities.

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We have also gone through the victim's examination -in -chief, wherein she had stated that after three months of the first incident accused Sandeep called her to Naraynpura and showed her the video clips. He blackmailed her and took her to the old place Shakteshgarh, where he called accused Brijesh. Sandeep went away leaving Brijesh there and Brijesh did not commit rape on her but disclosed that accused Sandeep forcefully made her video clip. According to her, accused Sandeep also did not commit rape upon her the second time and boarded her on a bus. She further stated that last time when Sandeep raped her that incident was not recorded.

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Thus, the second incident of rape had been denied by the victim herself and so far as the first incident regarding which the video was said to have been made without knowledge of the victim, does not prove the story of intoxication or any kind of pressure or force to participate in the social activities rather the clips proved that she was a consenting party and everything went according to her wish and willingness.

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The evidence on record thus, makes the whole story of administering intoxicated substance by the accused and rape is found false. The prosecution could not be said to have proved the charges under sections 420 and 376D I.P.C. against the accused persons by producing any cogent evidence.

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The judgement of the learned trial court, therefore, cannot be said to suffer from any infirmity. No good ground is made out to interfere. The leave to file appeal is hereby refused.

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The appeal is accordingly, dismissed.

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Order Date :- 3.9.2021

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Gss

Babita v. State of U.P.and 2 Others

Case brief

What is this about?

What did the court decide?

Babita v. State of U.P.and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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