Bholey Sharma vs State on 9 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 47

Case :- JAIL APPEAL No. – 8574 of 2008

Appellant :- Bhole Sharma

Respondent :- State

Counsel for Appellant :- From Jail,Dileep Kumar,Rajarshi Gupta,A.C.,Rajeev Gupta

Counsel for Respondent :- A.G.A.

Hon’ble Shri Narayan Shukla,J.

Hon’ble Chandra Dhari Singh,J.

(Delivered by Hon.Chandra Dhari Singh,J.)

1. Heard Sri Rajarshi Gupta, learned Amicus Curiae for the appellant and Sri Rajeev Kumar Mishra, learned A.G.A. for the State.

2. This appeal has been directed against the final judgment dated 5.9.2008 passed by the Additional Sessions Judge/Special Judge, S.C. S.T. Act, Ghaziabad in S.S.T. no.1733/05, (State vs. Bhole Sharma), whereby Additional Sessions Judge after proceedings convicted the accused/appellant for offence punishable under Section 376 I.P.C. and Section 3 (2) v S.C. S.T. Act for raping the minor girl of seven years old, who belongs to scheduled caste. The accused/appellant was sentenced for life imprisonment and also fine of Rs.5,000/- for the offence punishable under Section 376 I.P.C. and Section 3(2) v of the S.C. S.T. Act. In default of payment of fine of Rs.5000/- he shall undergo further three months imprisonment.

3. Brief facts of the case.

I. According to the prosecution story, on 22.6.2005 at about 5 P.M., the prosecuterix aged about seven years had gone to the field for grazing goats towards field and at that time the informant was not present in the house. When she came back at about 7.00 P.M., the prosecutrix was laying on the cot and there was bleeding from her lower part of her body. She narrated entire story to her mother/informant that a man of Chamri met on the road near Bitora whom she could identify, took her on bicycle behind the school on alluring her of Rs.2/- and committed rape on her against her will after shutting her mouth. On the same day the informant, mother of the prosecutrix had given a written report to the police station Hapur, Kotwali.

II. On the report of the informant, a case was registered as Crime no.85 of 2005, under Section 376 I.P.C. The prosecutrix was medically examined at M.M.G. Hospital, Ghaziabad on the same day at 12.00 A.M. by Dr. Deepa Tyagi. As per the medical report, her hymen fresh torn. There was laceration in pare-urethral area which were bleeding on touch. Blood and discharge of vaginal fluid was taken and sent for test to Pathology Department. Supplementary medical report was also prepared and the prosecutrix was found to be seven years old child. She has proved report Ext. Ka 2 A. The accused person Bhole Sharma was arrested by the Investigating Officer in presence of the victim who identified the accused who had committed rape with the prosecutrix. The accused person had also confessed his guilt before the Investigating Officer.

III. The clothes of the prosecutrix which wore at the time of the incident were also taken into police custody. The accused was also sent for medical examination after arrest.

IV. The accused person was charged under Section 376 I.P.C. for committing rape in the field of Village Harduwari Nagar under Police Station Hapur when she had gone for grazing the goats. He was also charged under Section 3 (2) V S.C. S. T. Act for committing offence of rape with scheduled caste girl. The charges were denied by the accused/appellant and claimed to trial.

V. The prosecution examined eight witnesses to prove the charges against the accused/appellant P.W. 1 Smt. Leela is the mother of the prosecutrix and also informant of the case. She has proved the written report Ext. Ka 1. She supported the case of the prosecution and stated in her deposition that she is Koli by caste. She further stated that her daughter at about 5.00 P.M. had gone for grazing the goats in the field. At that time age of the prosecutrix was about eight years. When she came after sun-set in the house, her daughter was lying on the cot and there was bleeding from her lower part. The prosecutrix informed her mother and told the entire story of the commission of rape.

VI. P.W. 2, Pappu alias Sundar is father of the prosecutrix. He was informed about the entire incident. He deposed that police in his presence and other people of the locality, arrested the appellant/accused at Chamri Gate near Hapur and memo of the arrest was prepared. He had given his thumb impression on the memo of the arrest of the accused. He was also witness of the recovery memo, Ext. Ka3.

VII. P.W.3, Dr. Deepa examined the victim on 22.6.2005 in the District Woman Hospital, Ghaziabad. She stated in her deposition that prosecutrix was forcibly raped at 5 P.M. on 22.06.2005 and the injuries found on the body of the prosecutrix can be caused due to rape. She has also proved the supplementary report Ext. Ka3, which was prepared and signed by her. In her opinion, there was injury on the private part of the victim by some blunt object. She further stated that penis may also comes to the category of blunt object.

VIII. P.W. 4, the prosecutrix recognized the accused Bhole who was present in the court after seeing him. She further stated that about two years ago at 4.00 P.M. she had gone for grazing the goats near Bitora and at that time, the accused came to her and asked her to accompany him and for that, he will give her Rs.2/-. He took her on back side of the school and committed rape. He also shut her mouth and when she shouted he ran away. She was bleeding and thereafter she reached her house, when her mother came, then she told entire story. Her mother lodged report and she was medically examined.

IX. P.W.5, Umesh Singh is the Investigating Officer of the case who investigated the case after adding of S.C. S.T. Act and filed a charge-sheet Ext. Ka-4. The statement of the accused person was recorded under Section 313 Cr.P.C. in which he had denied all the allegations made by the prosecution and also stated in the statement that he was falsely implicated in this case.

X. P.W. 8, Muni Lal was posted as Sub Inspector at Hapur Nagar Kotwali. He had initially investigated the case. He had recorded the statement of prosecutrix, her mother and had sent the victim for medical examinaiton. He had also recorded statements of the father of prosecutrix. In present of father of prosecutrix and other people, he arrested the appellant/accused on the basis of identification of prosecutrix. He had recorded the statements of witnesses and handed over the investigation to new I.O. after adding of Section of S.C. S.T. Act.

4. Sri Rajarshi Gupta, learned amicus curiae contended that the appellant/accused was falsely implicated in the case. The name of the accused Bhole Sharma was not mentioned in the complaint made by the mother of the prosecutrix. In the F.I.R. it was only mentioned a person who belongs to Chamari Village met on the road and took her on bicycle behind the school and committed rape with her against her will after shutting her mouth. Learned counsel for the appellant further contended that first time name of the accused person was mentioned in the arrest memo dated 26.6.2005 after four days from the date of the incident. No identification was made by the prosecution to identify the accused person. The prosecuterix has deposed first time before the court below in her statement that the person who was present in the court was the accused/appellant who had committed rape.

Further contention of the learned counsel for the appellant was that the accused was not a person who has actually committed the crime as he was not identified and his name was not mentioned in the F.I.R. It was further submitted that the medical report has also not supported the case of the prosecution as no definite opinion has been expressed by the Doctor that injuries found on the body of the prosecutrix were due to rape.

The learned counsel for the appellant contended that the conviction under Section 3(2) v of the S.C. S.T. Act, 1989 was based only on the presumption and no evidence was produced by the prosecution to prove the said allegation. Therefore, the appellant may be acquitted from the offence punishable for offence under Section 3(2) v of the S.C. S.T. Act, 1989.

5. Sri Rajeev Kumar Mishra, learned A.G.A. appearing for the State of U.P. vehemently opposed the jail appeal. He contended that the prosecutrix was a minor on the date of the incident. It was further contended that not holding the Test Identification Parade would not discredit the investigation or the prosecution case. He further contended that the discrepancies in the statement of the witnesses or the prosecutrix were such that same are not sufficient to demolish the prosecution case in the rape case. An accused can be convicted on the sole testimony of the prosecutrix. The appeal lacks merit and is liable to be dismissed.

6. We have considered the rival submissions made by learned counsel for the parties and perused the materials on record.

Before we proceed to examine the impugned judgment of the court below and the facts of the case, it may be desirable refer to settled legal proposition which has to be applied in the instant case.

In State of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 the Hon’ble Supreme Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice.

The Court observed as under:-

“15. It is necessary at the outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex-offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute ‘Evidence’ means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section. 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).

16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no C more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

“It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.”

In State of Punjab v. Gurmit Singh and others, AIR 1996, 1393, the Honb’le Supreme Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurance of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplish.

In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, the Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Conviction can be recorded on the sole testimony of the prosecuterix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.

A similar view has been taken by the Hon’ble Supreme Court in State of Tamil Nadu v. Ravi (2006) 10 SCC 534 and Wahid Khan vs. State of Madhya Pradesh, (2010) 2 SCC 9.

7. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

8. Holding of the Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the court is the real person involved in the commission of the crime. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained.

9. In Mulla and another vs. State of Uttar Pradesh, (2010) 3 SCC 508 wherein it has been held that the Test Identification Parades do not constitute substantive evidence. They are primarily meant for the purpose of providing the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. The Test Identification Parade can only be used as corroboration of the statement in the court.

10. Thus, it is evident from the above, that the Test Identification is a part of the investigation. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court.

11. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety.

12. In State of U.P. v. M.K. Anthony, AIR 1985 SC 48 the Hon’ble Supreme Court laid down certain guidelines in this regard which require to be followed by the court in such cases.

The Court observed as under:-

“While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.”

13. In State vs. Saravanan and another, AIR 2009 SC 152 the Hon’ble Supreme Court held as under:-

“……. while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken not of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies.”

14. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth from untruth exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused.

15. Thus, in view of the above, law on the point can be summarized to be that the evidence of the witnesses must be read as a whole and the cases are to be considered in totality of the circumstances and while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, should not be taken into consideration as they cannot form grounds to reject the evidence as a whole.

16. The Hon’ble Supreme Court held in several judgments that the absence of injury or mark of violence on the private part on the person of the prosecutrix is of no consequence when the prosecutrix is minor and would merely suggest want of violent resistance on the part of the prosecutrix. Case requires to be considered in the light of the settled legal proposition.

17. The counsel for the appellant submitted that in the F.I.R. name of the accused person was not mentioned and, therefore, the accused was not a same person who committed rape and later on his name was came in the light after four days, when he was arrested by the police. He further contended that no Identification Parade was done to identify the accused person. The prosecutrix has identified the person in the court at the time of the deposition of the statement. He has also stated that the medical report is also not established the definite opinion that rape was committed with the prosecutrix.

18. P.W.3 Dr. Deepa had examined the prosecution on 22.6.2005 in the District Woman Hospital, Ghaziabad. She found that axillary and public hair were not present. Labia majgra and labia minora were not found. Hymen fresh torn. There was laceration in para-urethral area which were bleeding on touch. Two slides of vaginal fluid and blood and discharge were taken to pathologist test. She has proved report Ext. Ka 2A. She has further stated that, if the prosecutrix was forcibly raped at 5.00 P.M. on 22.6.2005, these injuries can be caused. She has further proved the supplementary report on the basis of Pathalogical report dated 14.7.2005, according to which the blood was found on the slides for test but no spermatozoa was present. In her opinion, there was injury on the private part of the victim by some blunt object. In her opinion, penis comes to the category of blunt object.

19. We have considered the contradictions, inconsistency and discrepancies pointed out by the learned counsel for the appellant.

20. The Additional District Judge has applied settled principle of law in correct perspective which we have explained herein above.

21. The submission of learned counsel for the appellant is that Section 376 speaks about the punishment for rape. Sub-section (2) (f) makes it clear that whoever commits rape on a woman when she is under 12 years of age would be punished with R.I. for a term which shall not be less than 10 years but which may be for life and also be liable to be fine. Proviso appended to sub- section (2) makes it clear that Court, may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term less than 10 years.

22. He further contented that at the time of the incident the accused was not aware about the caste whether she belongs to Scheduled Caste or not, therefore, the appellant’s conviction under Section 3 (2) v of the S.C. S.T. Act be set aside.

23. It is clear from the above statutory provision that for the offence of rape on a girl under 12 years of age, punishment shall not be less than 10 years but which may extent to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence if the victim/prosecutrix is below 12 years of age.

24. Learned Amicus Curiae has relied on a decision of Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat 2012 (2) SCC 684 and contented that life imprisonment is not warranted and sentence may be reduced to the period already undergone i.e. more than 12 years.

25. To adjudicate the conviction of appellant under Section 3 (2) (v) of the SC/ST Act, 1989. We have perused Section 3 (2) (v) of the Act which reads as under:-

“(v) commits any offence under the Indian Peal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;”

26. We have considered the finding given in the impugned judgment dated 5.9.2008 passed by the trial court for the offence related to offence under Section 3(2) (v) of S.C. S.T. Act, 1989 in the light of evidence on the record. The trial court observed in the finding for offence under Section 3(2) (v) of the Act that there is no question of direct evidence but on the basis of facts and circumstances, that appellant had committed the offence of rape against the prosecutrix on the ground that she belongs to Scheduled Caste is not acceptable. It emerges from the statement of prosecutrix that no allegation was leveled by her that rape was committed by the accused/appellant, because she belongs to Scheduled Caste Category, therefore, there is no basis for presumption drawn by the trial court, so as to convict the accused appellant for the offence under Section 3 (2) (v) of the Act, 1989.

27. In the case of Masumsha Hasanasha Musalman V. State of Maharashtra, AIR 2000 SC 1876 Hon’ble Supreme Court held in para 9 :-

“9. Section 3 (2) (v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.

In the case of Ramdas And Others vs State Of Maharashtra AIR 2007 SC 155 the Hon’ble Supreme Court held as under:-

“At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The court below has not noticed any evidence to support the charge under the SC ST Act and was perhaps persuaded to affirm the conviction on the basis that the prsecutrix belongs to a scheduled caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.”

28. In view of the above, sine quo non for application of Section 3(2) (v) is that an offence must have been committed against a person on the ground that such person is a member of the S.C. S.T.. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the prosecutrix since she was a member of a Scheduled Caste. In the absence of the offence to that effect Section 3(2) (v) of the S.C. S.T. Act has no application.

29. For the foregoing reasons, in the instant case Section 3 (2) (v) of the SC/S T Act is not applicable; the sentence provided in Section 376 I.P.C. does not per se become life sentence. The court below, only by applying Section 3 (2) (v) of the SC S.T. Act, the life sentence was awarded. It is abundantly clear that words ” on the ground” show that the prosecution is required to prove that the target of crime was selected on the ground that he/she belongs to Scheduled Caste or Scheduled Tribe Category or that crime was committed for the reason that such person belongs to such community.

30. For the reasons stated above; Jail appeal being no.8574 of 2008 is partly allowed, the conviction of appellant under Section 3(2) v of S.C. S.T. Act is set aside. The conviction of appellant under Section 376 of I.P.C. is maintained but since the appellant has already undergone more than 12 years imprisonment, therefore, the sentence awarded to appellant is reduced to sentence already undergone i.e. more than 12 years by him subject to the condition that the appellant pays a sum of Rs.25,000/- to victim as compensation, in default, to further undergo R.I. for six months. Impugned judgment stands modified to the above extent.

31. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.

Order Date :-9th October, 2017

Asha

(Chandra Dhari Singh,J.) (Shri Narayan Shukla,J.)

 

 

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