HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 23.06.2017
Delivered on 12.07.2017
Case :- CRIMINAL APPEAL No. – 112 of 2009
Appellant :- Annu Kananojia
Respondent :- State Of U.P.
Counsel for Appellant :- In Person,Ashok Bajpai,Amicus Curie,Dinesh Kr.Sharma,Vimlesh Kanaujia,Vimlesh Kumar
Counsel for Respondent :- G.A.
Hon’ble Satya Narain Agnihotri,J.
1. Feeling aggrieved with the judgment and order dated 29.9.2008 passed by learned Additional Special Chief Judicial Magistrate, C.B.I. (Ayodhya Matter), Lucknow in Criminal Case No.502 of 2007 arising out of Crime No.8 of 2007, under Sections 342, 377 and 506 I.P.C., Police Station Mahanagar, District Lucknow, the appellant Annu Kananojia filed this appeal, whereby learned Special Additional Chief Judicial Magistrate held guilty to the appellant accused and punished him under Section 377 I.P.C. six years rigorous imprisonment and fine of Rs.4000/-, under Section 342 I.P.C. one year rigorous imprisonment and under Section 506(2) I.P.C. two years rigorous imprisonment and fine of Rs.1,000/-. It was further ordered that in default of payment of fine accused appellant shall serve additional one year simple imprisonment under Section 377 I.P.C. and two months simple imprisonment under Section 506(2) I.P.C.
2. Facts of the case of prosecution may be summarized as under:
The complainant Ramu Bajpayee lodged a complaint on 5.1.2007 at 23.05 hours with the assertion that he is aged about 12 years and he came to Lucknow in search of livelihood and was staying in Aminabad Labour Mandi. About four days earlier from 5.1.2007 in the greed of getting a blanket which was being distributed by peoples of means, he came at Hanuman Temple and was sitting at the roadside patri. At about 9.00 P.M. four accused persons named Baba Mohd. Jalil, Shiv Kumar, Annu Kananojia and Ram Prasad forcibly brought away the complainant under the bridge in a thatched house where they took intoxicant and also forced the complainant to take the same. Later on appellant with other co-accused persons undressed the complainant and applied oil and cream at his anus and one by one inserted their penis in the anus of the complainant. The complainant tried to raise alarm but one of them respectively shut the mouth of the complainant and all of four committed sodomy one by one with the complainant. The appellant with other co-accused persons confined the complainant in the thatched house about four days and on each and every day they committed sodomy with complainant. During day time they did not permit the complainant to go any where and when the complainant wanted to answer the call of nature they guarded and watched the complainant and threatened to kill him if he told anyone about the incident. It was also stated in the F.I.R. that appellant with other co-accused one by one inserted their penis in the mouth of the complainant and forced him to suck it. After getting himself freed from the place of incident, the complainant reached at the temple of Lord Hanumanji where he got scribed F.I.R. Exibit Ka-2 from an unknown person and submitted it in the office of Police Station Mahanagar pursuant to which formal first information report was registered.
3. After registration of the crime, the matter was investigated by Sri Ram Surat Gautam, Sub Inspector who arrested the accused persons and collected the cloths from the thatched house on 6.1.2007 and prepared site plan Exhibit Ka-3. The complainant was examined on 6.1.2007 by P.W.-4 Dr. Javed Ahmad Khan who proved medical report Exhibit Ka-8 and stated on oath that at the time of medical examination there was one injury upon the anus of the complainant.
“(i) Abrasion 1×0.5 at inferior side of anus.
Swab taken preserved. Patient admitted.
Injury about within one day old. Cause by K.U.O. (kept under observation). Nature simple. Referred to Surgeon and Pathologist.”
It is further stated by doctor that the injury was one day old and was kept under observation. The swab was prepared and was sent for examination to the pathology. The pathologist reported that there was no sperm and spermatozoa seen.
4. After completing the investigation charge-sheet was submitted against the appellant and other co-accused.
5. To prove the guilt of the appellant and other co-accused persons, prosecution examined as many as six witnesses, namely, Sri Parwat Ram Pathak P.W.-1, Sri Ramu complainant P.W.-2, Sri Ram Surat Gautam, S.I. P.W.-3, Dr. Javed Ahmad Khan P.W.-4, Sri Shivpal Singh Constable Clerk P.W.-5 and Dr. Ravindra Kumar P.W.-6.
6. P.W.-1 Sri Parwat Ram Pathak proved the memo of recovery, phial of oil, phial of Vaseline, pant and underwear of the complainant, Langot and Lungi of the accused persons and stated on oath that he was guard of the temple of Lord Hanumanji at that time and in his presence Investigating Officer recovered above mentioned materials from the thatched house of appellant and other co-accused in which they were residing.
7. P.W.-2 Ramu Bajpai is complainant who proved the F.I.R. Exhibit Ka-2 and the materials recovered from the thatched house of the appellant and other co-accused persons situated under the bridge near Lord Hanumanji temple. P.W.-2 further stated on oath that appellant with other co-accused committed sodomy with him and one by one inserted their penis in the anus of the complainant after greasing anus with oil and Vaseline. It is also stated by the complainant that the appellant with other co-accused persons one by one forcibly inserted their penis in his mouth and forced to suck the same. The complainant further stated that all four accused persons including appellant committed sodomy one by one and they shut the mouth of the complainant forcibly so that he could not raise alarm and when he requested to go to attend the call of nature, one of them always guarded him and threatened to kill him and throw his body in the holy river Gomti. It is further stated that anyhow he fled away from the place of occurrence and came at the temple of lord Hanumanji where he got scribed the F.I.R. from an unknown person and submitted it in the office of Police Station Mahanagar, District Lucknow.
8. P.W.-3 Sri Ram Surat Gautam, Sub Inspector, who investigated the matter, stated on oath that investigation of this crime was entrusted to him on 6.1.2007 and he started investigation at once. First of all he visited the thatched house of the appellant and other co-accused at about 1.30 a.m. and arrested all four culprits and also recovered one phial of oil, one phial of vaseline, pantloon, underwear of complainant, langot and lungi of accused persons from the place of incident. The recovery memo was prepared in presence of Shri Pravat Ram and Sri Manoj Kumar. He further stated that statement of complainant was recorded and complainant was sent to hospital for medical examination. He prepared the site plan Exhibit Ka-3 and after completion of investigation submitted charge-sheet in the court.
9. Dr. Javed Ahmad Khan, P.W.-4, stated on oath that on 8.1.2007 he received anus swab of complainant Shri Ramu Bajpai, which he examined. No sperm and spermatozoa was found on that very slide. The report which is in his handwriting is Exhibit Ka-5.
10. Constable Clerk Sri Shivpal Singh stated on oath that on 5.1.2007 he recorded chik F.I.R. Exhibit Ka-6 in pursuance of the F.I.R. submitted by Sri Ramu Bajpai complainant. This fact was entered in the general diary of the police station at serial No.47 dated 5.1.2007 at 23.05 P.M. Copy of G.D. is on record which is Exhibit Ka.-7.
11. P.W.-6 Dr. Ravindra Kumar stated on oath that on 6.1.2007 he was posted in Balrampur Hospital and complainant Shri Ramu Bajpai was brought before him for examination. He medically examined him and found one injury upon his anus. The complainant was admitted in the hospital and the slide was prepared and sent to pathologist for examination. The injury was about one day old which was kept under observation. The nature of injury was simple. The injury report is on the record which is Exhibit Ka-8. It was further stated by the witness that injury might be caused due to unnatural sexual activity.
12. Heard Sri Ashok Bajpai, learned Amicus Curie, Sri R.K. Dwivedi, Advocate, learned Additional Government Advocate and gone through the record.
13. P.W.-3 Sri Ramu Bajpai, who is a complainant and victim in this case, unequivocally and unnerringly supported the version/theory of the prosecution and there appears no material contradiction, exaggeration, emblazonment or omission in his deposition. P.W.-2 complainant proved that at the time of commission of offence he was aged about 12-14 years and came to Lucknow for casual labourship and livelihood with the permission of his mother and was staying near the locality of Garbarjhala in Lucknow. On the date of occurrence he went near the temple of Lord Hanumanji to get a blanket which was distributed by the persons of eminence. At that very time at about 9 or 10 P.M. appellant along with other co-accused forcibly brought away the complainant from the place of sitting in their thatched hutment near and under the Hanuman Setu where all four persons one by one committed anul sex against the wishes of the complainant and he was confined by these persons in the hutment for four days. When complainant expressed his desire to meet natural call, they accompanied him and kept guard. Anyhow complainant got opportunity to flee away, he went to temple of lord Hanumanji where he told the entire episode to the persons who were present their. The complainant got scribed the F.I.R. from an unknown person and submitted the same at police station. After registration of formal first information report investigation was started and the Investigating Officer arrested the appellant and other three co-accused persons from the thatched hutment and prepared the site plan with the help of complainant. P.W.-2 complainant was subjected to cross examination by the appellant and three other co-accused but nothing could be extracted in favour of the appellant. Thus the evidence of P.W.-2 complainant Sri Ramu Bajpai is wholly reliable and no aspersion can be casted upon it.
14. The other witnesses of formal nature have proved the document of the prosecution and injury report of the complainant P.W.-2.
15. Learned Amicus Curie Sri Bajpai submitted that there are major contradiction and glaring discrepancies in the statement of prosecution witnesses thats why the statement of P.W.-2 Sri Ramu Bajpai is not reliable.
16. I unable to agree with the argument of learned Amicus Curie because statement of P.W.-2 who is a complainant and victim in this case, was subjected to cross examination and there is nothing to show that there is any material contradiction in his statement.
17. Learned Amicus Curie further submitted that there is no eye witness account in this very case, hence reliance cannot be placed on the evidence of P.W.-1 complainant. I again unable to accept the submission of learned Amicus Curie, because the offence committed by the appellant and his associates is a very detested and disgusting act. Such type of offences are being committed in lonely places surrounded by four corners so that the same cannot be seen by the people and any other law agency. As per statement of P.W.-2 the offence was committed upon him in thatched hutment, thats why it could not been seen by any other person.
18. Learned Amicus Curie further submitted that prosecution failed to assign specific role to any of the accused persons including the appellant. I afraid to accept the said submission, because the complainant P.W.-2 in his statement clearly stated that all four accused persons including the appellant committed anul and oral sex at their hutment when he was confined in it by the appellant and his associates. Thus the role assigned by the complainant P.W.-2 is specific for all accused who were indulged in anul and oral sex with the complainant.
19. Learned Amicus Curie further submitted that as per medical examination report there were no spermatozoa found on the cloths which were worn by the complainant and the appellant. The submission of learned Amicus Curie is not tenable because the appellant along with three other co-accused persons committed anul and oral sex with the complainant so many times. It is also stated by P.W.-2 that at the time of anul sex accused were became naked thats why it was not possible to find the sperm on the cloth and the semens would have been ejaculated on the cloth or material lying on earth..
20. It is further submitted by learned Amicus Curie that prosecution failed to disclose the name of scriber of F.I.R. Exhibit Ka-2, hence F.I.R. is not reliable. I find myself unable to agree with the submission of learned Amicus Curie because the complainant is a resident of district Sitapur and he came to Lucknow for casual labourship. He was about 12 years old at the time of commission of offence thats why it cannot be expected from him to know the identity of scriber of the F.I.R. Exhibit Ka-2.
21. P.W.-2 complainant stated on oath that when he was in captivity of appellant and other three co-accused persons, they all threatened him that if he told or expressed commission of this offence to anyone then they will throw him in Gomti river. Thus the offence under Section 506(2) I.P.C. is also proved against the appellant.
22. No other argument has been advanced by learned Amicus Curie.
23. In view of above discussions and after going through the entire record, I am of the opinion that the statement of P.W.-2 complainant Sri Ramu Bajpai is sufficient to hold guilty to the appellant. There is no infirmity or illegality in the judgment and order of learned trial Court. The conviction and sentence awarded by the trial court is hereby affirmed.
24. The appeal is devoid of merit and is dismissed.
25. Let this judgment be notified to the learned Additional Special Chief Judicial Magistrate, C.B.I. (Adyodhya Matter), Lucknow for compliance. Learned Judge shall submit compliance report within a month.
Order Date :- 12.07.2017.