Mewa Lal vs State on 30 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 47

Case :- JAIL APPEAL No. – 7493 of 2007

Appellant :- Mewa Lal

Respondent :- State

Counsel for Appellant :- From Jail,Brijesh Sahai Ac,Ramesh Chandra Yadav

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.)

01. Heard Sri Ramesh Chandra Yadav, learned Amicus Curiae for the appellant and Sri B. A. Khan, learned Additional Government Advocate for the State.

02. The present jail appeal has been preferred against the judgment and order dated 5.10.2006 passed by the Additional District Sessions Judge/Fast Tract Court no.1 Gorakhpur in S.T. No.270 of 2005, by which the appellant Mewa Lal was convicted under Sections 376 (2) and 376 (2)/511 I.P.C. and was sentenced to life imprisonment and fine of Rs.25,000/- for the offence punishable under Section 376 (2) I.P.C. and in default of payment of fine, he shall undergo further R.I. for two years. He was sentenced to ten years’ R.I. for the offence punishable under Section 376 (2)/511 I.P.C. and fine of Rs.10,000/-, in default of payment of fine, he shall further undergo R.I. for one year. Both the sentences shall run concurrently.

03. The fact and circumstances giving rise to this appeal are that the fateful incident took place on 18.3.2005 at about 10.00 P.M. when the complainant-Israwati was sleeping with her daughter, then aged about six years old. As per the prosecution case, the accused/appellant Mewa Lal took away the daughter/victim of the complainant with him to brick-kiln of one Tiwari and committed rape upon her. As per the complaint, the daughter of the complainant, on returning narrated the incident to the complainant. In other incident, on 20.03 2005 at about 4.30 A.M., the appellant took away a minor girl Chanmati daughter of Bhoyele Devi w/o Sri Mahendra Mallah and tried to commit rape upon her. She informed the incident to other villagers and on the information of the complainant, villagers started searching the appellant, who was finally caught on 24.3.2005 at about 10.00 P.M. near Moti Ram Bus Stand. After the accused was caught, an F.I.R. was lodged under Sections 376 and 511 I.P.C. against the appellant at police station Jhanga, District Gorakhpur. The police after recording the F.I.R. sent both the prosecutrixs/victims to the hospital for medical examination. After the completion of the investigation police filed a chargesheet under Section 376 (2) and 511 I.P.C. against the appellant. As he denied the charges, refuted the prosecution story and pleaded innocence, he was put to trial.

04. The Additional District Sessions Judge/Fast Track Court no.1, Gorakhpur after concluding the proceedings vide judgment and order dated 05.10.2006, convicted the appellant for committing rape a minor girl of six years old and sentenced him to life imprisonment and fine of Rs.25,000/- under Section 376(2) I.P.C. The appellant was also convicted for rape and attempt to commit rape upon another victim under Section 376 (2)/511 I.P.C. and sentenced to ten years’ R.I. and fine of Rs.10,000/-.

05. Aggrieved by the said judgment and order dated 5.10.2006 passed by the Additional District Sessions Judge/Fast Track Court no.1, Gorakhpur present jail appeal has been preferred before this Court on the ground that he was falsely implicated in the case and P.W.2, P.W.3 and P.W.4 were declared hostile, therefore, the prosecution has failed to prove its case beyond the reasonable doubt.

06. Learned counsel for the appellant submitted that the conviction cannot be based on the sole deposition of the prosecutrix. There is no other evidence to corroborate her version. The prosecutrix’s statement suffers from material discrepancies. On the date of examination of the prosecutrix no physical injury was found on her person or on her private part. P.W.2, P.W.3 and P.W. 4 were declared hostile. They had not supported the case of the prosecution. As per the medical report dated 28.3.2005, no definite opinion was given by Doctor about the rape. The appellant was falsely roped in the crime. Therefore, present jail appeal deserves to be allowed.

07. On the other hand learned A.G.A. for the State, vehemently opposed the jail appeal contending that the prosecutrixs/victims were minor on the date of the incident and they narrated each and every incident which were taken place on the date of the incident and they clearly stated in their deposition that they were raped/attempted to rape by the appellant/accused. The non-existence of any injury on the person of the prosecutrix cannot be ground to disbelieve her version. The discrepancies in the statements of the witnesses or the prosecutrixs are such that the same are not sufficient to demolish the prosecution case. In a rape case, accused can be convicted on the sole testimony of the prosecutrix, therefore, the appeal lacks merit and is liable to be dismissed.

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

09. Section 376 (2) of the Indian Penal Code reads as under:-

“(2) Whoever’-

(a) being a police officer, commits rape–

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in area by the Central or a state Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age;

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.”

10. Section 511 of the Indian Penal Code reads as under:-

“511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.–Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be commit­ted, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprison­ment provided for that offence], or with such fine as is provided for the offence, or with both.”

Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific Sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with deals. An attempt is made punishable, because every attempt, although it falls short of success, must create alone, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded.

11. 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.

12. In the case of Madan Gopal Kakkad vs. Naval Dubey (1992) 3 SCC 204, the Hon’ble Supreme Court held as under :-

“even slightest penetration of penis into vagina without rupturing the hymen would constitute rape-Medical officer on examination of the victim after 5 days finding an abrasion on the medial side of labia majora and redness around labia minora with white discharge but hymen intact admitting tip of a little finger-In view of absence of signs of full penetration, medical officer opining that there was an attempt to rape- Held, on the basis of the medical findings alone, it can be safely concluded that there was partial penetration within the labia majora or vulva or pudenda which in the legal sense is sufficient to constitute rape- Besides, extra-judicial confessions of the accused, corroborated by the reliable testimony of the prosecutrix herself as well as of other P.Ws, also showing commission of rape by the accused-Hence the opinion of attempt to rape given by an inexperienced medical officer (then aged 28 years) not acceptable-Conclusion of High Court that the offence made out was only under S.354 not reasonable and justifiable having regard to the totality of the evidence-Accused-respondent must be convicted under S.376.”

13. In the case of State of Rajasthan vs. Om Prakash (2002) 5 SCC 745, the Hon’ble Supreme Court held as under:-

“There is no force in the contention that if there was any forcible sexual intercourse, it would have resulted in some injuries upon the prosecutrix. Presence of injuries are not always a sine qua non to prove a charge of rape. It has to be kept in mind that the case under consideration is one of rape on a girl child aged eight years and not a grown up woman.”

The Hon’ble Supreme Court further held:

“Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. It is a crime against humanity. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are country’s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted. It is necessary for the courts to have a sensitive approach when dealing with cases of child rape. The effect of such a crime on the mind of the child is likely to be lifelong. A special safeguard has been provided for children in the Constitution of India in Article 39.

14. In the case of Rameshwar v. State of Rajasthan, 1952 SCR 377, the Hon’ble Supreme Court held:-

“The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.”

15. In the case of Aman Kumar v. State of Haryana (2004) 4 SCC 379 the Hon’ble Supreme Court held:

“In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.”

16. In the case of State of H.P. v. Dharam Pal, (2004)9 SCC 681, the Hon’ble Supreme Court held:

“Attempt to commit rape is a serious offence as it leads to an assault on the most valuable possession of women, that is their character, reputation, dignity and honour.”

17. In the F.I.R. dated 24.3.2005, it is mentioned that the fateful incidents took place on 18.3.2005 and in other incident the accused tried to commit rape on one another victim. The accused/appellant Mewa Lal took away the daughter of the complainant with him to brick- kiln of one Tiwari and committed rape upon her. At the time of the incident the victim was six years’ old child. The complainant narrated the whole incident to the villagers and on that information the villagers started searching the appellant and they caught the appellant on 24.3.2005 at about 10.00 A.M. near Moti Ram Bus Stand. The F.I.R. was promptly lodged and the complainant P.W.1 Israwati Devi had given all details of the incident in the F.I.R..

I8. P.W.1 Israwati Devi stated in her deposition that her six years’ old daughter narrated the incident about the rape upon her by the accused/appellant. She also deposed that on the fateful night she was sleeping with the victim and the accused/appellant took away her daughter for committing rape. She stated in her deposition that on the date when the incident took place she has taken some medicines, therefore, she was in deep sleep.

I9. P.W.2, Bhulai Devi who was the witness of the other incident in which, it was alleged that her daughter was raped by the appellant in different incident but she did not support the case of the prosecution. She was declared hostile by the prosecution. P.W.3 Ramnath did not support the case of the prosecution and was declared hostile. P.W.4, Shatrughan was declared hostile as he did not support the case of the prosecution.

20. P.W.5 the prosecutrix explained the incident in examination-in-chief and also denied about the false implication of the accused person. She narrated all minutes facts of the incident. She informed her mother after returning back from the place where the incident took place.

21. P.W.6 victim in another incident, admitted that she was taken away from her home and the appellant misbehaved with her but denied that she was raped by the appellant.

22. P.W.7, Dr. Raksha Tiwari conducted medical examination of the prosecutrix/victim. As per her deposition, no external injury was found on the body of the prosecutrix. As per medical report dated 28.3.2005, no definite opinion was given about rape.

23. P.W.8 Dr. L.P. Gupta stated in her deposition that no semen was found during examination of vaginal smear.

24. P.W.9 S.I. Dhoodh Nath Prasad in his deposition stated that he had taken the statement of the complainant-Israwati Devi and the victims. At the instance of both the victims, he went the place where incident took place and prepared site plan. He sent both the victims to the hospital for medical test and he completed investigation and after completion the investigation, he filed a chargesheet against the accused person.

25. The complainant Israwati Devi and the victim clearly stated in deposition that victim was raped by the appellant. As per the medical report, it was also found that hymen of the prosecutrix was torn, therefore, statement of the prosecutrix, complainant and other material evidence like medical report etc. supported the prosecution story.

26. 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.

27. In State of Punjab v. Gurmit Singh and others AIR. 1996 SC 1393 the Hon’ble 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 assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration.

28. In State of Himachal Pradesh vs. Raghubir Singh, (1993) 2 SCC 622, the Hon’ble 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. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.

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. That the evidence of a hostile witness in all eventualities ought not stand effected altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by the Court.

29. In 1991 3 SCC 627 Khujii vs. State of M.P. the Hon’ble Supreme Court held that it was announced that the evidence of a hostile witness remains admissible and is open for a court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.

30. Having analysed the facts and circumstances of the case, it is proved that the appellant had committed sexual assault with minor girls which was corroborated by the statement of the prosecutrixs and medical evidences are also in consonance with the prosecution version. The prosecution has sufficiently proved the case beyond all reasonable doubts. The nature of the offence in the present case is covered under Section 376 (2) and 511 I.P.C. when rape is committed with a minor girl below 12 years or attempted to commit the offence punishable under Section 376 (2). The appellant herein committed rape to the prosecutrix and made attempt to commit rape to the other prosecutrix/victim.

31. In the present case the trial court after considering all the facts and circumstances on record convicted the accused person/appellant for the offence punishable under Section 376 (2) I.P.C. and 376 (2)/511 I.P.C. The appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference. The appellate court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any, and significant enough to warrant reversal of the verdict of the trial court.

32. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellant. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charges levelled against the appellant have been proved beyond reasonable doubt. In our estimate, the view taken by the trial court is correct.

33. The sentence for the offence of rape with a minor girl as provided under the Code is for a term which shall not be less than 10 years but it can be extended to life imprisonment. This itself reflects the intent of the legislature to be very stringent in awarding sentence in serious heinous offence. Undoubtedly, there is a proviso to Section 376 (2) I.P.C. that the court may record specific and adequate reasons in the judgment in a case the sentence is for a term of less than 10 years. Thus, the normal sentence is a case where rape was committed on a minor girl is not less than 10 years.

34. In the present case, there is no extenuating and mitigating materials available on record on the basis of which the quantum of punishment can be reduced. Indication of any leniency in a case of sues a heinous nature would amount to travesty of justice and the plea of leniency would be wholly unjustified. Learned counsel for the appellant has urged that since appellant has no criminal history as he has already undergone more than 10 years, therefore, the sentence may be reduced to already undergone.

35. For the reasons stated above, jail appeal 7493 of 2007 is partly allowed, the conviction of the appellant under Section 376 (2) I.P.C. and 376 (2)/511 I.P.C. is maintained, but since the appellant has no criminal record and in the interest of justice, sentence of life imprisonment awarded to the appellant is reduced to term of 10 years and fine of Rs.25,000/- awarded by the court below is upheld, in default of the payment of the fine, he will further undergo six months. Impugned judgment stands modified to the above extent.

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

37. The learned Amicus Curiae Sri Ramesh Chandra Yadav shall be paid Rs.5,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

Dt. 30th October, 2017

Asha

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

 

 

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